Allahabad High Court
Raj Bahadur vs Bhuila Devi (Died) And 4 Others on 16 March, 2023
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 20
Case :- SECOND APPEAL No. - 47 of 2023
Appellant :- Raj Bahadur
Respondent :- Bhuila Devi (Died) And 4 Others
Counsel for Appellant :- Sachindra Dwivedi
Hon'ble Jaspreet Singh,J.
Heard Shri Sachindra Dwivedi, learned counsel for the appellant.
The instant second appeal has been preferred under Section 100 CPC against concurrent judgment and decree passed by the Civil Judge (Junior Division), Tanda dated 08.02.2019 in Regular Suit No.666 of 2012 (Raj Bahadur Vs. Bhuila Devi and others) whereby the suit preferred by the plaintiff-appellant seeking a decree of permanent injunction and cancellation of sale deed has been rejected and the plaintiff-appellant being aggrieved preferred a regular civil appeal under Section 96 CPC registered as Civil Appeal No.57 of 2019 which has also been dismissed by means of judgment and decree dated 16.12.2022.
Being aggrieved, the plaintiff-appellant has knocked the door of this Court by means of the instant second appeal.
Submission of the learned counsel for the appellant is that the property in question belonged to Bhuila Devi (now deceased) alongwith Chandrika Prasad and Amar Kumar respondents no. 1 to 3 who had executed an agreement in favour of the plaintiff in pursuance whereof the plaintiff had advanced a sum of Rs.70,000/-. It is also the case that the plaintiff was put in possession and he has also raised some constructions and the plaintiff is in possession of the said property in question.
It is also the case of the plaintiff that subsequently the Bhuila Devi, Chandrika Prasad and Amar Kumar executed a registered sale deed in favour of the respondents no.4 and 5 who are none other than the father and brother of the plaintiff. It is in the aforesaid circumstances that the plaintiff had instituted a suit seeking a decree for permanent injunction and cancellation of sale deed executed in favour of the respondents no.4 and 5. The said suit was registered as Regular Suit No.666 of 2012. The respondents contested the suit by filing the written statement and the respondents no.4 and 5 also preferred a counter claim.
Contentions of the respondents while disputing the case of the plaintiff was that they are the owners of the property in question. That no agreement, if at all, in favour of the plaintiff can come to his aid as it was on a ten rupees stamp paper and was unregistered. The plea regarding the maintainability of the suit in terms of Section 331 of the U.P. Z.A. & L.R. Act was also raised.
Upon exchange of pleadings the trial court framed seven issues. Primarily, the suit was contested on issue nos.1 and 2. It related to the fact as to whether the plaintiff was entitled to get a decree of cancellation dated 03.10.2012 and whether the plaintiff was entitled to a decree of permanent injunction in respect of the disputed property. The trial court considered and finding that the plaintiff could neither properly prove his plea of part possession in terms of Section 53-A of the Transfer of Property Act nor he could assert any right to assail the sale deed in favour of the respondents no.4 and 5 as the ground raised regarding misrepresentation was not properly proved. It is in view thereof that the suit of the plaintiff came to be dismissed by means of judgment and decree dated 08.02.2019. The plaintiff preferred a regular civil appeal under Section 96 CPC registered as Civil Appeal No.57 of 2019 which has also been dismissed by means of judgment and decree dated 16.12.2022.
Assailing the aforesaid two judgments, learned counsel for the appellant has attacked the aforesaid judgements on the ground that the two courts have failed to notice that the plaintiff was in possession of the property and the same was even corroborated by the Commissioner Report which has not been taken note of the two courts. It is further urged that the agreement which was entered between the respondents no.1, 2 and 3 in favour of the plaintiff was in custody of the respondent no.4 who was the father and even otherwise once the respondents no.1, 2 and 3 in part performance of the said contract had handed over the possession to the plaintiff, it was a vital fact which ought to have been noticed by the courts which they have failed to consider. In the aforesaid circumstances, it is urged that the aforesaid two judgments and decree suffer from substantial errors of law committed by the two courts and the appeal may be entertained.
Having considered the aforesaid submissions and from the perusal of the material on record, this Court finds that first and foremost the primary submission of the learned counsel for the appellant that the two courts have failed to take notice of the Commissioner Report regarding the possession pales into insignificance for the reason that whenever a Commission is issued under Order 26 Rule 9 CPC, it is only to ascertain a factual position and is never issued for collection of evidence or for proving the possession. The Commissioner is not entitled to give nor can it give any finding of possession. A party has to prove its possession by cogent and admissible evidence in accordance with law. Mere Commissioner's report cannot partake or substitute the independent evidence with which a party can prove its plea. In absence of any other independent evidence, the Commissioner's report cannot come to the aid of the appellant. [see Khwaja Moinuddin Chisti Language University Vs. Dr. Arif Abbas and other, Civil Revision No.470 of 2022 decided on 18.01.2023].
The learned counsel could not point out any evidence which established the possession of the appellant, hence the Court does not find favour with the first submission.
It is also to be noticed that the plea raised by the learned counsel for the appellant regarding part performance in terms of the Transfer of the Property Act also does not hold water for the reason that the alleged agreement was never produced before the court below. Even otherwise it is admitted case of the plaintiff-appellant that the said agreement to sell was unregistered and on a ten rupees stamp paper. In light of Section 33 of the Stamp Act read with Section 17 of the Registration Act coupled with the amendment made in the Transfer of Property Act, any such agreement relating to an immovable property beyond a valuation of Rs.100 is compulsorily registrarable from 01.07.1977. Even otherwise the essential ingredients for proving part performance is missing both in the pleadings nor it has been proved.
In view of the aforesaid, once for the aforesaid agreement did not have any legal sanctity and even otherwise was not placed on record the plea of part performance also does not have a valid basis.
The issue regarding the locus of the plaintiff to challenge the sale deed executed by the respondents no.1, 2 and 3 in favour of the respondents no.4 and 5 could also not be established. Mere plea of fraud and misrepresentation has neither been pleaded in accordance with Order 6 Rule 4 CPC nor proved with cogent evidence.
Considering the aforesaid and the concurrent findings which have been recorded by the two courts which are based on proper appreciation of evidence and the material on record, this Court does not find that there is any substantial question of law involved in the instant second appeal which is sans merit and is accordingly dismissed at the admission stage. In the facts and circumstances, there shall be no order as to costs.
Order Date :- 16.3.2023
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