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2017 DIGILAW 1699 (ALL)

BANKEY BIHARI v. KAUSHLESH TRIPATHI

2017-07-20

ANJANI KUMAR MISHRA

body2017
JUDGMENT : Anjani Kumar Mishra, J. Heard Shri V.D. Ojha, learned counsel for the appellant and Shri T.B. Pandey, who has filed caveat on behalf of the respondent No 2. 2. The instant second appeal arises out of suit for cancellation of a sale deed dated 16.12.1964 executed by the plaintiff's adoptive father. The suit has been concurrently dismissed by the two courts below. 3. The contention of the learned counsel for the appellant is that the trial court had framed as many as 19 issues in the suit. However only two issues were actually decided. 4. The second contention raised is that the courts below have accepted that the property in suit was ancestral property. They have also accepted that the plaintiff was the adopted son of Anandideen, the vendor in the sale deed in question. Therefore, from the date of adoption in the year 1946, plaintiff had a share in the ancestral property. His adoptive father could not have executed sale deed in question regarding the plaintiffs share in the property sold. 5. It is also contended that the adoptive father filed a suit under Section 209 of the UP Zamindari Abolition & Land Reforms Act against the plaintiff which was decided in term of a compromise on 21.12.1963. Under this compromise Anandideen had only a life interest in the land in question and could not alienate it. He had no right to execute a sale deed. It was also contended that the sale transaction having been executed without any consideration, it was a void transaction. 6. Shri T.B. Pandey, in rebuttal has submitted that the plaintiff filed an objection during consolidation proceedings and lost upto the Apex Court. His claim before the consolidation courts was one of adverse possession. The plea that the suit property was coparcenary property and, therefore, the plaintiff had right therein was never raised during the consolidation operations. 7. This plea is being raised for the first time before the second appellate court. Therefore, it is not liable to be considered. 8. Besides, the plaintiff was never recorded over the land in question and, therefore he should have sought a declaration in his favour. 7. This plea is being raised for the first time before the second appellate court. Therefore, it is not liable to be considered. 8. Besides, the plaintiff was never recorded over the land in question and, therefore he should have sought a declaration in his favour. Since he raised only a claim of the adverse possession and did not seek any declaration on the ground that the sale deed was of land wherein the plaintiff also had a share, he has rightly been refused the benefit of Section 14 of the Limitation Act. The suit has rightly been dismissed as hopelessly barred by limitation. 9. The courts below have recorded a finding that the plaintiff has not exercised due diligence while contesting the matter before the consolidation courts and, therefore, is not entitled to the benefit of Section 14 of the Limitation Act. 10. I have considered the submissions made by learned counsel for the parties and have perused the record. 11. Issue No. 2 framed by the trial court was whether the suit was barred by limitation. Issue No. 7 was whether the suit was barred by Order 7, Rule 11 CPC. Issue No. 11 was with regard to the maintainability of the suit it self. 12. The trial court decided these three issues together on the reasoning that the evidence for deciding these three issues was common. 13. While deciding these issues, the trial court observed that the plaintiff in his cross examination had admitted that Anandideen, his adoptive father, the vendor in the sale deed, had informed him about the sale deed and that it had been obtained by fraud. Along with the above, the plaintiff in his cross-examination also admitted that Anandideen had filed a suit for cancellation of the sale deed which had been dismissed. 14. In my considered opinion and in view of the afore noted admissions made by the plaintiff in his cross-examination, it was not open for him to have filed the instant suit for cancellation of the sale deed once the suit filed by the vendor himself, had been dismissed. 15. The above also renders the finding of the two courts below that the plaintiff is not entitled to the benefit of Section 14 of the Limitation Act immune from any interference at the second appellate stage. 16. 15. The above also renders the finding of the two courts below that the plaintiff is not entitled to the benefit of Section 14 of the Limitation Act immune from any interference at the second appellate stage. 16. On the question that Anandideen had executed a sale deed of land wherein the plaintiff also had a share as it was coparcenary property, Shri V.D. Ojha in rejoinder has drawn the attention of the Court to paragraphs 19 and 20 of the plaint wherein this plea appears to have been set up. However this plea does not appear to have been pressed before the courts below as no issue in this regard has been framed. 17. This Court, therefore, finds substance in the submission made by Shri T.B. Pandey, counsel for the caveator that this plea is being raised for the first time before this Court and is, therefore, not worthy of consideration. 18. Perusal of the judgement of the trial court clearly reveals that all the 19 issues framed therein have been specifically decided one way or the other. Therefore, there is no substance in the submission made by counsel for the appellant that all the issues were not decided. 19. Since the submissions made by the learned counsel for the appellant are found to be without merit and since no substantial question of law arises for consideration in this second appeal, the same is liable to be and is hereby dismissed.