JUDGMENT : 1. Heard Sri V.K. Singh, learned counsel for the appellants, Sri N.L. Pandey, learned counsel for the respondent no. 4 and Sri Sanjeev Kumar Asthana, learned counsel for the respondent no. 3. 2. Present second appeal filed under Section 100 of CPC against the judgment and decree dated 28.02.2022 passed by the Additional District Judge, Court No. 5, Varanasi in Civil Appeal No. 311 of 1985 arising out of Original Suit No. 47 of 1979, which was partly decreed by Munsif Hawali vide judgment and decree dated 21.09.1985. 3. On 22.04.2002 this Court while admitting the present appeal framed following substantial question of law; “(i) Whether the judgment of the court below suffers from manifest illegality and cannot be sustained, in view of the fact that court below having found that sale deed in question executed by Hari Das was on receiving consideration of Rs. 8500/-but refusing to cancel the sale deed it did not direct to refund of the sale consideration?” 4. After hearing the matter, this Court frames additional substantial question of law which is as under; (ii) Whether the judgment of lower appellate court can be sustained, once finding was recorded that the sale deed executed was valid after payment of due consideration amount of Rs. 8500/-and without playing any fraud, then holding the sale deed to have been obtained by fraud by purchaser after execution of document in the office of Sub Registrar, Varanasi instead of Sub Registrar, Ram Nagar, District Varanasi. 5. Facts, in nutshell, are that property in dispute was recorded in the name of Hari Das, father of plaintiff respondent no. 1 Vikrama Singh (since deceased). Initially the owner of the land being plot no. 206 measuring 0.47 decimal was recorded in the name of Mukundi, who had two sons namely Barsati and Ram Karan. After the death of Barsati and Ram Karan the property being joint Hindu family property was inherited by widow of Barsati i.e. Harbansia and son of Ram Karan i.e. Hari Das. The name of Hari Das was recorded in the revenue records in the basic year. On 04.12.1978 Hari Das executed a registered sale deed in favour of defendant appellants. According to the plaintiff respondent no. The name of Hari Das was recorded in the revenue records in the basic year. On 04.12.1978 Hari Das executed a registered sale deed in favour of defendant appellants. According to the plaintiff respondent no. 1 when he came to know about the execution of sale deed in favour of defendant appellants by his father Hari Das, he filed Original Suit N. 47 of 1979 for cancellation of the sale deed which, according to him, was executed by playing fraud upon his father Hari Das, who had not executed the sale after receiving full consideration of Rs. 8500/-. 6. The defendant appellants contested the suit and filed their written statement and stated that the plaintiff respondent no. 1 did not object to the other sale deed executed by his father Hari Das which was well within his knowledge. The trial court framed the following issues; ^^1- D;k foØ; i= fnukad 4-12-78 ufoLrk gfjnk'k cgd jekdkar vkfn okn i= dh /kkjk 11 esa of.kZr dkj.kksa ds vk/kkj ij fujLr fd;s tkus ;ksX; gSA 2- D;k okn dk ewY;akdu de fd;k x;k gS vkSj iznŸk U;k; 'kqYd vi;kZIr gS]\ 3- D;k okn 34 fof'k"V vuqrks"k vf/kfu;e ls ckf/kr gS\ 4- oknh D;k vU; vuqrks"k ikus dk vf/kdkjh gS\^^ 7. Issue no. 1 was in regard to the fact that whether the sale deed executed on 04.12.1978 by Hari Das in favour of defendant appellants should be cancelled in view of the fact mentioned in paragraph no. 11 of the plaint. The trial court after taking note of the oral and documentary evidence adduced by the parties recorded a finding that as plaintiff respondent no. 1 was born prior to the coming of U.P.Z.A. & L.R. Act and the land in question was ancestral joint Hindu property, he had coparcenary share in the property in question and was thus entitled to half share in view of Section 171 of U.P.Z.A. & L.R. Act. The trial court on the basis of finding, while deciding issue no. 1 partly decreed the suit of the defendant respondent no. 1 and cancelled the sale deed dated 04.12.1978 to the extent that plaintiff had half share in the suit property. 8. The trial court on the basis of finding, while deciding issue no. 1 partly decreed the suit of the defendant respondent no. 1 and cancelled the sale deed dated 04.12.1978 to the extent that plaintiff had half share in the suit property. 