# Mahavir Prasad v. Balveer Singh & Anr

- **Citation:** (2024) 8 ILRA 481
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-31
- **Case number:** Second Appeal No. 540 of 2024
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahavir-prasad-v-balveer-singh-anr-52380
- **Pages:** 8

## Headnote

CIVIL LAW -Civil Procedure Code, 1908-
Section - 100 - Order - II, Rule 2, -
Specific Relief Act, - Sections 22, 22(1)(a)
& 22(2) - Registration Act, 1908 - Sections
58, 59 & 60 - Evidence Act, 1872 -
Sections 91 & 92--Second Appeal filed by
Defendant-Appellant - Plaintiff-respondent filed
Original Suit - for specific performance of a
registered agreement for sale - decreed - Civil
Appeal filed against which was dismissed -
present appeal - a plea was taken that the
482 INDIAN LAW REPORTS ALLAHABAD SERIES
agreement was got executed under the grab
of witnessing a sale deed and the land in
dispute being co-owned by various persons
as such no necessity to execute the sale
deed without partitioned - court finds that, -
(i) it is not the case of the defendantappellant that the was an illiterate person
unable to understand the contents of a
document or purpose for which it was being
executed - (ii) execution of agreement for
sale
was
admitted
by
the
defendantappellant - (ii) plea regarding 'document was
fraudulently got executed' is without any
sufficient oral and documentary evidence to
dislodge a registered document could not
suffice dismissal of the suit - (iv) once
execution
of
registered
agreement
is
admitted
to
the
defendant-appellant,
endorsements made by the Sub Registrar
would be presumed to be correct under the
Act, and this court does not find anything on
record
sufficient
to
rebut
the
said
presumption - Held, this court, in exercise of
second appellate jurisdiction, cannot upset
the findings of fact recorded by the trial
court and the first appellant court, unless
shown apparently perverse - hence, even
when two views are possible, out of which
one view has been taken by the courts after
appreciating evidence on record, second
appellate Court would not substitute that
view by its own view -and - Re-appreciation
of
evidence
to
arrive
at
a
different
conclusion is quite restricted in exercise of
jurisdiction u/s 100 of CPC - No substantial
question of law arises for consideration - the
Second appeal is accordingly, dismissed at
the admission stage. (Para - 8, 12, 21, 22,
23)

Second Appeal Dismissed. (E-11)

List of Cases cited:

## Text

8 All. Mahavir Prasad Vs. Balveer Singh & Anr.
481
fact, though, it was she who asserted that
her
mother
had
informed
the
respondent/plaintiff regarding the first
marriage with Rajendra Kumar Gupta.
Having not done so, the learned Family
Court has rightly drawn an adverse
inference of the same. On this count, we
hold that the appellant has failed to prove
that prior to her marriage with the
respondent/plaintiff, her mother or her
family member or she herself informed the
factum of previous marriage with Rajendra
Kumar Gupta to the respondent.

(20) In the facts of the present
case, it is decipherable that the factum of
previous marriage of the appellant with
Rajendra Kumar Gupta was a material fact
concerning the wife (respondent) relating to
her marital status, which was never
disclosed to the husband (plaintiff), as
such, the consent of the respondent for
marriage with the appellant was obtained
by fraud and deceipt thereby attracting
Section 12 (1) (c) of the Act, 1955,
therefore, he is entitled to a declaration as
granted by the Family Court. Point No. 1 is
answered accordingly.

(21) There is another aspect of the
matter. The appellant/defendant has not
been able to prove that there was any
custom in her caste or locality for
dissolution of marriage by a written
agreement. No evidence has been led by
her in this regard. She admits to her first
marriage. There is no decree of divorce by
any Court pertaining to her first marriage.
If this reasoning is taken further, then, it
will lead to the conclusion that the alleged
second marriage apart from being violative
of Section 12 (1) (c) is also a nullity during
subsistence of the first marriage in view of
Section 5 (i) of the Act, 1955, but we do
not proceed on this line as the suit was
under Section 12 of the Act, 1955 and not
Section 11.

(22) The trial Court has considered
all the evidence to which we have made a
reference and has correctly arrived at its
finding with regard to issues no. 1, 2, 3 and
4 and has rightly declared the marriage of
the respondent/plaintiff with appellant/
defendant as null and void. There is no
perversity in the judgment of the trial
Court. The point no.2 for determination
referred earlier is answered accordingly.

