Allahabad High Court
Jitendra Sharma vs Chhedilal And 4 Others on 6 July, 2021
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 33
Case :- SECOND APPEAL No. - 159 of 2021
Appellant :- Jitendra Sharma
Respondent :- Chhedilal And 4 Others
Counsel for Appellant :- Santosh Kr. Singh Paliwal,Deepak Kumar Jaiswal
Counsel for Respondent :- Rahul Mishra
Hon'ble Ashwani Kumar Mishra,J.
Heard Sri Deepak Kumar Jaiswal, learned counsel for the appellant and Sri Rahul Mishra, learned counsel for the respondents.
This Second Appeal is by the vendor and vendee arising out of two suits filed for cancellation of sale deed dated 19.08.2006 in which appellant Jitendra Sharma is the vendee and Nirmala Devi is the vendor. The suit itself was filed by Chedi and Suresh Kumar, two out of three brothers, who have jointly inherited the property from their father late Durga Prasad. Suit No. 747 of 2006, for cancellation of sale deed, was dismissed by the trial court with the finding that shares of the parties had already been segregated which was also acknowledged in a subsequent memorandum of understanding executed in the year 1979. The other Suit No.777 of 2006 was by the vendee for permanent injunction which was decreed by the trial court. The lower appellate court has reversed the decree of the trial court after returning a finding that memorandum of understanding created rights and required compulsory registration. Reliance has been placed upon the judgment of the Supreme Court in the case of Sri Sita Ram Bhama Vs. Ramvatar Dhama, AIR 2018 SC 3057. The lower appellate court has consequently allowed the plaintiff's suit for cancellation of sale deed No. 747 of 2006 and dismissed the suit No.777 of 2006 of the vendee for permanent injunction. Aggrieved by the judgment of the lower appellate court two appeals have been preferred which are clubbed together. The first appeal is by the vendee Jitendra Sharma while other appeal is by Smt. Nirmala Devi and two others who are the vendors. Various arguments have been advanced by learned counsel for the parties. An application has also been filed for bringing on record additional evidence wherein a sale deed executed by Chedi is proposed to be brought on record. It is urged that once Chedi has himself executed a subsequent sale deed in respect of a specific property and not share, it would be open for him to dispute the existence of family settlement in which shares were allegedly segregated.
Before proceeding to hear the appeal on the question of admission it would be appropriate to summon the lower court record on the expense of the appellant. Records will be summoned by a special messenger for which cost would be deposited by the appellant within a week.
The respondents may also file their objection to the application filed under Order 41, Rule 27 of the Code of Civil Procedure which would also be considered at the time of hearing the parties on the question of admission.
List this matter as fresh, once again, before the appropriate Court on 05.08.2021.
Order Date :- 6.7.2021
Abhishek Singh