8. Aggrieved by the judgment and decree of the trial court dated 21.09.1985 the defendant appellants filed Civil Appeal No. 311 of 1985 before the court of Additional District Judge, Court No. 5, Varanasi who framed the following point of determination; ^^1- D;k vihykFkhZx.k@izfroknhx.k 1 yxk;r 4 }kjk gjhnkl dks /kks[kk nsdj fookfnr vkjkth dk cSukek fcuk izfrQy fn;s gq;s djk;k x;k gSA ;fn gkW rks bldk izHkko\ 2- D;k fookfnr vjkth oknh@izR;FkhZ la[;k 1 dh iSr`d lEifr gS vkSj D;k LoŒ gjhnkl dks ;g tehu cspus dk vf/kdkj izkIr Fkk rFkk D;k cSukeas ds le; bl tehu ij vihykFkhZx.k@izfroknhx.k 1 yxk;r 4 dks dCtk ns fn;k x;k\ 3- D;k ekStk nknwiqj esa LoŒgjhnkl o oknh foØek falag dk dksbZ egq;s dk isM fLFkr Fkk\ ;fn ugh rks D;k iz'Ukxr cSukek /kkjk 28 jftLVªs'ku vf/kfu;e ds varxZr 'kwU; gS\ 4- D;k pdcanh ds nkSjku fcuk btktr fy;s gq,s iz'uxr cSukek fd;k x;k vkSj D;k okn mŸkj izns'k tksr pdcanh vf/kfu;e dh /kkjk 49 ds izkfo/kkuks ls ckf/kr gS\^^ 9. While deciding the first point of determination which was in regard to the fact that whether the defendant appellants had got the sale deed executed by playing fraud upon Hari Das, the lower appellate court found that there was no evidence which can demonstrate that any fraud was played by the defendant appellants and Hari Das after accepting Rs. 8500/-as sale consideration had executed the sale deed in favour of defendant appellants. While deciding the second point of determination, the lower appellate court recorded a finding that the property in dispute was an ancestral property and Hari Das was not legally entitled to sell entire piece of land. The lower appellate court while deciding the fourth point of determination found that there was no consolidation operation going on in the area in dispute. However, the lower appellate court while deciding third point of determination found that no Mahua tree existed on arazi no. 620, Dadupur, District Varanasi and there existed no trees on the disputed plot no. The lower appellate court while deciding the fourth point of determination found that there was no consolidation operation going on in the area in dispute. However, the lower appellate court while deciding third point of determination found that no Mahua tree existed on arazi no. 620, Dadupur, District Varanasi and there existed no trees on the disputed plot no. 206 and the land in dispute was situated in Mauja Mahmoodpur which lies within the jurisdiction of Sub Registrar, Ram Nagar and in view of Section 28 of the Registration Act, 1908 the registry could have been executed at the office of Sub Registrar, Ram Nagar and not at the office of Sub Registrar, Varanasi. The lower appellate court while rejecting the appeal of the defendant appellants decreed the suit of the plaintiff respondent no. 1 and cancelled the sale deed dated 04.12.1978 in entirety. Hence, present appeal. 10. Sri Vishnu Singh, learned counsel appearing for the defendant appellants, submitted that the plaintiff respondent no. 1 had not preferred any cross appeal or cross objection to the appeal filed by the appellants before the lower appellate court against the judgment and decree of the trial court dated 21.09.1985, and in absence of the same, the lower appellate court was not justified in decreeing the suit and modifying the decree passed by the trial court and in fact not considering the effect of provisions of Order 41 Rule 33 CPC. 11. Reliance has been placed upon the decision of Apex Court in case of Banarsi and others Vs. Ram Phal, AIR 2003 SC 1989 . He next contended that the sale deed of the property in dispute was executed at district Varanasi but the lower appellate court without there being any challenge to the said finding arrived by the trial court, had reversed the same for which it had no jurisdiction. According to him, the lower appellate court while cancelling the sale deed should have directed for refund of consideration amount alongwith interest when it had recorded a finding that Hari Das had voluntarily executed the sale deed after receiving full sale consideration of Rs. 8500/-. 12. He next contended that the plaintiff respondent no. According to him, the lower appellate court while cancelling the sale deed should have directed for refund of consideration amount alongwith interest when it had recorded a finding that Hari Das had voluntarily executed the sale deed after receiving full sale consideration of Rs. 8500/-. 12. He next contended that the plaintiff respondent no. 1 was never recorded as tenure holder of the land in dispute since 1359 fasli till date of execution of sale deed, and it is well settled that suit for cancellation of registered sale deed in question is not maintainable before the civil court for want of jurisdiction since it is only the recorded tenure holder who can maintain a civil suit for cancellation of sale deed and a person not recorded in revenue records is first required to seek declaration of status/title before the revenue court. Reliance has been placed upon a decision of Apex Court in case of Sri Ram & Another Vs. Ist Additional District Judge & others, JT 2001 (2) SC 573. Sri Singh next contended that once the plaintiff respondent no. 1 had failed to prove the factum of fraud by adducing any evidence whatsoever in respect of registration of sale deed in question, particularly when trial court had found the same to be valid, the lower appellate court was not justified in reversing the finding of trial court. 