# Duli Ram Maurya Defendant/ v. Nand Ram Plaintiff/

- **Citation:** (2019) 3 ILRA 699
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-23
- **Case number:** Second Appeal No. 235 of 2004
- **Bench:** Harsh Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/duli-ram-maurya-defendant-v-nand-ram-plaintiff-44940
- **Pages:** 4

## Headnote

A. Property Law- Agreement for sale -
Registered agreement for sale can only
700 INDIAN LAW REPORTS ALLAHABAD SERIES
be cancelled by executing registered
deed of cancellation.

Held: - Learned lower Appellate Court has
rightly held that when a registered agreement
for sale has been executed between the
parties, the same may be considered to have
ceased to exist by execution of mere receipt
and can only be cancelled by executing
registered deed of cancellation. As far as
report of expert is concerned under the law
the reports submitted by two experts are only
an opinion having no binding force. (Para 10)

Second Appeal dismissed (E-5)

## Text

3 All. Duli Ram Maurya Vs. Nand Ram
699
finding of fact unless pointed out to be
perverse cannot be disturbed by this
Court.

29. As far as the other submissions
of the learned counsel for the revisionist
is concerned, suffice to submit that the
Trial Court having not decided all the
issues is not going to materially affect the
judgment, inasmuch as, in view of the
Order 20 Rule 4 C.P.C., the judgment of
the Judge, Small Causes need only to
contain the points of determination and its
decision thereon. On perusal of the
record, this Court is satisfied that the
entire defence as raised by the revisionist
has been encapsulated in the points of
determination which have been framed by
the Trial Court and it has given its finding
on all the points of determination as
framed and, therefore, merely nondeciding the issues as were framed earlier
on 19.03.2005 which in terms of Order 40
C.P.C. was not applicable to Provincial
Small Cause Court's proceedings and
moreso in absence of any prejudice
caused, the aforesaid submissions lacks
merit and is rejected.

30. The last submission which was
feebly argued by Sri Tripathi regarding
the title not being with the opposite party
no. 1 also fails, inasmuch as, the opposite
party no. 1 had brought on record the
copy of the judgment of the title suit
decided by the Court of Civil Jude, Senior
Division,
Mohanlalganj,
Lucknow
wherein the counter claim of the opposite
party no.1 was decreed while the suit of
Sri
Smt.
Veena
Srivastawa
was
dismissed. The aforesaid judgment has
been brought on record along with the
document list dated 26.09.2015 and Sri
Tripathi could not dispute the same. In
light thereof, the aforesaid plea regarding
the title of the opposite party no. 1 is not
open to be urged by the revisionist and
consequently it fails.

31. In view of the detailed
discussions hereinabove, this Court is of
the definite opinion that the judgment
dated
07.11.2015
passed
by
the
Additional District Judge, Court No. 9,
Lucknow (acting as Judge, Small Causes)
in SCC Suit No. 18 of 1999 does not
require any interference. The same is
affirmed the revision lacks merit and is
dismissed. Costs are made easy.

32. The interim order, if any, stands
discharged.

33. The registry shall remit the
record of the SCC Suit No. 18 of 1999 to
the Court concerned within a period of
three weeks from today.
----------
(2019)11ILR A699

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.09.2019

BEFORE
THE HON'BLE HARSH KUMAR, J.

Second Appeal No. 235 of 2004

Duli Ram Maurya ...Defendant/Appellant
Versus
Nand Ram ...Plaintiff/Respondent

Counsel for the Appellant:
Sri Nand Ram

Counsel for the Respondent:
Sri Prem Chandra, Sri A.K. Srivastava, Sri
V.P. Singh

A. Property Law- Agreement for sale -
Registered agreement for sale can only
700 INDIAN LAW REPORTS ALLAHABAD SERIES
be cancelled by executing registered
deed of cancellation.

