# Late Sohan Lal and others v. Sabhajeet

- **Citation:** (2008) 2 ILRA 556
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-05-15
- **Case number:** Second Appeal No. 452 of 2008
- **Bench:** Mrs) Poonam Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/late-sohan-lal-and-others-v-sabhajeet-41211
- **Pages:** 5

## Headnote

Code of Civil procedure-Section 100-Suit
for
cancellation
of
sale
deedplaintiff/appellant an old illiterate ladydenied the execution of document or
receiving
any
amount
towards
compensation-allegation of fraud and
misrepresentation also made-no specific
issue framed-held-judgment and decree
passed by Court below cannot sustainaccordingly quashed-remanded the case
with direction to frame specific issue and
give fresh finding.
2 All] Late Sohan Lal and others V. Sabhajeet
557
Held: Para 11

A bare perusal of the two judgments, it
transpires that the courts were in a hurry
to dismiss the suit and appeal in a slip
shod manner without framing proper
issues. I refrain from giving any opinion
on merits since the matter is remanded
to the trial court to decide the suit afresh
after framing proper issues. In a suit for
cancellation of the sale deed on the
ground of non-payment of consideration
and fraud, specific issues are liable to be
framed regarding which I have already
indicated in the foregoing part of my
judgment.

## Text

556 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
authorization to institute a suit stands in
the lower side than putting signature and
verifying a pleading by way of an
affidavit. On the other hand, signature and
verification of the pleading of a plaint can
not be made for the sake of signature and
verification alone but for the purpose of
filing of the same before the Court either
by him or by his learned Advocate. As
soon as it is filed, the same will be treated
to be institution of such proceeding by the
person who has signed and verified. It is
automatic. Institution of suit and right to
institute the suit are distinct and different.
The argument of Mr. Shashi Nandan
restricted only to the first part of Order
XXIX Rule 1 of C.P.C. but not to the last
part. If the suit is proceeded and the
evidence is led and if any of the
defendants
want
to
challenge
the
verification of the plaint, he can call the
deponent as witness for the purpose of
examination. But Court can not prevent
anyone from instituting a suit when his
authority is apparently satisfactory. No
body will be prevented from enforcing his
legal right. It is a gross mistake on the
part of the Court below to construe that
the power of attorney should be registered
and then only the suit can be instituted by
a representative of the company or
corporation. Moreover justification of
filing the plaint by the authorised
representative of the corporation or
company will be considered from the
practical point of view. If the Court below
is not happy, it could have called upon the
company
to
file
an
affidavit
of
competency, which is desirable under
such circumstances, but not outright
rejection of the plaint. Therefore, from
any angle the order/s impugned appear to
be perverse in nature. Thus, in totality the
orders impugned in both the appeals can
not be sustained. Hence, the orders dated
24th January, 2008 passed by the Court
below in the above referred suits,
impugned in the instant appeals, are set
aside. Thus, both the appeals are allowed
without imposing any cost.

12. The suits will be heard as
expeditiously as possible. In case of any
displeasure of the parties about particular
Court, it is open for them to approach the
learned
District
Judge,
who
is
administrative head of the District, for
transferring the matters from one Court to
other but we should not judicially
encroach upon such field to maintain the
judicial restraint.

Appeal Allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.05.2008

BEFORE
THE HON'BLE (MRS) POONAM SRIVASTAV, J.

Second Appeal No. 452 of 2008

Late Sohan Lal and others ...Appellant
Versus
Sabhajeet

 ...Respondent

Counsel for the Appellant:
Sri. R.K. Mishra

Counsel for the Respondent:
Sri. V.K. Shukla

Code of Civil procedure-Section 100-Suit
for
cancellation
of
sale
deedplaintiff/appellant an old illiterate ladydenied the execution of document or
receiving
any
amount
towards
compensation-allegation of fraud and
misrepresentation also made-no specific
issue framed-held-judgment and decree
passed by Court below cannot sustainaccordingly quashed-remanded the case
with direction to frame specific issue and
give fresh finding.
2 All] Late Sohan Lal and others V. Sabhajeet
557
Held: Para 11

