Allahabad High Court
Ratendra Kumar Sinha vs Ajeet Kumar on 21 May, 2024
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:38265
Court No. - 5
Case :- SECOND APPEAL No. - 107 of 2024
Appellant :- Ratendra Kumar Sinha
Respondent :- Ajeet Kumar
Counsel for Appellant :- Smt. Usha Tiwari,Pramod Kumar Tiwari
Hon'ble Rajnish Kumar,J.
1. Heard Smt.Usha Tiwari, learned counsel for the appellant.
2. This Second Appeal has been filed for setting aside the judgment and decree dated 09.02.2024 passed by the Additional District and Sessions Judge, FTC-II, Faizabad in Civil Appeal No.06 of 2021; Ratendra Kumar Sinha Versus Ajeet Kumar arising out of the judgement and decree dated 11.12.2020 passed by the Civil Judge (Sr.Div.), FTC, Faizabad in Regular Suit No.431 of 2003; Narvdeshwar Nath Versus Ajeet Kumar, by means of which the Suit filed by the predecessor-in-interest of the appellant for cancellation of sale deed and the appeal filed by the appellant have been dismissed.
3. Learned counsel for the appellant submits that the predecessor-in-interest of the appellant Narvedeshwar Nath was an old and infirm person and retired from the post of Driver from UPSRTC on account of weak eye sight. A sale deed was got executed on 19.06.2003 by the respondent by deceiving him and giving medicines, on account of which he was under intoxication and on the ground that he would get drought relief from the government. Immediately after coming to know about it, the predecessor-in-interest of the appellant had filed a Suit for cancellation of sale deed. It has further been submitted that the respondent is of the cast of the appellant and a Doctor without any degree. Upon consultation with him in regard to some ailment, he had given some medicines of intoxication and with mis-representation and misleading to the predecessor-in-interest of the appellant, on account of which, he could not understand, the sale deed has been got executed. She further submits that the sale deed was got executed of 1/3rd portion without any partition, therefore it could not have been made and not sustainable. She also submits that no sale consideration was paid to the predecessor-in-interest of the appellant and the money which was said to have been paid to the predecessor-in-interest of the appellant after withdrawing from the Bank was deposited by the respondent in the post office. The appellant had filed an application to summon the relevant records from the bank, which was disposed of on the ground that if required the record shall be summoned at the relevant time but the suit has been dismissed without summoning the records. Thus the submission is that the judgment and decrees passed by the courts below are not sustainable and are liable to be set aside.
4. Having considered the submissions of learned counsel for the appellant, I have perused the documents placed on records of this appeal.
5. The sale deed was executed by the predecessor-in-interest of the appellant in favour of the respondent on 19.06.2003. The predecessor-in-interest of the appellant had filed a Suit for cancellation of the sale deed on the ground that the sale deed has been got executed by the respondent by misrepresentation and taking the benefit of the ailment of the predecessor-in-interest of the appellant as he was weak and infirm on account of his old age and he was also not able to see properly as he was completely blind from one eye and also was not able to see properly from another eye, on account of which he was also discharged from the government service after giving him some medicines on 10.06.2003, on account of which he was under intoxication and telling on 18.06.2003 that government is giving some drought relief, for which a deed is to be executed.
6. The Trial court as well as the appellate court have considered the grounds raised by the predecessor-in-interest of the appellant for cancellation of the sale deed, which were denied by the respondent by filing written statement. The Trial court, after considering the pleadings, evidence and material on record, found that the predecessor-in-interest of the appellant has failed to prove that he is not able to see properly and any fraud has been committed by the respondent because he admitted in his evidence that he receives pension from the Bank after putting his signatures, which are made in English. He also recognized his signatures during evidence before the trial court. The predecessor-in-interest of the appellant has also not produced any medical certificate in regard to his ailments and proved it. He also admitted in his cross examination that his agricultural field is situated in an area where there is a canal, therefore there is no question of drought relief in the area, whereas he had taken a plea that the respondent had got the sale deed executed on the ground that some drought relief is being given by the Government and for receiving the same, he had to execute some documents before the Sub Registrar. The Court's below also found that the predecessor-in-interest of the appellant was in Government Service and he could not prove any ailment to show that he was not able to understand the things on account of which the sale deed was executed.
7. So far as the plea of non payment of sale consideration is concerned, the Trial Court on the basis of judgement of the Hon'ble Supreme Court in the case of Dahiven Versus Kanyanji Bhanusali (Gajra) Through LRs Civil Appeal No.9519 of 2019 has held that on account of non payment of sale consideration, it cannot be said that the sale deed is void. It is settled law that non payment of sale consideration or part thereof cannot be a ground for cancellation of sale deed. Even otherwise learned court's below found payment of sale consideration and the appellant failed to contradict it with any cogent evidence.
8. So far as the plea of the appellant that without partition, 1/3rd share could not have been sold by the predecessor-in-interest of the appellant is concerned, the trial court has recorded a finding that the predecessor-in-interest of the appellant had executed the sale deed of his complete share, therefore it is not barred by Section 168-A of the U.P.Revenue Code. Even otherwise the appellant cannot be said to be prejudiced by it and can get the sale deed cancelled on this ground because it may be a ground for challenge of sale deed by a person who is aggrieved by the sale deed without partition.
9. In view of above, this court is the view that there is no illegality or infirmity in the findings recorded by the courts below and judgment and decree passed by the trial court as well as the appellate court have been passed after considering the pleadings of the parties, evidence and material on record and they do not suffer from any illegality or error. No substantial question of law arises in this appeal.
10. The Second Appeal is, accordingly, dismissed.
.
.......................................(Rajnish Kumar,J.)
Order Date :- 21.5.2024
Banswar