13. Sri N.L. Pandey, learned counsel, has put in appearance on behalf of respondent no. 4, who is a subsequent purchaser of the property in dispute which was sold by the plaintiff respondent no. 1 during pendency of the appeal to respondent nos. 3 and 4. Sri Pandey has submitted that when members of joint Hindu family hold bhumidhari rights in any holding they hold the same as tenant in common and not as joint tenants. According to him, each member of a joint Hindu family must be considered to be a separate unit for the exercise of the right of transfer and also for the purposes of devolution of bhumidhari interest of the deceased member. According to him, the land in dispute was never purchased or owned by Hari Das in his personal capacity and was inherited by him from his grandfather Mukundi. Sri Pandey contends that though the land was recorded in the name of Hari Das, plaintiff respondent no. According to him, the land in dispute was never purchased or owned by Hari Das in his personal capacity and was inherited by him from his grandfather Mukundi. Sri Pandey contends that though the land was recorded in the name of Hari Das, plaintiff respondent no. 1 being his only son had half of the share in the property in dispute in view of Section 171 of U.P.Z.A. & L.R. Act. 14. Reliance has been placed upon a Full Bench decision of this Court in case of Ram Awalamb Vs. Jata Shankar, 1969 AIR (All) 526. Reliance has also been placed upon another judgment of this Court in case of Chetanya Raj Singh Vs. II Additional Civil Judge & Others, 1977 AWC 289. 15. He next contended that though the plaintiff respondent no. 1 had not filed any cross appeal or cross objection but the lower appellate court in view of Order 41 Rule 33 CPC had the power to pass any decree or make any order which ought to have been passed or made and to pass or made such further or other decree or order as the case require, and thus power may be exercised by the court nothwithstanding that appeal is as to part only of the decree and may be exercised in favour of all or any of the respondent or parties, although such respondent or parties may not have filed any appeal or objection. 16. Reliance has been placed upon decision of Apex Court in case of K. Muthuswami Gounder Vs. N. Palaniappa Gounder, 1998 (7) SCC 327 . He then contended that the lower appellate court had rightly recorded finding while dealing with Section 28 of the Registration Act and returned a finding that fraud has been exercised while purchasing the land by the defendant appellants and the jurisdiction where the property was to be registered was the office of Sub Registrar, Ram Nagar, District Varanasi where the land, which was sold, exists and not at Varanasi. 17. I have heard learned counsel for the appellants and learned counsel appearing for respondent nos. 3 and 4. No one has put in appearance on behalf of legal heirs of plaintiff respondent no. 1, who were already brought on record vide order dated 03.10.2017. 18. 17. I have heard learned counsel for the appellants and learned counsel appearing for respondent nos. 3 and 4. No one has put in appearance on behalf of legal heirs of plaintiff respondent no. 1, who were already brought on record vide order dated 03.10.2017. 18. Both the substantial questions of law which arises for consideration in the present appeal are interconnected and shall be considered and dealt with together. 19. It is an admitted position from both the sides that name of Hari Das was recorded in the revenue records in the basic year i.e. 1359 fasli over plot no. 206 measuring 0.47 decimal. It is also not in dispute to either of the parties that Hari Das had succeeded the land originally recorded in the name of Mukundi, his grandfather. 20. Section 171 of U.P.Z.A. & L.R. Act provides for the general order of succession to the agricultural land. Plaintiff respondent no. 1 late Vikrama Singh, who was born prior to the coming of Act of 1950 had the coparcenary rights over the land which was held by his ancestors, though the name of his father Hari Das was recorded in the revenue record, which continued till the execution of sale deed by late Hari Das defendant respondent no. 2 in favour of defendant appellants in the year 1978. 21. The trial court rightly, while deciding the issue no. 1, held that Hari Das was entitled to half of the share in plot no. 206 and, thus, partly decreed the suit of the plaintiff respondent no. 1, holding that the sale deed executed by Hari Das in favour of defendant appellants for half of the land which belong to Hari Das to be valid sale, while it cancelled the sale deed for half of the land holding it to be land of plaintiff respondent no. 1. 22. The lower appellate court while deciding the appeal preferred by the defendant appellants categorically recorded a finding while deciding the first and second point of determination that the land in dispute was an ancestral property in which both the plaintiff respondent no. 1 and defendant respondent no. 2 i.e. late Vikrama Singh and late Hari Das had half share, and further the sale deed executed by Hari Das was after receiving the due consideration and there being no fraud played either by the appellants or Hari Das. 23. 