A bare perusal of the two judgments, it
transpires that the courts were in a hurry
to dismiss the suit and appeal in a slip
shod manner without framing proper
issues. I refrain from giving any opinion
on merits since the matter is remanded
to the trial court to decide the suit afresh
after framing proper issues. In a suit for
cancellation of the sale deed on the
ground of non-payment of consideration
and fraud, specific issues are liable to be
framed regarding which I have already
indicated in the foregoing part of my
judgment.

(Delivered by Hon'ble Mrs. Poonam
Srivastav, J.)

1. Heard Sri R.K. Mishra, learned
counsel for the appellants and Sri V.K.
Shukla,
learned
counsel
for
the
caveator/respondent.

2. This is a second appeal against
the
judgment
and
decree
dated
17.3.2008/26.3.2008
passed
by
the
Additional District Judge, court no.1,
Azamgarh, in civil appeal no. 278 of
1997, Ram Lal Vs. Sabhajeet, confirming
the
judgment
and
decree
dated
25.7.1997/2.8.1997
passed
by
the
Additional Civil Judge (Junior Division),
court no.12, Azamgarh in original suit no.
1023 of 1992.

3. The suit was instituted claiming
relief for cancellation of the registered
sale deed dated 1.7.1992 in favour of the
defendant/respondent on the ground that it
was
got
executed
by
the
defendant/respondent by practising fraud,
mis-representation and misleading the
appellant and without payment of any sale
consideration. The plaintiff/appellant is
owner in possession of the disputed plot.
The plaintiff is aged about 75 years old
and infirm. He is an uneducated person
and that he had sufficient means to live
and there was no necessity for him to sell
the land in question. Copy of the plaint
has been annexed as annexure no. 2 to the
affidavit filed in support of the stay
application. On perusal of the plaint, it
transpires
that
there
was
specific
pleadings that he had executed a power of
attorney in favour of his son Chhotey Lal
for looking after his property. The
relationship between the son and the
plaintiff became our and uncordial, also
certain conflict arose between the father
and son, which led to the plaintiff's
decision to cancel the aforesaid power of
attorney. The plaintiff apprehended that
his son will take away his property.

4. The defendant availed this
opportunity and on the pretext of getting
the power of attorney cancelled took him
to the office of the Registrar. The plaintiff
was ill and suffering from high fever, he
did not understand and the defendant
taking
advantage
of
his
vulnerable
situation, fraudulently got his thumb
impression on the sale deed in respect of
the land. The plaintiff never intended to
sell his property in dispute whatsoever. The
defendant belongs to the same caste and
village and always pretended that he
wanted to help the plaintiff as he was ill
and infirm person. Later when the plaintiff
came
to
know
through
certain
acquaintances of the village that the
defendant instead of getting the power of
attorney cancelled, got the sale deed
executed on which the plaintiff had
endorsed his thumb impression believing it
to be a deed of cancellation of power of
attorney, he immediately instituted the suit.
It was also pleaded that the plaintiff never
handed over possession of the disputed
558 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
plot to the defendant and possession is still
continuing with the plaintiff/appellants.

5. Recital of the plaint has been
placed before me by the counsel for the
appellants in support of his argument that
the case set up before the trial court was
clear and specific that the sale deed was
got executed by the defendant without any
consideration and by practicing fraud
while he was very ill in the month of
June, 1992. The plaintiff was misled and
he believed that the defendant is only
trying to extend a helping hand by
accompanying him to the Tehsil for
getting the power attorney in favour of
plaintiff's son cancelled.

