Allahabad High Court
Shiv Sampat vs Sushil Kumar And 2 Others on 29 October, 2015
Bench: Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 19
Case :- SECOND APPEAL No. - 815 of 2015
Appellant :- Shiv Sampat
Respondent :- Sushil Kumar And 2 Others
Counsel for Appellant :- C.N. Mishra
Hon'ble Pramod Kumar Srivastava, J.
1. Heard learned counsel for the appellant on point of admission of the Second Appeal.
2. Original Suit No. 59/ 2004, Shiv Sampat Vs. Sushil Kumar & others, was filed for relief of cancellation of sale deed, which was dismissed by judgment dated 17.11.2009 of Civil Judge (Junior Division), Chitrakoot. Against this judgment Civil Appeal no. 67/2009, Shiv Sampat Vs. Sushil Kumar & others was preferred, which was dismissed by judgment dated 07.08.2015 of Additional District Judge, Court No.-4, Chitrakoot with special cost. Against both the judgments of the trial court and the first appellate court, this second appeal has been preferred by the plaintiff of the original suit.
3. The plaint case in brief was that plaintiff (/appellant) had entered into an unregistered agreement to sell of disputed property with defendant no.-1 Sushil Kumar on 9.5.1988. From that date he is in possession and cultivation of disputed agricultural land. The defendant no. 1 had executed registered sale-deed dated 29.08.2003 of said property in favour of defendants nos. 2 & 3. Since defendant no.-1 had executed this sale-deed against the earlier unregistered agreement to sell with plaintiff, therefore, this registered sale-deed dated 29.8.2003 should be cancelled.
4. The trial court had received written statements of defendants, framed issues, accepted evidences of the parties and thereafter passed its judgment dated 17.11.2009 on merit, by which original suit was dismissed with finding of fact that there had been no agreement to sell between the plaintiff-appellant and defendant no.-1. Trial court had also held that the alleged unregistered agreement to sell is barred by the provisions of Section 17 of Registration Act. Trial court had also appreciated evidences and gave finding of fact that alleged agreement to sell pleaded in plaint is a forged document.
5. Against the judgment of trial court, Civil Appeal no. 67 of 2009 was preferred, in which first appellate court had confirmed the findings of facts given by trial court and held that the alleged unregistered agreement to sell dated 09.05.1988 between plaintiff and defendant is not proved and in any case such agreement cannot be legally read in favour of plaintiff-appellant. First appellate court had also held that plaintiff claimed his right on the basis of agreement to sell but had not filed suit for specific performance of contract and sought relief of cancellation of sale-deed by owner defendant no.-1 in favour of purchasers defendant nos. 2 & 3. Therefore his suit is barred by provisions of section 34 and 41 of Specific Relief Act. In absence of alleged agreement to sell between plaintiff-appellant and defendant-respondent no.-1 the court had disbelieved theory of execution of any such deed. With these findings, first appellate court had imposed special cost of Rs. 5,000/- on plaintiff-appellant and dismissed the appeal by its judgment dated 7.8.2015.
6. There are concurrent findings of fact of the two courts below that the plaintiff-appellant had failed to prove his plaint case regarding alleged agreement to sell between him and respondent no.-1 Sushil Kumar. Both the courts have given specific finding that there has been no agreement to sell between plaintiff-appellant and defendant-respondent, and that plaintiff-appellant had stated incorrect facts in pleading and evidence. Both the lower courts had given finding of fact that plaintiff-appellant could not prove grounds for cancellation of sale-deed mentioned in plaint. These findings have been given after consideration of facts, circumstances and evidences. In this matter plaintiff-appellant had pleaded his rights on basis of an unregistered agreement and had utterly failed to prove the same. It is settled legal position that no right can accrue to any person in immoveable property on basis of unregistered agreement.
7. On examination of the reasonings 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 and based upon proper appreciation of the entire evidence on record. No question of law much less a substantial question of law was involved in this 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-plaintiff can be sustained.
8. In view of the above, this Court finds that no substantial question of law arises in this appeal. The second appeal is dismissed.
9. Let a copy of this order be sent to court concerned.
Order Date :- 29.10.2015
SR
