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3 All] Shitla Prasad Vs. Banwari & Ors 1415 APPELLATE JURISDICTION been raised by defendants. All these facts CIVIL SIDE show that the conduct of defendant in the DATED: ALLAHABAD 30.10.2013 entire case was neither straight nor honest. It is true that in respect of market value of BEFORE the land, over which finding has been THE HON'BLE SUDHIR AGARWAL, J. recorded by LAC, it may be said that there was no evidence, but the land in question at Second Appeal No. 111 of 2010 the time of execution of sale deed was of much higher value, as is evident from the fact that it was transferred for a Shitla Prasad ...Appellant consideration of Rs. 24,000/- but for the Versus purpose of stamp duty, much higher value Banwari & Ors. ...Opp. Parties has been mentioned and that too when it was taken as agricultural land. It is in these Counsel for the Petitioner: facts, the finding recorded by LAC that Sri T.N. Tiwari, Sri M.K. Gupta, Sri Manish value of the land would have been much Goyal more than Rs. 24,000/-, it cannot be said that a prudent vender could have sold 24 Counsel for the Respondents: dismal of land for just Rs. 24,000/-, when Sri O.P. Shukla, Sri Rakesh Pande, almost 20 years back he has purchased the Sri Prashant Pande, Sri Akhilesh Kumar, land for a consideration of Rs. 5,000/-. In Sri Rajendra Singh, Sri Anil Sharma entirety and the backdrop of all these facts, it cannot be said to be without any evidence Sri Chandrasen Pal or perverse. C.P.C.-Section-100-Second Appeal-Suit for Case Law discussed: cancellation of sale deed and injunction- AIR 2006 SC 3672; AIR 2009 SC (Supp) 1218; dismissed by Trail Court-decreed by lower AIR 1951 SC 280; AIR 1941 PC 93; AIR 1965 appellate court-with specific finding of SC 1738; (2006) 7 SCC 756; AIR 1977 SC 615; fraud-as the serial number on stamp bears AIR 1982 SC 84; JT 1996(7) SC 135; AIR 2005 different with different dates-defendant SC 3110; JT 2011(9) SC 505; (1996) 5 SCC failed to explain about this diversity instead 550; (2005) 11 SCC 314; 2006(5) SCC 638; of 2 dismal in 24000/- 24 dismal written AIR 2009 SC (Supp) 1218; AIR 1951 SC 280. with collusion of registry-old construction and shop proved to constructed by plantiff- (Delivered by Hon'ble Sudhir Agarwal, J.) land having much and more potential value can not be for such nominal amount-over writing in deed bears no initial finding of 1. This is defendant's appeal under fact recorded by LAC can not be without Section 100 C.P.C. This Court formulated evidence-appeal dismissed. following substantial questions of law after hearing under Order 41 Rule 11 C.P.C.: Held: Para-39 I may look this matter from another "i. Whether the lower Appellate Court is angle and consider certain other facts. The defendants knowing it well that the justified in reversing the findings of Trial land in question was not being used for Court that plaintiff failed to prove fraud agricultural purposes and already warranting cancellation of sale deed and construction was raised thereon, yet reasoning given by lower Appellate court are claims that it is an agricultural land. He founded on legally admissible evidence? also took a stand that construction was ii. Whether the plaint disclose raised by him though it has come on record and proved by evidence that the requisite facts needed to be pleaded for construction was old and could not have making a case of fraud?" 1416 INDIAN LAW REPORTS ALLAHABAD SERIES 2. Sri Manish Goyal, Advocate, has appellant had a shop on eastern corner, made his indepth threadbare arguments north facing, to plot no. 705, appurtenant covering the entire aspects of the matter to road. He, however, was facing problem relevant for adjudication of the aforesaid for residential accommodation. He questions of law with great ability, and, requested for two dismal of land from Sri Anil Sharma, learned counsel plaintiff Banwari for consideration of Rs. appearing for respondents, has met the 24,000/- which was acceded to by plaintiff's case by advancing his plaintiff and possession was given to him. arguments with a similar ability and that The defendant-appellant constructed a is how both the sides have placed enough Kothari and started enjoyment of land, material as also a number of precedential given in his possession, with the promise authorities to make it convenient for this that sale-deed shall be executed in August' Court to arrive at a just conclusion. 