1 and defendant respondent no. 2 i.e. late Vikrama Singh and late Hari Das had half share, and further the sale deed executed by Hari Das was after receiving the due consideration and there being no fraud played either by the appellants or Hari Das. 23. Once finding was recorded by the lower appellate court confirming the finding of trial court it was not correct to proceed and hold while deciding third point of determination on the basis of Section 28 of the Registration Act that fraud has been played and sale deed has been registered at the office of Sub Registrar, Varanasi in place of Sub Registrar, Ram Nagar, District Varanasi where the property in dispute is situated, on the strength of a Mahua tree lying at plot no. 620, Dadunagar which falls within the jurisdiction of Sub Registrar, Varanasi. The lower appellate court while considering the Section 17 and 28 of the Registration Act wrongly held the sale deed executed to be void. 24. Section 17 of the Registration Act, 1908 envisages that the documents mentioned therein shall be registered, if the property to which they relate is situated in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force. 25. Similarly, Section 28 states that every document mentioned in Section 17 so far as it affects immovable property shall be presented for registration in the office of Sub Registrar within whose sub district the whole or some portion of the property to which such document relates is situate. 26. On reading of both the Sections 17 and 28 it does not transpires that if the document regarding immovable property is not registered before the Sub Registrar of the sub district where the property is situated but before the Sub Registrar of another sub district the document would become void ab initio. From the reading of the said sections, the entire inference which can be drawn is that the documents can be said to be voidable document. 27. From the reading of the said sections, the entire inference which can be drawn is that the documents can be said to be voidable document. 27. In the present case, the suit for cancellation of sale deed has been filed by one of the coparcenar having right in the property and the trial court after adjudicating the matter had segregated his share and cancelled the sale deed as far as his share was concerned, while upholding the sale deed for the other part by the person who had the right over the property to that extent. The lower appellate court had neither reversed or upset the finding recorded by the trial court but it confirmed the finding to the extent of the validity of the sale deed executed by Hari Das in favour of appellants after payment of due consideration of Rs. 8500/-. The lower appellate court had also confirmed the finding that the land being ancestral property over which plaintiff respondent no. 1 had half the share. 28. In the present case, the suit for cancellation of sale deed was neither filed by vendor who had half share in the property, as such, finding recorded by the lower appellate court to the extent that sale deed executed by Hari Das was void in view of Section 28 cannot be sustained and same is set aside. In Muhammad Abdul Razack Vs. Syed Meera Ummal, AIR 1967 Madras 212, Madras High Court held that such document would not be void ab initio but would be voidable. 29. Coming to the argument raised from both the sides in regard to the power of lower appellate court exercising under Order 41 Rule 33 CPC, the Apex Court in case of Banarsi (Supra) held that wider the power, higher the need for caution and care in discretion while exercising the power, relevant paragraph nos. 13, 14 and 15 are extracted here as under; “13. We are, therefore, of the opinion that in the absence of cross appeal preferred or cross objection taken by the plaintiff-respondent the First Appellate Court did not have jurisdiction to modify the decree in the manner in which it has done. 13, 14 and 15 are extracted here as under; “13. We are, therefore, of the opinion that in the absence of cross appeal preferred or cross objection taken by the plaintiff-respondent the First Appellate Court did not have jurisdiction to modify the decree in the manner in which it has done. Within the scope of appeals preferred by the appellants the First Appellate Court could have either allowed the appeals and dismissed the suit filed by the respondent in its entirety or could have deleted the latter part of the decree which granted the decree for specific performance conditional upon failure of the defendant to deposit the money in terms of the decree or could have maintained the decree as it was passed by dismissing the appeals. What the First Appellate Court has done is not only to set aside the decree to the extent to which it was in favour of the appellants but also granted an absolute and out and out decree for specific performance of agreement to sell which is to the prejudice of the appellants and to the advantage of the respondent who has neither filed an appeal nor taken any cross objection. 14. The learned counsel for the respondent forcefully argued that even in the absence of appeal preferred by the plaintiff or cross objection taken by the plaintiff-respondent the Appellate Court was not powerless to grant the decree which it has done in exercise of the power conferred by Rule 33 of Order 41 of the CPC. Rule 33 of Order 41 as also Rule 4 thereof, which have to be read necessarily together, are set out hereunder: ORDER 41 Appeals from Original Decrees "33. Rule 33 of Order 41 as also Rule 4 thereof, which have to be read necessarily together, are set out hereunder: ORDER 41 Appeals from Original Decrees "33. Power of Court of Appeal.