Allahabad High Court
Smt. Samrathi And 18 Others vs Late Smt. Inrawati And 7 Others on 10 August, 2022
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 5
Case :- SECOND APPEAL No. - 671 of 2022
Appellant :- Smt. Samrathi And 18 Others
Respondent :- Late Smt. Inrawati And 7 Others
Counsel for Appellant :- Ashok Kumar Dwivedi,Deepankar Dwivedi
Hon'ble Salil Kumar Rai,J.
Heard the counsel for the appellants.
This is a plaintiffs' second appeal challenging the judgment and decree dated 19th July, 2005 / 26th July, 2005 passed by the Civil Judge (Junior Division), Jaunpur in Original Suit No. 471 of 1975 whereby the suit of the plaintiffs was dismissed by the trial court and also against the judgment and decree dated 2nd May, 2022 / 12th May, 2022 passed by the Additional District Judge - III, District Jaunpur dismissing Civil Appeal No. 74 of 2005 filed against the decree of the trial court.
Original Suit No. 471 of 1975 was filed by the plaintiffs for cancellation of sale deed dated 6th September, 1974. The case of the plaintiffs was that they had agreed only to sale of Plot No. 1160 but the defendants had fraudulently prepared a sale deed including Plot No. 1155 and the house which belonged to the son of the plaintiffs. It was also the claim of the plaintiffs that they were not paid the sale consideration and, therefore, the sale deed was void. The courts below after considering the evidence on record have held against the plaintiffs.
It was argued by the counsel for the plaintiffs - appellants that Paper No. 41-A filed by the defendants which is a receipt showing payment of consideration was not marked as an exhibit and, therefore, the courts below have erred in law on relying on the same in dismissing the suit of the plaintiffs by holding that the plaintiffs - appellants had been paid the sale consideration. In support of his argument, the counsel for the plaintiffs - appellants has relied upon a judgment of this Court reported in Gulabpati vs. Pushpa Rani Pandey & 2 Ors. 2019 (11) ADJ 769.
The contention of the plaintiffs - appellants is not acceptable. It is not the case of the plaintiffs - appellants that Paper No. 41-A was not proved by the witnesses of the defendants. The failure of the trial court to mark the document as an exhibit is a mere irregularity which does not vitiate the judgments of the courts below. There is nothing on record to show and it is also not the case of the plaintiffs - appellants that they had raised any objections before the trial court to the effect that Paper No. 41-A cannot be read in evidence as the same was not marked as an exhibit and it is also not the case of the plaintiffs - appellants that such an objection was raised before the appellate court. It is settled that if the party to the case has not objected to the admissibility of evidence or it being read in evidence without being marked as an exhibit in the trial court, the same cannot be raised in appeal. The judgment referred by the counsel for the plaintiffs - appellants relates to secondary evidence wherein photo copies of the document read in evidence were filed and is, therefore, not applicable in the present case.
The findings recorded by the courts below are concurrent findings of facts based on evidence on record and this Court does not find any perversity or any other illegality in the judgments of the courts below so as to occasion interference by this Court in second appeal.
No substantial question of law arises in the present appeal.
The appeal is dismissed.
Order Date :- 10.8.2022
Satyam
