Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 1286 (ALL)

Lakhmeer Khan v. Bijendra Singh

2016-04-07

PRAMOD KUMAR SRIVASTAVA

body2016
JUDGMENT Pramod Kumar Srivastava, J. 1. Heard learned counsel for the parties on the point of admission of second appeal and perused the records. 2. Original suit no. 618/2010 filed by plaintiff for relief of permanent injunction. In the plaint of this suit, no specific cause of action for the relief sought in the plaint is mentioned. According to the plaint case, defendant had fraudulently got executed the registered agreement for sale of property of plaintiff in favour of defendant, when plaintiff requested him to get the said registered deed of agreement to sell cancelled, then he refused, so plaintiff had filed suit for permanent injunction. 3. After affording opportunity of hearing to the parties, Second Additional Civil Judge (S.D.), Gautam Budh Nagar had dismissed the suit by its judgment dated 28.03.2014 with specific finding that plaintiff had willingly executed the registered agreement to sell in favour of defendant and obtained advance consideration for the sale. The trial court had found that plaintiff had failed to prove his case, so suit was dismissed. 4. Against the judgment of trial court, Civil Appeal no. 21/2015 was preferred by the plaintiff, which was heard and dismissed by the judgment dated 23.02.2016 of Additional District Judge/Special Judge (SC/ST Act), Gautam Budh Nagar. In this judgment the first appellate court had independently appreciated the evidences and came to the conclusion that registered agreement to sell in question was executed by plaintiff/appellant after receiving advance consideration of Rs. 2,72,000/- before Sub-Registrar. The learned appellate court had found that plaintiff had failed to prove his case and this Court has confirmed the finding of the trial court and dismissed the first appeal. Against the judgment of trial court as well as first appellate court, present second appeal has been preferred by the plaintiff of original suit. 5. Learned counsel for the appellant contended that defendant/respondent is petition writer of Sub-Registrar office and deceived the plaintiff and got executed the deed of agreement to sell instead of document of lower court. He contended that lower courts had not properly appreciated the evidences, therefore their judgments are erroneous. So appeal should be admitted for being allowed. 6. Learned counsel for the respondent contended that no deception or fraud was committed in execution of registered agreement to sell. He contended that lower courts had not properly appreciated the evidences, therefore their judgments are erroneous. So appeal should be admitted for being allowed. 6. Learned counsel for the respondent contended that no deception or fraud was committed in execution of registered agreement to sell. He submitted that one of the marginal witness of the said registered agreement to sell is son of plaintiff/appellant who is educated person and there is no possibility of any fraud or deception. He further submitted that there has been concurrent and acceptable finding of fact of the two lower courts to the effect that appellant had failed to prove his case, so appeal should be dismissed. 7. From a perusal of the record, it appears that registered agreement to sell in question was executed by plaintiff in favour of defendant/respondent after receiving advance consideration of Rs. 2,72,000/-. The trial court and lower appellate court had decided the matter on the basis of evidences available before them and gave finding to that effect in favour of defendant and against the plaintiff/appellant. Such concurrent findings of fact are given on the basis of proper appreciation of all evidences available before lower courts. The findings given by the two lower courts do not appear to be infirm or perverse, so it cannot be interfered in second appeal by re-appreciation of evidence. 8. Apart from it, the cause of action shown in the plaint is that defendant had refused to get the registered agreement to sell in question cancelled in spite of requests of plaintiff, so plaintiff had filed the suit for permanent injunction. This alleged cause of action has no connection with relief of permanent injunction sought. Therefore, for the relief sought in plaint, there exists no cause of action either in the plaint or in evidence. For these reasons, plaint is liable to be rejected under the provisions of Order 7 Rule 11(a) CPC. 9. The only dispute to be determined in this matter was as to whether plaintiff being owner of the disputed property is entitled for the relief of permanent injunction or not. As discussed above, relief of permanent injunction was sought on the basis of alleged denial to cancel the agreement to sell, which has no connection with relief sought. No specific cause of action is mentioned in the plaint. So plaint is liable to be rejected. As discussed above, relief of permanent injunction was sought on the basis of alleged denial to cancel the agreement to sell, which has no connection with relief sought. No specific cause of action is mentioned in the plaint. So plaint is liable to be rejected. Apart from it, cause of action, as contended by counsel for appellant, relating to cancellation of registered agreement to sell was not proved in this case. The alleged point to be determined related to question of fact and no question of law. In fact, no substantial question of law arises in this matter. Such dispute can be determined on the basis of evidence as has been done by the lower courts. 10. On examination of the reasoning recorded by the trial court, which are affirmed by the learned first appellate court in first appeal, I am of the view that the judgments of the trial court as well as the first appellate court are well reasoned, based upon proper appreciation of the entire evidence on record. No question of law, much less a substantial question of law was involved in the case before the High Court. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial court that has been affirmed by the first appellate court to warrant interference in this appeal. None of the contentions of the learned counsel for the appellant- plaintiffs can be sustained. 11. In view of the above, this Court finds that no substantial question of law arises in this appeal. The second appeal is dismissed.