Suresh vs Dhunni And 5 Others
2022 Latest Caselaw 1234 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 4
 

 
Case :- SECOND APPEAL No. - 232 of 2022
 

 
Appellant :- Suresh
 
Respondent :- Dhunni And 5 Others
 
Counsel for Appellant :- Akhilesh K. Dwivedi,Suresh Singh
 

 
Hon'ble Salil Kumar Rai,J.

This is a plaintiff's second appeal challenging the judgment and decree dated 10.5.2013 passed by the Civil Judge(Junior Division), Fatehpur dismissing Original Suit No.550 of 2007 as well as the judgment and decree dated 28.10.2021 passed by the Additional District Judge/F.T.C. 1st, Fatehpur affirming the decree of the trial court.

The dispute in the proceedings before the courts' below was regarding validity of the sale deed dated 11.1.2005. The suit was filed for cancellation of the aforesaid sale deed on the ground that Shiv Mohan who admittedly was the original tenure holder of the suit property had not executed the sale deed and the sale deed was executed by Dhunni acting as Shiv Mohan. The appellant is the son of Shiv Mohan. It was the claim of the plaintiff-appellant that Shiv Mohan was missing for the last 15 to 16 years and therefore, should be presumed to be dead. The case of the defendant was that Dhunni and Shiv Mohan were the same person.

The courts' below after assessing the different evidences have recorded a finding that Dhunni and Shiv Mohan were the same person and the sale deed was executed by Shiv Mohan. The courts' below while holding against the plaintiff-appellant have relied on the order dated 16.2.2002 passed by the Sub Divisional Magistrate whereby the mutation in favour of the appellant under Pak-11 was recalled. The order under Pak-11 was passed on the presumption mooted by the appellant regarding the death of Shiv Mohan. Further, while rejecting the plea of the plaintiff-appellant, the courts below have also considered the testimony of P.W-3 in which P.W-3 stated that Shiv Mohan had died 20 to 25 years before. The testimony of P.W-3 clearly contradicted the case of the plaintiff. Considering the aforesaid evidence, the courts' below have dismissed the case of the plaintiff.

The findings recorded by the courts' below are concurrent findings of facts based on material and evidence available on record.

There is no perversity in the aforesaid findings. No substantial question of law arises in the second appeal.

The appeal is dismissed.

Order Date :- 12.4.2022

IB