(23) The appeal is dismissed. No
order as to costs.
----------
(2024) 8 ILRA 481
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.08.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Second Appeal No. 540 of 2024

Mahavir Prasad ...Appellant
Versus
Balveer Singh & Anr. ...Respondents

Counsel for the Appellant:
Prem Prakash Chaudhary

Counsel for the Respondents:
Abhishek Gupta, Chandra Bhan Gupta

CIVIL LAW -Civil Procedure Code, 1908-
Section - 100 - Order - II, Rule 2, -
Specific Relief Act, - Sections 22, 22(1)(a)
& 22(2) - Registration Act, 1908 - Sections
58, 59 & 60 - Evidence Act, 1872 -
Sections 91 & 92--Second Appeal filed by
Defendant-Appellant - Plaintiff-respondent filed
Original Suit - for specific performance of a
registered agreement for sale - decreed - Civil
Appeal filed against which was dismissed -
present appeal - a plea was taken that the
482 INDIAN LAW REPORTS ALLAHABAD SERIES
agreement was got executed under the grab
of witnessing a sale deed and the land in
dispute being co-owned by various persons
as such no necessity to execute the sale
deed without partitioned - court finds that, -
(i) it is not the case of the defendantappellant that the was an illiterate person
unable to understand the contents of a
document or purpose for which it was being
executed - (ii) execution of agreement for
sale
was
admitted
by
the
defendantappellant - (ii) plea regarding 'document was
fraudulently got executed' is without any
sufficient oral and documentary evidence to
dislodge a registered document could not
suffice dismissal of the suit - (iv) once
execution
of
registered
agreement
is
admitted
to
the
defendant-appellant,
endorsements made by the Sub Registrar
would be presumed to be correct under the
Act, and this court does not find anything on
record
sufficient
to
rebut
the
said
presumption - Held, this court, in exercise of
second appellate jurisdiction, cannot upset
the findings of fact recorded by the trial
court and the first appellant court, unless
shown apparently perverse - hence, even
when two views are possible, out of which
one view has been taken by the courts after
appreciating evidence on record, second
appellate Court would not substitute that
view by its own view -and - Re-appreciation
of
evidence
to
arrive
at
a
different
conclusion is quite restricted in exercise of
jurisdiction u/s 100 of CPC - No substantial
question of law arises for consideration - the
Second appeal is accordingly, dismissed at
the admission stage. (Para - 8, 12, 21, 22,
23)

Second Appeal Dismissed. (E-11)

List of Cases cited:

1. Ameer Trading Corporation Ltd. Vs Shapoorji
Data Processing Ltd. (2004 vol. 1 SCC 702),

2. Krishna Chand & ors.Vs Dr. Kailash Chandra
Gupta & ors.(2010 Vol. 2 ADJ 666),

3. FDC Ltd. Vs Federation of Medical Representatives
Association India (FMRAI) & ors.(AIR 2003 Bombay 371),

4. Kshitish Chandra Purkait Vs Santosh Kumar
Purkait (AIR 1997 SC 2517),

5. Bholaram Vs Amirchand (1981 vol. 2 SCC
414),

6. Kamti Devi (Smt.) & anr. Vs Poshi Ram (2001
Vol. 5 SCC 311),

7. Thiagarajan Vs Sri Venugopalaswamy B. Koil
(2004 Vol. 5 SCC 762),

8. Kondiba Dagadu Kadam Vs Savitribai Sopan
Gujar & ors.(1999 Vo. 3 SCC 722),

9. Commissioner, Hindu Religious & Charitable
Endowments Vs P. Shanmugama (2005 Vol. 9
SCC 232),

10. St. of Kerala Vs Mohd. Kunhi (2005 Vol. 10
SCC 139),

11. Madhavan Nair Vs Bhaskar Pillai (2005 Vol.
10 SCC 553),

12. Gurdev Kaur & ors.Vs Kaki & ors.(2007 Vol.
1 SCC 546),

13. Dalip Singh Vs Bhupinder Kaur (2018 vol. 3
SCC 677).

(Delivered by Hon'ble Kshitij Shailendra, J.)