1995, by which time, he shall arrange requisite funds. On 23.8.1995, both the 3. Now before proceeding further, I parties went to registry office, executed find it appropriate to have a brief factual sale deed for a consideration of Rs. matrix of the entire litigation, which 24,000/-, in respect of land measuring 2 would be of much help for correct dismal only. The actual handing over of appreciation of the legal issues. consideration amount did not take place since defendant-appellant promised to pay Plaint case: aforesaid amount at the residence, and, plaintiff, believing on such promise, 4. Banwari, son of Sukhdev, now executed sale deed. deceased and substituted by his legal heirs, i.e., plaintiffs (respondents in this 5. Since then, neither any amount appeal), held a land comprising plot no. was paid by defendant-appellant nor he 705 area 24 dismal, situate on the main vacated disputed land. Instead, he road leading from Varanasi to Baluwa, proceeded to extend possession over the falling in Gaura Bazar. He got ownership entire land measuring 24 dismal. rights pursuant to a sale-deed dated Consequently, Original Suit No. 360 of 23.9.1974, executed by earlier owner Smt. 1996 was instituted by Banwari, vide Kumari Devi, wife of Lakhnu Sav. The plaint dated 9.4.1996, wherein he levelled old Bandobast Arazi number of disputed allegation of fraud in the registered sale land was 299/2 area, 25 dismal. The land deed. He said that page mentioning area had its commercial value. The plaintiff, of land under transaction, was replaced by Banwari, got ten permanent shops another page, wherein area was constructed on the road side, over mentioned as 24 dismal instead of 2 disputed land. The shops were let out to dismal. This fraud is sought to be proved various persons on rent. There was vacant on the basis of application form and land on the back side of shops which was affidavit submitted in registry department, surrounded by a boundary wall made of before execution of aforesaid sale-deed in bricks and on the western side of the wall, which area mentioned was 2 dismal. an iron gate was installed. The land on the Plaintiff claims himself an illiterate, aged, back side of shops was not used for any old and sick man and hence had suffered agricultural purpose. The defendant- fraud committed by defendant. 3 All] Shitla Prasad Vs. Banwari & Ors 1417 6. The suit was filed seeking a entitled to get any interference of the declaration of sale deed dated 23.8.1995 defendant restrained. registered on 6.10.1995 as illegal and non est, and for cancellation thereof. An 5. Whether the claim is barred by injunction was also sought against Section 34 of Specific Relief Act. defendant claiming any right on the basis of aforesaid sale deed. 6. Whether the Plaintiff has a right to institute the claim. 7. During pendency of aforesaid suit, plaintiff Banwari died on 16.12.1998 9. Whether any construction on the and his legal heirs, thus, were substituted. disputed land has been carried out by the defendants during pendency of the case. If 8. The suit was contested by yes, its effect. defendant-appellant filing a written statement in which all allegations were denied. He 10. The Issues no. 3, 4 and 10 pleaded that sale deed was executed for 24 relating to jurisdiction, Court fee etc. were dismal area and there is no forgery etc. in the decided as preliminary issues in favour of sale deed, as averred by plaintiff. plaintiff, vide orders dated 19.7.1997 and 16.7.2008, which subsequently formed 9. The then 4th Addl. Civil Judge part of judgment and decree dated (Senior Division) Varanasi, i.e., Trial 19.8.2009. Court (hereinafter referred to as "TC"), formulated 10 issues, and relevant issues 11. The real substantial issues no. 1 no. 1, 2, 5, 6, and 9 as under: and 2, were returned in negative, i.e., against plaintiff. Consequently, vide 1- D;k oknh okn i= ds dFkukuqlkj fookfnr judgment and decree dated 19.8.2009, the nLrkost cSukek dks fujLr djok ikus dk vf/kdkjh TC dismissed the suit. Aggrieved thereto, gS\ plaintiff preferred Civil Appeal No. 88 of 2- D;k oknh fookfnr Hkwfe dk ekfyd o 2009, which has been decided vide dkfct gksus ds dkj.k izfroknh }kjk fdlh gLr{ksi judgment and decree dated 11.12.2009, by dks jksdok ikus dk vf/kdkjh gS\ 5- D;k nkok /kkjk 34 fof'k"V vuqrks"k Sri Umesh Chandra Sharma, Additional vf/kfu;e ls ckf/kr gS\ District Judge, Court No. 9, Varanasi, i.e., 6- D;k oknh dks nkok izLrqr djus dk vf/kdkj Lower Appellate Court (hereinafter gS\ referred to as "LAC"). 9- D;k nkSjku eqdnek izfroknhx.k }kjk fookfnr Hkwfe ij dksbZ fuekZ.k djk;k x;k gS ;fn gka 12.

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