Allahabad High Court
Hemlata vs Rajendra Prasad on 23 May, 2023
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:36812
Court No. - 19
Case :- SECOND APPEAL No. - 71 of 2023
Appellant :- Hemlata
Respondent :- Rajendra Prasad
Counsel for Appellant :- Amit Bhardwaj,Bhairo Nath
Hon'ble Jaspreet Singh,J.
Heard Shri Amit Bhardwaj, learned counsel for the appellant.
The instant second appeal has been preferred assailing the concurrent judgment and decree dated 24.01.2023 passed by the Additional District Judge, Court No.1, Lakhimpur Kheri in Civil Appeal No.16 of 2015, whereby the appeal of the appellant was dismissed and the judgment and decree dated 21.01.2015 passed by the Additional Civil Judge, Senior Division, Court No.3, Lakhimpur Kheri in Case No.102 of 2007 has been affirmed. The consequence of the aforesaid is that the sale deed said to have been executed by one, Smt. Munni Devi in favour of the appellant dated 14.03.2007 stands cancelled.
The submission of the learned counsel for the appellant is two fold. He submits that the respondent Rajendra Prasad, who was the plaintiff before the Court, did not have the locus to file the suit seeking cancellation of the sale deed executed by Munni Devi in favour of the appellant. This aspect has not been considered by the two Courts, which has resulted in grave injustice and also gives rise to a substantial question of law.
The other submission made by the learned counsel for the appellant is that the land in question was given on a residential lease to Smt. Munni Devi in the year 1971, consequently, she had acquired full rights of bhoomidhari and thereafter, by means of the sale deed dated 14.03.2007, she had executed the sale deed transferring the said land in favour of the appellant, who was the defendant in the suit and in this fashion, where the respondent Rajendra Prasad had no right, title or interest in respect of the property in question, he also did not have any right to institute the proceedings and this aspect of the matter has bee lost sight of by the two Courts resulting in grave injustice.
The Court has heard the learned counsel for the appellant and also perused the material placed on record.
Having taken note of of the aforesaid submission, this Court finds that Rajendra Prasad had instituted a suit seeking cancellation of a sale deed dated 14.03.2007 executed by Smt. Munni Devi. In order to ascertain the right of Munni Devi to execute the sale deed, the attention of the Court was drawn to the lease, which was executed in favour of Munni Devi and a copy of which is on record as Annexure No.2. From the perusal of the aforesaid, it indicates that the lease, which was executed in favour of Munni Devi was an 'asami patta' dated 13.08.1971. The Court has also taken note of the copy of the plaint, which has been brought on record as Annexure No.3. From the perusal of the aforesaid, it indicates that Rajendra Prasad as plaintiff had instituted a suit seeking cancellation of the sale deed executed in favour of the appellant on the ground that initially Munni Devi had instituted a suit bearing No.217 of 1997 and had procured an ex-parte judgment and decree dated 15.04.2002 against the plaintiff Rajendra Prasad. Once Rajendra Prasaad became aware of the said decree, he had moved an application for recall, which came to be allowed and subsequently, by means of judgment and decree dated 26.02.2018, the suit of Munni Devi was dismissed. It is on the basis of the said judgment and decree as well as the lease dated 1971 that the sale deed was executed in favour of the appellant on 14.03.2007. It is in this context that the two Courts have considered and found that Munni Devi did not have any right in respect of the property in question.
At the outset, the asami patta does not confer any transferable rights to the lessee and thus, on the basis of the lease, Munni Devi could not have executed or transferred the property in favour of the appellant on 14.03.2007. Even otherwise, the alleged ex-parte decree had also been set aside at the behest of the Rajendra Prasad and once the judgment which was in favour of Munni Devi while she had executed the sale deed dated 14.03.2007, which had cast a cloud over the title and interest of Rajendra Prasad and it is in the aforesaid background that the suit was filed by Rajendra Prasad.
The two Courts have clearly noticed that there was no evidence which was led by the appellant by virtue of which the right title of Munni Devi and in turn of the appellant could have matured in a right to defend as the basis of the deed i.e., title of Munni Devi and her lease both lost their significance. It was also recorded that the sale deed of Munni Devi did not mention the plot number in respect of which the sale deed was executed. The title of Munni Devi could not be established.
For the aforesaid reasons, this Court finds that there is no error, which have been committed by the two Courts inasmuch as Rajendra prassad, who was having right in the property and his rights being affected had ample locus to assail the sale deed which was executed by Munni Devi in favour of the appellant. As noticed above, the title of Munni Devi itself was doubtful as she could neither claim on the basis of the lease deed, which was an asami patta, nor she could disclose the source of her title and therefore, the appellant being a vendee cannot get a better title then that of her vendor.
In view of the aforesaid, the concurrent findings returned by the two Courts do not suffer from any error, nor the appellant could point out any perversity in the finding, which may persuade this Court to interfere in exercise of powers under Section 100 C.P.C.
In view of the aforesaid, the appeal is devoid of merits. No substantial question of law arises. Accordingly, this second appeal is dismissed at the admission stage. There shall be no order as to costs.
Order Date :- 23.5.2023
Gurpreet Singh