The Appeal

1. The instant appeal has been filed by
the defendant of Original Suit No. 974 of
2014 challenging the concurrent judgments
and decrees whereby, respectively, the suit
for specific performance of a registered
agreement for sale dated 25.04.2014 filed
by the plaintiffs-respondents, has been
decreed and Civil Appeal filed against the
said decision has been dismissed.

Plaint case

2. The plaintiffs-respondents filed the
aforesaid suit on the basis of registered
8 All. Mahavir Prasad Vs. Balveer Singh & Anr.
483
agreement for sale dated 25.04.2014 said
to have been executed by the defendantappellant agreeing to sell 500 Sq. yards
of his Bhumidhari land bearing Arazi No.
129-A covered by Khata No. 179. It was
stated that despite the agreement, sale
deed was not executed by the defendantappellant
and
when
the
plaintiffrespondents
issued
notice
dated
29.09.2014 asking him to execute sale
deed
and,
thereafter,
presented
themselves on 22.10.2014 before the Sub
Registrar's office with remaining sum
and
miscellaneous
expenses,
the
defendant-appellant did not appear for
executing the sale deed and, hence, the
suit was filed.

Defence

3. The defendant-appellant filed
written statement stating that execution of
agreement for sale was a fraudulent
exercise, inasmuch as, the plaintiffs carried
him to the Registrar's office for witnessing
some sale deed but, under the garb of said
act, an agreement was got executed. It was
further pleaded that the land in dispute
being co-owned by various persons and
having not been partitioned so far, no
necessity to execute the sale deed ever
arose. Payment of part of sale consideration
was also denied.

Defence case dislodged by both the courts

4. The trial court, after framing seven
issues and after discussing oral and
documentary evidence, decreed the suit by
judgment dated 15.12.2022 granting a
decree for specific performance of the
agreement. Civil Appeal No. 3 of 2023
filed against the said decision has also been
dismissed by the judgment and decree
dated 14.03.2024.
Counsel heard

5. I have heard Shri Prem Prakash
Chaudhary,
learned
counsel
for
the
defendant-appellant and Shri Chandra Bhan
Gupta, learned counsel for the plaintiffrespondents on the point of admission.

Submissions on behalf of appellant

6. Learned counsel for the appellant
submits that suit could not be decreed for
various reasons; first, that the statement
contained at page No. 3 of the agreement
for sale as regards cash payment of
Rs.5,00,000/- (rupees five lac) by the
plaintiffs to the defendant was not proved;
secondly, the land forming subject matter
of the agreement having not been a specific
portion of the land co-owned by various cosharers, no sale could be executed and,
therefore, agreement becomes invalid;
thirdly, the witnesses produced by the
plaintiffs'
side
made
inconsistent
statements regarding payment of advance
money; fourthly, bare affidavit filed by
PW-1 would not be admissible in evidence
unless it is acknowledged by him on
appearing in witness box; fifthly, there was
no
evidence
to
prove
payment
of
Rs.5,00,000/- before the Sub Registrar and,
lastly, burden to prove that the agreement
was validly executed would lay upon the
plaintiffs, but the same has wrongly been
shifted upon the defendant-appellant, who
had termed execution of the agreement as a
fraudulent
act.
In
support
of
his
submissions, reliance has been placed upon
the judgement of Supreme Court in the case
of Ameer Trading Corporation Ltd. Vs
Shapoorji Data Processing Ltd, (2004) 1
SCC 702, particularly, paragraph No. 31
thereof and also judgment of this Court in
Kishan Chand and others vs Dr. Kailash
Chandra Gupta and others, 2010 (2) ADJ
484 INDIAN LAW REPORTS ALLAHABAD SERIES
666, particularly, paragraphs No. 37 and 38
thereof.

Submissions on behalf of respondents

7. Per contra, learned counsel for the
plaintiff-respondents
argues
that
the
agreement for sale being a registered
document, strong presumption exists as
regards its validity, both on the point of
execution as well as its contents and, hence,
the plea of the defendant-appellant that the
agreement was got executed fraudulently,
cannot sustain. As regards payment of
advance money, it is contended that the
sum was received in presence of witnesses
produced by the plaintiffs and the Sub-
Registrar's endorsement made on the
agreement is conclusive proof of such
payment. Shri Gupta further submits that
both the courts below have recorded pure
findings of fact based upon oral and
documentary evidence and the contention
of the appellant that there was no proof of
payment
of
advance
money
stands
dislodged in view of non-putting a
suggestion from PW-1 to that effect during
the course of his cross-examination.

