Nagendra Singh And 2 Ors. vs Rajendra Kumar And 2 Ors.
2015 Latest Caselaw 5005 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 19
 

 
Case :- 	SECOND APPEAL No. - 986 of 2015
 

 
Appellant :- 	Nagendra Singh And 2 Ors.
 
Respondent :- 	Rajendra Kumar And 2 Ors.
 
Counsel for Appellant :- 	Yogesh Kumar Singh
 
Counsel for Respondent :- Vinay Kumar Singh
 

 
Hon'ble Pramod Kumar Srivastava,J.

1. Original Suit No. 458/1997, Nagendra Singh and others v. Indra Singh and others, was filed for the relief of cancellation of sale deed. By the judgment dated 22.2.2011 of Additional Civil Judge (Senior Division), Court No.-1, Muzaffar Nagar this suit was partly decreed for the cancellation of 3/4th share of property sold by sale deed in question. Against the said judgment of trial court, Civil Appeal no. 21/2011, Rajendra Kumar & another v. Nagendra Singh & others was preferred, which was allowed by Additional District Judge, Court No.-2, Muzaffar Nagar on 21.9.2015. By this judgment the judgment dated 22.2.2011 of trial court was set aside and original suit was dismissed. Aggrieved by this judgment of first appellate court, this second appeal has been preferred by the plaintiffs of the original suit.

2. Plaint case in brief was that disputed agricultural property was ancestral property of the parties, but during consolidation proceedings the parties had entered into compromise and name of defendant no.-1 Indra Singh was recorded on it as manager; therefore later on the name of defendant no.-1 was entered on disputed property as Bhumidhar. But, in fact, the defendant no.-1 had only 1/4th share in said property and had no right to sell the whole property. On 29.3.1988, defendant no.-1 had connived with other defendants no. 3 to 5 and executed registered sale-deed in favour of defendants no. 2 and 3, for which plaintiffs had never consented. Plaintiff had filed suit for cancellation of said registered sale-deed executed by defendant no.-1 in favour of defendants no. 2 and 3 on the ground that defendant no.-1 had only 1/4th share in it, and had no right to execute sale-deed of whole of the land, but he had executed sale-deed without consent of the parties, and the said sale-deed was based on fraud and was a void document.

3. Defendant no.-1 had filed written-statement, by which he had not denied the plaint averment and pleaded that although disputed property was ancestral one but the parties had entered into a family arrangement, by which defendant no.-1 had got management rights of disputed property and his name was entered on it in revenue records. He had executed registered sale-deed dated 29.3.1988 properly but cheque of its consideration was dishonoured. Therefore, sale-deed is liable to be cancelled.

4. Defendants no.-2 & 3 had denied the plaint averments and pleaded in their written-statements that disputed property was in ownership of defendant no.-1, who had sold it to defendants no. 2 and 3 for consideration, without any fraud. But later on plaintiff and defendant no.-1 had connived and filed suit for cancellation of sale-deed, which is liable to be dismissed.

5. After framing issues, accepting adduced evidences and hearing the arguments, the trial court had passed judgment dated 22.2.2011, in which it had held that since consolidation officer had recorded name of defendant no.-1 on the basis of his possession and he is merely a co-sharer of disputed agricultural property, therefore, the defendant no.-1 was owner of only 1/4th share of disputed agricultural land. So his sale-deed is valid for 1/4th share, and is liable to be cancelled for remaining 3/4th share. On this ground, trial court had cancelled sale-deed in question for 3/4th share of sold property.