Held: - Learned lower Appellate Court has
rightly held that when a registered agreement
for sale has been executed between the
parties, the same may be considered to have
ceased to exist by execution of mere receipt
and can only be cancelled by executing
registered deed of cancellation. As far as
report of expert is concerned under the law
the reports submitted by two experts are only
an opinion having no binding force. (Para 10)

Second Appeal dismissed (E-5)

(Delivered by Hon'ble Harsh Kumar, J)

1. Heard Sri A.K. Srivastava,
learned counsel for appellant and perused
the record.

2. The instant appeal has been filed
against the impugned judgment and
decree dated 22.11.2003 passed by
Additional District Judge, Court No.2,
District Budaun in Civil Appeal No.101
of 1998 setting aside the judgment and
decree dated 18.8.1998 of Ist Additional
Civil Judge (Junior Division), Buduan in
O.S. No.109 of 1993.

3. The brief facts relating to the case
are that plaintiff-respondent filed Civil
Suit No.109 of 1993 in the Court of Civil
Judge (Junior Division), Buduan for
specific performance of contract with the
averments that defendant being owner of
property in dispute agreed to sell the same
in favour of plaintiff for a sum of
Rs.25,000/- and executed a registered
agreement for sale in his favour after
accepting Rs.13,000/- as earnest money
and sale deed was agreed to be executed
within 14 months on payment of balance
sale consideration of Rs.12,000/-; that the
plaintiff was always ready and willing to
perform his part of contract and also
served
defendant
with
notice
by
registered post through his counsel and
appeared in the office of Sub Registrar,
Budaun on dates fixed i.e. 25.8.1992 and
2.9.1992 and got his presence registered,
but defendant did not turn up, hence suit
is being filed.

4. The defendant filed written
statement denying plaint allegations with
the averments that no agreement for sale
was executed, rather defendant was in
need of Rs.13,000/-, which was paid by
plaintiff to the defendant with the
condition that he will put his property as
security, which condition was accepted by
defendant and consequently impugned
agreement for sale was got executed from
defendant in favour of plaintiff and it was
agreed that when defendant will re-pay
the amount, the agreement will cease to
exist; that Rs.13,000/- was re-paid by
defendant to plaintiff, of which receipt
was executed by plaintiff on 16.11.1992
stating that he does not want to get sale
deed executed and since the agreement
for sale ceased to exist, no cause of action
arises to the plaintiff.

5. With regard to signatures of
plaintiff over receipt of re-payment 32-A
dated 16.11.1992, reports of finger print
and handwriting experts were produced
by plaintiff as well as defendant. Sri
Vishan Kumar Sharma, the hand writing
expert in his report produced by plaintiff
stated that the disputed signatures do not
tally with the admitted signatures of
plaintiff while the other report by Sri
Anoop Sinha produced by defendant
stated that both signatures are identical.

6. The Trial Court relying on the
defence case and considering that the
3 All. Duli Ram Maurya Vs. Nand Ram
701
defendant has been a candidate for
M.L.A. and M.P. elections and is
presently Chairman of Municipal Board,
Ujhani held that preparing a forged
receipt, may not be imagined from him
and
moreover
since
plaintiff
has
purchased some other property on same
date i.e. 16.11.1992 when the receipt 32A was executed, so also there is every
possibility that he would have received
back
money
from
defendant
and
possibility of receipt 32-A to be forged
does
not
arise.
The
Trial
Court
accordingly dismissed the suit of plaintiff
holding that defendant has succeeded in
proving that he had taken a sum of
Rs.13,000/- as loan, which has been paid
through receipt 32-A.

7. Feeling aggrieved with the
judgment and decree passed by the Trial
Court plaintiff preferred Civil Appeal
No.101 of 1998 under section 96 of Code
of Civil Procedure before the District
Judge, Buduan, which has been decided
by Additional District Judge, Court No.2,
Buduan by impugned judgment and
decree, allowing the appeal and setting
aside the judgment and decree passed by
Trial Court and decreeing the suit for
specific performance of contract. Feeling
aggrieved, defendant has preferred instant
appeal under section 100 of Code of Civil
Procedure.

8. Learned counsel for appellant
contends that the impugned judgment is
wrong on facts and law and learned
Appellate Court acted wrongly and
illegally in disbelieving the receipt 32-A
of repayment of loan; that the plaintiff
had failed to prove his case and lower
Appellate Court committed mistake in
allowing the appeal and setting aside the
judgment and decree passed by Trial
Court without holding that findings
arrived at by the Trial Court were
perverse; that the impugned judgment and
decree are liable to be set aside; that the
instant appeal involves as many as 06
substantial questions of law, as proposed
at page 9-10 of the memo of appeal.