Analysis of rival contentions

8. Having heard learned counsel for
the parties, I find that execution of
agreement for sale was admitted by the
defendant-appellant. Though, a plea was
taken that the agreement was got executed
under the garb of witnessing a sale deed,
evidence to that effect was seriously
lacking so as to dislodge validity of a
registered document. It is not the case of
the defendant-appellant that he was an
illiterate person unable to understand the
contents of a document or purpose for
which it was being executed. Bare plea that
the
document
was
fraudulently
got
executed without any sufficient oral and
documentary
evidence
to
dislodge
a
registered document could not suffice
dismissal of the suit. As regards payment of
advance money of Rs. 5,00,000/- (rupees
five lac), it is found that the Sub Registrar
had made an endorsement on the registered
agreement to the following effect: -

"fu"iknu ys[ki= okn lquus o le>us
et+ewu o izkIr /kujkf'k # izys[kkuqlkj mDr fodzsrk"

The recital as regards payment of
Rs. 5,00,000/- is contained at internal page
No. 3 of the agreement in the following
words:

"LVkEi i= dherh eqcfyx 20,100/-
#i;s bl bdjkjukek ds lkFk esa layXu gSa rQlhy
tjs C;kuk eqcfyx 5,00,000/- #i;s Qjhd vOoy us
Qjhd nks;e ls uxn le; jftLVah bdjkjukek le{k
xokgku ds izkIr dj fy, gSaA"

9. As regards plea of non-partition
amongst co-sharers of the land, paragraph
No. 26 of the written statement reads as
follows:

";g fd Hkwfe izfroknh o mlds
lg[kkrsnkjksa dh gS lg[kkrsnkjksa o izfroknh ds e/;
dksbZ foHkktu gqvk gS ,slh fLFkfr esa dksbZ vko';drk
Hkwfe dks fodz; djus ds vuqcU/k dh ugha FkhA"

As such, no plea was taken that
for non-partition of property, the agreement
would not be executable or sale deed
cannot be executed, rather the statement
was that no necessity arose to execute the
agreement as there was no partition
amongst co-sharers. This Court cannot read
anything which was not pleaded before the
courts below and, hence, the contention
advanced against executability of the
agreement or the sale deed on this score
cannot be accepted.
8 All. Mahavir Prasad Vs. Balveer Singh & Anr.
485

10. As far as submission that bare
affidavit would not be treated as evidence
unless the witness appears in witness box
and acknowledges filing of the affidavit, it
is to be noted that after the Code of Civil
Procedure, 1908 was amended by Act No.
46 of 1999 w.e.f. 01.07.2002, examinationin-chief is done in the form of affidavits
and cross-examination is done after the
witness concerned appears in the witness
box. In the instant case, both the plaintiffs
filed their affidavits in examination-inchief and their cross-examination would
show that no suggestion was made on
behalf of the defendant-appellant as regards
filing or non-filing of the affidavit in
examination-in-chief.

11. It would be apt to observe that
whenever a witness appears for crossexamination,
he
answers
only
those
questions, which are asked from him. That
is why, putting of suggestion is of quite
significance and if a particular relevant and
significant suggestion is not made to the
witness, his testimony cannot be discarded
for not making a statement during crossexamination. In the present case, such
suggestions are completely missing from
cross-examination of both the P.Ws.
Similar is the position with respect to
payment of part of sale consideration.
Therefore, when no specific suggestions
were made on both the aforesaid counts,
testimony of P.Ws. cannot be discarded,
rather such circumstances would go against
the
defendant-appellant
and,
hence,
argument advanced on that line also does
not have any force.

12. Once execution of registered
agreement is admitted to the defendantappellant, endorsements made by Sub
Registrar would be presumed to be correct
under
sections
58,
59
and
60
of
Registration Act, 1908. Further, on a
careful and complete reading of sections 91
and 92 of the Evidence Act, 1872 such a
presumption qua contents of the written
disposition of property as contained in the
agreement could be rebutted, but in the
instant case, this Court does not find
anything on record sufficient to rebut the
said presumption. Both the courts below
have examined the pleadings of the parties
and oral and documentary evidence led by
them and have taken a view against the
defendant-appellant. This Court, in exercise
of second appellate jurisdiction, cannot
upset the findings of fact recorded by the
trial court and the first Appellate Court,
unless shown apparently perverse.

