Allahabad High Court
Mathan Singh And 3 Others vs Khajan Singh And 8 Others on 31 October, 2022
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 18
Case :- SECOND APPEAL No. - 317 of 2016
Appellant :- Mathan Singh And 3 Others
Respondent :- Khajan Singh And 8 Others
Counsel for Appellant :- , ,Abu Bakht,Pramod Kumar Jain
Counsel for Respondent :- Rakesh Pandey, ,Shailesh Upadhyay
Hon'ble Ajit Kumar,J.
Heard Sri P.K. Jain, learned Senior Advocate assisted by Sri Himanshu Singh, learned counsel for the appellants and Sri Rakesh Pandey, learned Senior Advocate assisted by Sri Shailesh Upadhyay, learned counsel for the contesting respondents.
This second appeal arises out of the judgment and decree passed by the trial court confirmed in appeal, whereby the suit has been decreed for cancellation of the sale deed allegedly executed by the present appellants. A number of issues was framed and concurrent findings have come to be returned qua main defence taken by the appellants-defendants that even though Will was set up as duly executed by late Rambiri - owner of the suit property but no such Will at any point of time was produced either before the trial court or before the court of appeal.
The argument advanced by learned counsel for the appellants is that substantial question of law arises as to the maintainability of the suit itself because the plaintiffs who had instituted the suit were not sole heir and others who could be members of the larger family as the co-sharers ought to have been impleaded.
Yet another argument has been advanced that courts below have awarded very less amount of damages as compared to the improvement made by the appellant upon suit property.
Per contra, it is argued by learned counsel for the contesting respondents that no such issue was at all framed regarding maintainability of the suit on the ground that the co-sharers were not impleaded. The argument further advanced is that the suit has been decreed on the basis of the pleadings raised in the plaint and the only course open for the defendants was to produce the Will on the basis of which right was claimed to have been acquired in the property to enable him to execute the sale deed. It is argued that once the pleadings raised in the written statement were not got proved by the substantial piece of evidence in the form of the Will, then it were the defendants to suffer and not the plaintiffs.
Having heard learned counsel for the respective parties and their arguments raised across the bar and having gone through the judgment passed by the trial court confirmed in appeal, in my considered view, for the defence as was sought to be set up to acquire rights in suit property on the basis of Will, it was incumbent upon the appellant to have produced the same. The right that would have otherwise accrued to the plaintiffs but for the Will, would be taken to have accrued in the absence of Will.
In so far as the damages awarded to the defendant appellant by trial court in lieu of improvement made upon the property is concerned, the assessment thereof on the basis of evidence led and quantum fixed is a pure question of fact. Findings qua the damages having been returned by concurrent judgments, the same do not warrant any interference.
In the circumstances, I see no substantial question of law arising in this appeal so as to entertain it under Section 100 of Code of Civil Procedure, 1908.
Appeal lacks merit and is, accordingly, dismissed with no order as to cost.
Consigned to records.
Order Date :- 31.10.2022
Atmesh