-The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees: Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order. Illustration A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X, appeals and A and Y are respondents. The Appellate Court decides in favour of X. It has power to pass a decree against Y. 4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all.-Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be." 15. Rule 4 seeks to achieve one of the several objects sought to be achieved by Rule 33, that is, avoiding a situation of conflicting decrees coming into existence in the same suit. Rule 4 seeks to achieve one of the several objects sought to be achieved by Rule 33, that is, avoiding a situation of conflicting decrees coming into existence in the same suit. The abovesaid provisions confer power of widest amplitude on the appellate court so as to do complete justice between the parties and such power is unfettered by consideration of facts like what is the subject matter of appeal, who has filed the appeal and whether the appeal is being dismissed, allowed or disposed of by modifying the judgment appealed against. While dismissing an appeal and though confirming the impugned decree, the appellate court may still direct passing of such decree or making of such order which ought to have been passed or made by the court below in accordance with the findings of fact and law arrived at by the court below and which it would have done had it been conscious of the error committed by it and noticed by the Appellate Court. While allowing the appeal or otherwise interfering with the decree or order appealed against, the appellate court may pass or make such further or other, decree or order, as the case would require being done, consistently with the findings arrived at by the appellate court. The object sought to be achieved by conferment of such power on the appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. Wider the power, higher the need for caution and care while exercising the power. Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the Court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate court exercising power under Rule 33 of Order 41.” 30. Reliance placed by respondents’ counsel on the decision of Apex Court in K. Muthuswami Gounder (Supra) does not help his case. Relevant paragraph no. 12 is extracted here as under; “12. Order XLI Rule 33 enables the appellate court to pass any decree or order which ought to have been made and to make such further order or decree as the case may be in favour of all or any of the parties even though (i) the appeal is as to part only of the decree; and (ii) such party or parties may not have filed art appeal. The necessary condition for exercising the power under the Rule is that the parties to the proceeding are before the court and the question raised properly arises one of the judgment of the lower court and in that event the appellate court could consider any objection to any part of the order or decree of the court and set it right. We are fortified in this view by the decision of this Court in AIR 1988 S.C. 54 . No hard and fast rule can be laid down as to the circumstances under which the power can be exercised under Order XLI Rule 33 C.P.C. and each case must depend upon its own facts. The rule enables the appellate court to pass any order/decree which ought to have been passed. No hard and fast rule can be laid down as to the circumstances under which the power can be exercised under Order XLI Rule 33 C.P.C. and each case must depend upon its own facts. The rule enables the appellate court to pass any order/decree which ought to have been passed. The general principle is that a decree is binding on the parties to it until it is set aside in appropriate proceedings, ordinarily the appellate court must not vary Or reverse a decree/order in favour of a party who has not preferred any appeal and this rule holds good notwithstanding Order XLI Rule 33 C.P.C.. However, in exceptional cases the rule enables the appellate court to pass such decree or order as ought to have been passed even if such decree would be in favour of parties who have not filed any appeal. The power though discretionary should not be declined to be exercised merely on the ground that the party has not filed any appeals. We are not impressed with argument that the finding as to the nature of Exhibit A6 the Security Deed has become final as the finding operates as res judicata. When the entire matter was still in appeal and any part of the finding could be varied by the appellate court it is idle to contend that the same had become final. So also when the matter had not attained finality and still in dispute the principle of res judicata could not arise. In some case finding recorded at an earlier stage will operate a res judicata if such finding had become final. In the present case that was not the position. The High Court had to find out the rights of the parties arising out