13. The judgment of Apex Court
in Ameer Trading Corporation Ltd.
(supra), as cited form the appellant side had
arisen out of civil suit filed in the year 2001
when Code of Civil Procedure had not been
amended and the examination-in-chief was
done when the witnesses used to appear in
witness box and not by way of the affidavit.
Paragraph 31 of the said judgment, as
relied upon by learned counsel for the
appellant, in fact, is quoted version of the
judgment of Bombay High Court in F.D.C.
Ltd.
vs.
Federation
of
Medical
Representatives
Association
India
(FMRAI) and others, AIR 2003 Bombay
371. The said paragraph deals with the
provisions of Order XVIII C.P.C. as stated
prior to C.P.C. Amendment Act 46 of 1999
and even State amendments made in the
State of Uttar Pradesh were not considered
as the matter had arisen from the State of
Maharashtra. Though the view taken by the
Bombay High Court was approved by the
Hon'ble Supreme Court, considering the
amended provisions of C.P.C. read with
non-putting of suggestions during the
course of cross-examination of P.Ws., oral
486 INDIAN LAW REPORTS ALLAHABAD SERIES
testimony of the said witness cannot be
dislodged and the appellant shall not get
any benefit of the judgment in the case of
Ameer Trading Corporation Ltd. (supra).

14. In the judgment of Kishan Chand
(supra) relied upon from the appellant side,
a co-ordinate Bench of this Court held the
suit for specific performance of an
agreement as barred by Section 22(2) of the
Specific Relief Act read with Order II Rule
2 of Code of Civil Procedure on the ground
that the plaintiffs had failed to identify the
shares of alleged vendors, who had entered
into an agreement. Here, it would be
prudent to refer the said provision itself.
Section 22, as stood before amendment
made in the Act of 1963, reads as under:

"22. Power to grant relief for
possession, partition, refund of earnest
money,
etc.-(1)
Notwithstanding
anything to the contrary contained in the
Code of Civil Procedure, 1908 (5 of 1908),
any
person
suing
for
the
specific
performance of a contract for the transfer of
immovable property may, in an appropriate
case, ask for-

(a) possession, or partition and
separate possession, of the property, in
addition to such performance; or

(b) any other relief to which he
may be entitled, including the refund of any
earnest money or deposit paid or made by
him, in case his claim for specific
performance is refused.

(2) No relief under clause (a) or
clause (b) of sub-section (1) shall be
granted by the court unless it has been
specifically claimed:

Provided that where the plaintiff
has not claimed any such relief in the
plaint, the court shall, at any stage of the
proceeding, allow him to amend the plaint
on such terms as may be just for including
a claim for such relief.
 (3) The power of the court to
grant relief under clause (b) of sub-section
(1) shall be without prejudice to its powers
to award compensation under section 21."

15. A bare perusal of Section 22
would show that it does not refer to any bar
against the suit for specific performance.
The provision only says that no such relief
would be granted, unless it has been
specifically claimed. In the present case,
such a question would not arise at all as
neither any relief in terms of Section 22 (1)
(a) of the Specific Relief Act was claimed
nor has been granted by the courts below.
Therefore, the argument that the suit was
barred by Section 22 of the Act, does not
have any force and, even otherwise, facts of
the instant case are entirely different from
those which formed subject matter of the
discussion in Kishan Chand (supra).
Further, in the instant case, neither any
issue or point of determination was framed
with regard to bar of suit under any said
provision nor was there any pleading to that
effect in the written statement except a bare
statement that in view of non-partition
amongst the co-sharers necessity to execute
the agreement did not arise. Moreover,
once the execution of agreement is
admitted to the defendant-appellant, he
cannot get advantage of any recital made
therein, which would confer benefit upon
him and be read against the plaintiffrespondents. Interestingly, the defendantappellant never disclosed as to who were
other co-sharers in the property forming
subject matter of the agreement and, hence,
even necessity to implead alleged cosharers did not arise. The flaw in the
agreement on that ground, if any, would be
attributable to the defendant-appellant and
in the facts of the case, it would not defeat
8 All. Mahavir Prasad Vs. Balveer Singh & Anr.
487
the claim of the plaintiff-respondents in
whose favour different areas of the
concerned gata were agreed to be sold by
the defendant-appellant himself. For all the
aforesaid reasons, with due respect, the
judgment in Kishan Chand (supra) is if no
help to the defendant-appellant.