6. The trial court framed only two
issues. First one whether the sale deed is
liable to be cancelled for the reasons
detailed in the plaint? Second issue is in
respect of entitlement of the relief claimed
by the plaintiff/appellants. The trial court
dismissed the suit on the ground that there
was no medical certificate in support of
the contention of the plaintiff that he was
ill at the relevant time and also that plaint
allegation by the plaintiff is not worthy of
reliance, since he admitted that the thumb
impression on the disputed sale deed was
that of the plaintiff himself. The plaintiff
preferred a regular appeal before the
District Judge, who confirmed findings of
the trial court.

Learned counsel for the appellants
has
pressed
following
substantial
questions of law, which are enumerated
below:

"1. Whether the courts below have
committed illegality in recording finding
without framing proper issues on the
pleading of the parties and as such the
findings of the court below are illegal and
without jurisdiction.

2. Whether the courts below have
committed illegality in not recording the
finding of delivery of possession as well
as payment of consideration at the time of
execution of alleged sale deed and alleged
to have been executed in favour of the
defendant, which is no sale deed under
the law?

3. Whether in absence of recited in
the sale deed with regard to transfer of
possession by the vendor to the vendee
and payment of sale consideration by the
vendee to the vendor will amount to valid
transfer under the law?"

7. Learned counsel for the appellants
submits that the specific case of the
plaintiff set up before the trial Judge was
that he being an old infirm ailing person,
he did not realize that he is being duped
by the defendant to endorse his thumb
impression on the sale deed, which the
plaintiff believed it to be a deed of
cancellation of power of attorney in
favour
of
his
son.
The
plaintiff
specifically pleaded that he had no need
to sell his land and also that he was
misled by the defendant while he was in a
condition when he could not understand
the fraud practiced by the defendant
taking advantage of his ill health, lack of
education and understanding.

8.

Learned
counsel
for
the
defendant/respondent
has
strenuously
disputed arguments advanced on behalf of
the appellants and has argued that
findings of the fact arrived at concurrently
by the two courts cannot be interfered in
exercise of jurisdiction under Section 100
C.P.C.
2 All] Late Sohan Lal and others V. Sabhajeet
559

9. However, learned counsels for the
respective parties have agreed that the
instant second appeal may be decided at
this stage itself without summoning
record of the lower court. Accordingly, I
proceed to decide this appeal on the three
substantial questions of law enumerated
hereinabove.

10. After going through the two
judgments,
the
plaint
and
written
statement, it is apparent that the courts
below have failed to frame proper issues
such as specific pleadings in the plaint
regarding infirmity of the plaintiff at the
time of execution of the sale deed.
Specific assertion in the pleading is that
he was not able to understand the
implication at the time when he was made
to endorse his thumb impression on the
sale
deed
by
the
defendant,
he
misrepresented it to be a deed of
cancellation of power of attorney. It was
incumbent on the courts below to have
framed specific issue regarding payment
of consideration. The question that despite
the sale deed being executed in the year
1992, the possession continues to be that
of the plaintiff as well as whether the
plaintiff/appellants were entitled to the
benefit available to a Pardanasheen lady
while deciding the suit on a clear pleading
which would entitle him to all the benefits
given to a Pardanasheen lady, thereby a
heavy burden lay on shoulders of the
defendant.

11. A bare perusal of the two
judgments, it transpires that the courts
were in a hurry to dismiss the suit and
appeal in a slip shod manner without
framing proper issues. I refrain from
giving any opinion on merits since the
matter is remanded to the trial court to
decide the suit afresh after framing proper
issues. In a suit for cancellation of the sale
deed on the ground of non-payment of
consideration and fraud, specific issues
are liable to be framed regarding which I
have already indicated in the foregoing
part of my judgment. Also age, infirmity
and other aspects are liable to be taken
into consideration where there is an
unambiguous pleading that he was tricked
by the defendant in endorsing his thumb
impression on the sale deed in question.