6. These facts, circumstances, and legal position were considered by first appellate court, which had held that after consolidation proceedings name of defendant no.-1 was recorded. Had he not been owner of whole share of disputed property, then plaintiffs would have objected his sole ownership during consolidation proceedings, which they had not done. First appellate court had also held that after consolidation, the revenue records were prepared; and the revenue court had held the defendant no.-1 to be the owner of whole property, but it was not objected by plaintiffs. These facts proved that defendant no.-1 had been in possession of disputed property as its sole bhumidhar with transferable rights. Therefore the sale-deed executed by him for whole share of disputed agricultural property is not access of his share, and not erroneous. First appellate court had meticulously considered evidences and even considered the pleadings of plaint and written statement of defendant no.-1 for non-payment of consideration. It considered the fact that after nine months of execution of sale-deed in question, the defendant no.-1 had executed another sale-deed of his other property in favour of defendant no.-2, and held that had there been non-payment of consideration earlier, then defendant no.-1 would have not sold his other property again to defendants no. 2 and 3. On the basis of these findings the first appellate court had reversed the finding of trial court that defendant no.-1 was not the sole owner of disputed property. First appellate court had appreciated and discussed the evidences and held that grounds mentioned for cancellation of sale-deed were not proved. Therefore, appeal was allowed, the judgment of trial court is set aside and original suit was dismissed.

7. Learned counsel for the appellants contended that only civil court has jurisdiction to cancel a document. He contended that findings of the first appellate court are erroneous because entries in revenue records do not create rights. He contended that even defendant no.-1 had accepted to be the manager of his family property, therefore his pleading should be accepted and appeal should be admitted for being allowed.

8. Learned counsel for the respondents (defendants no. 2 & 3) contended that defendants no. 2 and 3 were bona fide purchaser for value in good faith, who had purchased property from its bhumidhar. Defendant no.-1 had become sole bhumidhar of disputed property after consolidation proceedings, and thereafter declaration of his rights as bhumidhar in revenue records, therefore, his sale of whole disputed property to respondents was not erroneous. He also contended that after the execution of disputed sale-deed name of defendants no. 2 and 3 have been noted in revenue records as bhumidhar. The bhumidhari rights of appellants cannot be declared by civil court, and appeal is liable to be dismissed.

9. Admittedly, plaintiffs and defendant no.-1 of original suit were members of same family. It is also admitted fact that after consolidation name of defendant no.-1 was recorded as sole title holder of disputed agricultural property. It is also admitted that after conclusion of consolidation proceedings, no objection was raised by plaintiffs or any member of their family; and after notice to plaintiffs consolidation proceedings were concluded in favour of defendant no.-1. In these circumstances, not only plaintiffs are legally estopped from denying the title of defendant no.-1 but also their claim is barred by Section-49 of the Consolidation of Holdings Act. Since name of defendant no.-1 was recorded as bhumidhar of whole of the disputed property in revenue records after consolidation, and since after execution of disputed sale-deed the name of defendant no.-2 had been recorded as bhumidhar in revenue records over disputed agricultural land within knowledge of plaintiff-appellants, therefore this contention of learned counsel for the respondents is not unacceptable that suit is barred by Section 331 of U.P. Z.A. & L.R. Act.

10. Plaintiffs are admittedly not recorded as owner or bhumidhar of disputed agricultural property. Earlier, consolidation court and thereafter revenue court had declared defendant no.-1 as sole bhumidhar of disputed property and later on defendants no. 2 and 3 (respondents) were declared bhumidhar of disputed property, and original suit for cancellation of sale-deed has been instituted for exercising bhumidhari rights over disputed agricultural land. Therefore, the main relief sought in plaint and in present second appeal is exercise of Bhumidhari rights over disputed agricultural land. Therefore, relief sought for cancellation of sale-deed is, in fact, ancillary relief which is based on main relief of declaration of bhumidhari right s of disputed agricultural property. Since declaration and determination of Bhumidhari rights can be declared by revenue courts only therefore ancillary relief of cancellation of sale-deed based on rights over bhumidhari land is also within jurisdiction of revenue. The judgment of first appellate court based on such findings is apparently not erroneous and is correct. After appreciation of facts, evidences and circumstances, the first appellate court had rightly held that grounds mentioned for cancellation of sale-deed in question were not proved, therefore there appears no error in impugned judgment of first appellate court.

11. On examination of the reasonings recorded by the learned first appellate court in first appeal, I am of the view that the judgments of the first appellate court is well reasoned, based upon proper appreciation of the entire evidence on record. In light of above discussion and admitted legal position, no substantial question of law is involved in this case before this Court. No perversity or infirmity is found in the findings of fact recorded 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.

12. In view of the above, this Court finds that no substantial question of law arises in this appeal. The second appeal is dismissed.

Order Date :- 3.12.2015

SR