of the deed under Exhibit A6 and necessarily had to give a finding one way or the other to determine the status of the appellant as puisne mortgagee. In doing so the High Court decided that the document Exhibit A6 did not amount to a charge and therefore, the appellant did hot derive any rights of puisne mortgagee thereunder, The High Court having so held proceeded further to upset the decree as otherwise if the decree for redemption remained in the face of the finding of non-existence of a charge with the consequent right as puisne mortgagee, the position would be anomalous if not absurd. And so, the High Court in the special circumstances arising in this case exercised the discretion vested in it under Order XLI Rule 33 C.P.C. It cannot be said that such a question was not germane to the determination of the matter in issue. To defend the finding in his favour the respondent could contend that the appellant could not claim to be a puisne mortgagee as no charge arises from Ex. A6, In that event it cannot be said that there is any inconsistency in the stand of respondent. Therefore, we find that there is no merit in the contention of the appellant and the same is rejected.” 31. Thus, from the judgment of Apex Court, it culls out that the power to be exercised under Order 41 Rule 33 CPC is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the Court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. In the case in hand, the suit of the plaintiff was partly decreed, against which he did not file any appeal and lost claim cannot be revived by the lower appellate court on the appeal preferred by the defendant. 32. Now coming to the argument raised by the appellants to the extent that only a recorded tenure holder can maintain a suit for cancellation of sale deed is clearly supported by the judgment of Full Bench of this Court in case of Ram Padarath Vs. II Additional District Judge, Sultanpur, 1989 RD 21, which has been approved by the decision of Apex Court in case of Sriram (Supra), wherein the Court has held that only a recorded tenure holder can maintain a suit for cancellation of sale deed and not by a person who is not recorded tenure holder, and he has to first get his title declared by the revenue court. 33. But in the present case the plaintiff respondent no. 33. But in the present case the plaintiff respondent no. 1 was having coparcenary right in the property in dispute and the name of Hari Das continued over the land in representative capacity, though late Vikrama Singh had half the share in the property, thus suit was maintainable by him for cancellation of sale deed and Full Bench of this Court in case of Ram Awalamb (Supra) had already clarified the legal position and the matter is no more res integra. 34. Now coming to the substantial question of law, framed above, this Court finds that the lower appellate court was not correct to decree the suit of the plaintiff respondent in entirety cancelling the sale deed dated 04.12.1978 executed by late Hari Das in favour of appellants, once it had confirmed the finding recorded by trial court as to the half of share of plaintiff respondent no. 1 Vikrama Singh and Hari Das over the land in dispute and there being no fraud played by Hari Das while executing the sale deed in favour of appellants after receiving consideration amount of Rs. 8500/-. 35. The lower appellate court faulted by not holding for refund of the amount received by Hari Das, once it had set aside the sale deed. The finding recorded by the lower appellate court holding the sale deed to be void ab initio in view of Section 28 of the Registration Act 1908 is not correct in view of provisions of Section 17 read with Section 28 of the Act, which only provides the place where the document in relation to the property has to be registered. In the present case the property was registered at the office of Sub Registrar, Varanasi instead of Sub Registrar, Ram Nagar, District Varanasi. 36. The word mentioned in Section 17 is the ‘district’ while the word ‘Sub Registrar’ within whose ‘sub district’ whole or some portion of property to which the document relates occurs in Section 28. The intention of the legislature was not to hold the document void ab initio but it only provided the place where the document should have been registered. In case of non-registration of the document at the place mentioned in Section 28 will render it only voidable. 37. The intention of the legislature was not to hold the document void ab initio but it only provided the place where the document should have been registered. In case of non-registration of the document at the place mentioned in Section 28 will render it only voidable. 37. Considering the facts and circumstances of the case, both the substantial questions of law, framed above, stands answered in affirmative i.e. in favour of appellants and against the respondents. The judgment and decree dated 28.02.2002 passed by the Additional District Judge, Court No.5, Varanasi in Civil Appeal No. 311 of 1985 is hereby set aside. The judgment and decree dated 21.09.1985 passed by Munsif Hawali is hereby restored. 38. Appeal is partly allowed.