Allahabad High Court
Suresh And Another vs Ramdev And Others on 7 February, 2023
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 38
Case :- SECOND APPEAL No. - 18 of 2007
Appellant :- Suresh And Another
Respondent :- Ramdev And Others
Counsel for Appellant :- Madhav Jain,A.K. Singh,K.S. Chauhan,K.S.Chahar,S.C.Verma,S.P.S. Chauhan,Satya Prakash Sharma,Virendra Sinha
Counsel for Respondent :- Km. Kamini Pandey,Ajai Kumar Dubey,Ajay Dubey
Hon'ble Salil Kumar Rai,J.
Heard counsel for the appellants.
This is a defendant's appeal challenging the judgment and decree dated 21.02.2000 passed by IIIrd Additional Civil Judge (Junior Division), District Agra decreeing Original Suit no. 16 of 1994 instituted by the plaintiff-respondent for permanent prohibitory injunction against the defendants as well as against the judgment and order dated 03.10.2006 passed by the Additional District Judge (Court No.17), District Agra dismissing Civil Appeal No.65 of 2000 filed against the decree of the trial court.
Original Suit no.16 of 1994 was filed by the plaintiff-respondent for a suit of permanent prohibitory injunction against the defendant-appellant on the pleading that they were owners in possession of the suit property by virtue of a sale deed dated 06.11.1948 executed in their favour by Fatte, the original owner of the suit property. The execution of the sale deed is not denied by the defendants. It is also not denied by the defendants that Fatte was the original owner of the suit property. However, defendants pleaded that through a registered gift deed dated 14.12.1939, Fatte had gifted the suit property to his grand-daughter Ram Katori and his grand-son Brijwasi. The defendants claimed that from Ram Katori the suit property was devolved by succession on Sushila Devi who had executed a sale deed dated 30.09.1993 in favour of the defendants and therefore, the defendants were owners in possession of the suit property. The defendants pleaded that through gift deed dated 14.12.1939, Fatte had gifted all his agricultural as well as non-agricultural immovable properties and, therefore, had no authority to execute the sale deed dated 06.11.1948 and on the said pleading, the defendants denied the right of the plaintiff for a decree of permanent prohibitory injunction.
The plea of the plaintiff was accepted by the courts below after holding that the gift deed dated 14.12.1939 did not relate to the suit property and further, the predecessor of the defendants had earlier accepted the title of the plaintiff over the suit property.
It was argued by the counsel for the appellants that the courts below have misread the gift deed dated 14.12.1939 while holding that the gift deed did not refer to the suit property and, therefore, the judgments and decrees of the courts below are contrary to law and liable to be set-aside.
I have considered the submissions of the counsel for the appellants and also perused the record.
In their impugned judgments, the courts below have rejected the plea of the defendants/ appellants on the ground that in a sale deed executed on 23.07.1963, the father of the defendants had admitted the tile of the plaintiffs over the suit property because the boundaries describing the property in the sale deed dated 23.07.1963 showed that the plaintiff was the owner in possession of the suit property.
I do not find any illegality in the opinion recorded by the courts below on the basis of the sale deed dated 23.07.1963. The defendants cannot take up a stand contrary to their predecessor. Apart from the aforesaid, it is also evident that the sale deed was executed by Fatte on 06.11.1948. The courts below have recorded a finding that the plaintiffs are in possession of the suit property. Neither Ram Katori or Brijwasi nor Sushila Devi i.e., the vendor of the defendants ever challenged the sale deed dated 06.11.1948 or instituted any suit for eviction of the plaintiffs or their predecessor from the suit property. The aforesaid facts were relevant to decide the issue as to whether the suit property was part of the gift deed executed by Fatte on 14.12.1939.
The findings recorded by the courts below are findings of facts based on material evidence on record and I do not find any perversity in the same.
No substantial question of law arises in the present appeal.
The appeal is dismissed.
Order Date :- 7.2.2023
Vipasha