12. I direct that the trial court shall
permit the parties to lead evidence, and
ensure that the suit is decided within a
period of six months from the date a
certified copy of this order is produced
before him. The contesting parties shall
co-operate with the trial court without
causing any delay as the matter is already
pending since the year 1992. I am of the
considered view that the two judgments
suffer from substantial error inasmuch as
the courts below failed to frame proper
issues on the basis of pleadings of the
parties and this resulted in miscarriage of
justice. Three substantial questions of law
raised by the counsel for the appellants
are obvious on the perusal of the two
judgments.

13. The two judgments under
challenge are hereby quashed. The second
appeal is allowed. The matter is remanded
to the trial Judge for deciding afresh. Cost
on parties.

Appeal Allowed.
---------
560 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.05.2008

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE R.D. KHARE, J.

Special Appeal 531 of 2002

Raj Kumar Yadav

...Applicant
Versus
The State of U.P. & others ...Respondents

Counsel for the Applicant:
Sri. H.S.N. Tripathi
Sri. S.K. Pandey
Counsel for the Respondents:
S.C.

U.P. Government Servant (Termination
of Services) Rules 1975-terminationwith stipulation no longer requirement of
services-appointment
purely
on
temporary
basis
under
Rule
1975without
putting
stigma-held-propertemporary employee has no right to hold
the
post-another
question
regarding
automatic confirmation after completion
of
probation
period-in
absence
of
appointment letter-period of probation
can not be specified-even if period
specified-No
automatic
confirmationheld-termination order perfectly valid.

Held: Para 22 & 30

In the instant case, the order impugned
dated 14.09.1998 by which the services
of the petitioner-appellant had been
terminated, reveal that the petitioner
appellant
had
been
appointed
on
temporary basis under the provisions of
the
U.P.
Government
Servants
(Termination of services) Rules, 1975.
This case is squarely covered by the
judgement of the Hon'ble Supreme Court
in Kaushal Kishore Shukla (supra).

In view of the above, the appeal lacks
merit and is accordingly dismissed.
Case Law discussed:
AIR 1992 SC 496; (1994) 5 SCC 177; (1994) 5
SCC 180; (1995) 1 SCC 638; AIR 1994 SC
1558; 1971 (2) All E.R. 1278; AIR 1992 SC
1593; AIR 1997 SC 2126; (1997) 2 SCC 534;
JT 2000 (10) SC 199; AIR 2001 SC 102; AIR
1991 SC 1145; AIR 1992 SC 677; (1998) 5
SCC 450; (2001) 10 SCC 83; AIR 2003 SC 923;
AIR 2003 SC 1175;. (2003) 3 SCC 485; (1994)
2 SCC 630; (1987) Supp. SCC 497; (1997) 3
SCC 194; (1996) 8 SCC 454; AIR 1992 SC
2070; AIR 1995 SC 768; 1987 Supp SCC 497;
1998 Supp SCC 428; AIR 1992 SC 2130; A.I.R.
1968 SC 1210; AIR 1985 SC 603; AIR 1986 SC
1844; AIR 1988 SC 286; 1996 FLR 258; 1994
Lab.I.C. 859; 1995 Suppl (3) SCC 364; AIR
1996 SC 750; AIR 1996 SC 2093; (1997) 7
SCC 443; AIR 1962 SC 1711; AIR 1966 SC
175; AIR 1966 SC 1842., (2008) SCC 653.

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This Special Appeal has been
filed against the impugned judgment and
order dated 22.04.2002 passed by the
learned Single Judge by which he has
rejected the claim of the petitioner on the
ground that he was merely a temporary
employee and has no right to hold the
post. The learned Single Judge further
held that even if a person is appointed on
probation and unless an order in writing is
passed for confirmation and he is
continuing beyond the period of probation
provided under the rules, he would not be
deemed
to
have
been
confirmed
automatically,
merely
because
the
probation period is over.

2. The facts and circumstances
giving rise to this case are that the
petitioner-appellant was appointed as a
Constable
in
Provincial
Arms
Constabulary
(hereinafter
called
the
'P.A.C.') on temporary basis. No order of
confirmation had ever been passed. The
services of the petitioner-appellant were
terminated after working for about seven