9. Upon hearing learned counsel for
appellant at length and perusal of record, I
find that as per defence taken by
defendant-appellant,
he
had
taken
Rs.13,000/- for a short period and
executed agreement for sale with the
condition that it will cease to exist on repayment of amount and since the amount
was
repaid,
the
plaintiff-respondent
agreed that he does not want to get sale
deed executed by executing receipt 32-A.
Learned lower Appellate Court at internal
page 9 of it's judgment has reproduced the
matter mentioned in receipt of repayment
32-A dated 16.11.1992 which states that
money of advance sale consideration has
been returned, so he does not want to get
the sale deed executed. Learned lower
Appellate Court at internal page 10 has
also noticed that in above receipt there is
no mention of interest which is alleged to
have been paid by defendant at the rate of
Rs.400/-
per
month
in
his
cross
examination, without there any pleadings
or whisper of rate of interest or any
receipt about payment of interest. It is
also pertinent to mention that according to
agreement for sale, sale deed was agreed
to be executed within 14 months from
3.7.1991 i.e. upto 2.9.1992 and when sale
deed was not executed by defendant for
13 months, the plaintiff served him with
notice fixing 25.8.1992 and 2.9.1992 for
execution of sale deed and remained
present at the office of Sub Registrar,
Buduan on dates fixed, so the question of
executing a receipt of repayment 32-A on
702 INDIAN LAW REPORTS ALLAHABAD SERIES
16.11.1992 showing unwillingness to get
sale deed executed becomes improbable. It is
also noteworthy that when defendantappellant, who is alleged to have contested
elections of M.L.A. and M.P., as mentioned
in internal page 11 of the judgment of Trial
Court and was Chairman of Municipal
Board, Nagar Palika, Ujhani, the story of
obtaining loan of Rs.13,000/- by him from
plaintiff and payment of interest @ Rs.400/-
also becomes highly improbable. The lower
Appellate Court has rightly held that plaintiff
successfully proved the impugned agreement
for sale and that he has always been ready
and willing to perform his part of contract.

10. Learned lower Appellate Court has
rightly held that when a registered agreement
for sale has been executed between the
parties, the same may be considered to have
ceased to exist by execution of mere receipt
and can only be cancelled by executing
registered deed of cancellation. As far as
report of expert is concerned under law the
reports submitted by two experts are only an
opinion having no binding effect under
provisions of Section 45 of Indian Evidence
Act.

11. In view of discussions made
above, I find that the learned counsel for
appellant has failed to show any illegality,
incorrectness
or
perversity
in
the
impugned judgment and decree passed by
learned Appellate Court. The appeal does
not involve any substantial question of
law and is being devoid of merits is liable
to be dismissed.

12. The appeal is accordingly
dismissed with costs throughout. The
impugned judgment and decree are affirmed.

13. Interim order, if any, stands
vacated.

14. Let the lower court record be
sent back to Court below along with a
copy of this judgment for necessary
action, if any.
----------
(2019)11ILR A702

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.05.2017

BEFORE
THE HON'BLE RAKESH SRIVASTAVA, J.

Second Appeal No. 240 of 2017

Satya Narain ...Appellant
Versus
Shiv Shankar & Ors. ...Respondents

Counsel for the Appellant:
Mohammad
Aslam
Khan,
Sri
Ujjwal
Tripathi

Counsel for the Respondent:
-------------------------------

A. Contract Law-Indian Contract Act,
1872
-
Section
16
-
Property
-
Cancellation of Sale deed - Fraud - undue
influence due to fiduciary relationship -
Old age

Held:- Plaintiff was first required to establish
the fiduciary relationship between himself and
the defendants before the onus to establish
that such undue influence had not been
exercised, could arise. - The plaintiff had to
establish that defendants were his relatives
and that the plaintiff was mentally unsound,
illiterate and was unable to bear the undue
influence applied by the defendants. Mere old
age is not a ground to allege that one is
mentally unstable and vulnerable to undue
influence. Only when these allegations are
established would the burden shift upon the
defendants. (Para 9, 13)

The plaintiff could not prove fraud, undue
influence or even existence of a fiduciary
relationship. In the absence of these factors,