16. As regards interference by the
High Court in second appellate jurisdiction,
the Supreme Court has, in Kshitish
Chandra Purkait vs Santosh Kumar
Purkait, AIR 1997 SC 2517, held that
raising of a new plea at the second
appellate stage would not be proper and
that would not give rise to a substantial
question
of
law.
In
Bholaram
v.
Amirchand (1981) 2 SCC 414, a three
Judges' Bench of Supreme Court reiterated
the statement of law and set aside the
judgment by which the High Court had
upset the decisions of trial court and first
appellate court by reappreciating the
evidence.

17. In Kamti Devi (Smt.) and Anr.
v. Poshi Ram (2001) 5 SCC 311, the
Supreme Court came to the conclusion
that the finding reached by the first
appellate court cannot be interfered with
in a second appeal as no substantial
question of law would have flowed out of
such a finding. In Thiagarajan v. Sri
Venugopalaswamy B. Koil, (2004) 5
SCC 762, the Supreme Court has held
that the High Court in its jurisdiction
under Section 100 C.P.C. is not justified
in interfering with the findings of fact
and that it is the obligation of the courts
of law to further clear intendment of the
legislature
and
not
frustrate
it
by
excluding the same and where findings of
fact by the lower appellate Court are
based on evidence, the High Court in
second appeal cannot substitute its own
findings on reappreciation of evidence
merely on the ground that another view
was possible.

18. Similar view has been taken in
Kondiba Dagadu Kadam vs Savitribai
Sopan Gujar and others, (1999) 3 SCC
722 by observing that disturbance in
findings of fact would be contrary to
limitations imposed by section 100
C.P.C.
The
Supreme
Court
again
reminded
in
Commissioner,
Hindu
Religious & Charitable Endowments vs.
P. Shanmugama (2005) 9 SCC 232 that
the High Court has no jurisdiction in
second appeal to interfere with the
findings of fact. The Apex Court, in State
of Kerala v. Mohd. Kunhi (2005) 10
SCC 139 reiterated the same principle by
observing that by such interference, the
High Court would go beyond the scope of
Section 100 of the Code of Civil
Procedure.

19. In Madhavan Nair v. Bhaskar
Pillai (2005) 10 SCC 553, the Supreme
Court observed that even if the first
appellate court commits an error in
recording a finding of fact, that itself will
not be a ground for the High Court to upset
the same. In Harjeet Singh v. Amrik Singh
(2005) 12 SCC 270, the Apex Court, with
anguish, observed that the High Court had
no jurisdiction to interfere with the findings
of fact arrived at by the trial Court and the
lower appellate Court regarding readiness
and willingness to perform part of contract
in its jurisdiction under Section 100 C.P.C.

20. The view taken in the aforesaid
decisions has been reiterated by the Apex
Court in Gurdev Kaur and others vs. Kaki
and others, 2007 (1) SCC 546. In Dalip
Singh vs. Bhupinder Kaur, 2018 (3) SCC
677, the Apex Court was dealing with a
488 INDIAN LAW REPORTS ALLAHABAD SERIES
case arising out of suit for specific
performance of an agreement for sale and
set aside the judgement of High Court that
had interfered with findings of fact.

Conclusion

21. In view of the above referred
decisions of the Supreme Court it is clear
that even when two views are possible, out
of which one view has been taken by the
courts after appreciating evidence on
record, second Appellate Court would not
substitute that view by its own view. Reappreciation of evidence to arrive at a
different conclusion is quite restricted in
exercise of jurisdiction under Section 100
of Code of Civil Procedure and in the
present case, finding on executability of the
agreement, proof of its contents, question
of readiness and willingness on the part of
the plaintiff-respondents to get the sale
deed executed, are pure findings of fact
based upon the material available on
record. This Court does not find any
apparent perversity in the view taken by
both the courts below so as to upset the
impugned decisions.

22. No substantial question of law
arises for consideration.

23. The second appeal has no force
and is, accordingly, dismissed at the stage
of admission itself.
----------
(2024) 8 ILRA 488
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.08.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Second Appeal No. 1035 of 1996
Mangoo Singh & Ors. ...Appellants
Versus
Ram Autar ...Respondent

Counsel for the Appellants:
Smt. Shikha Singh, Ajay Shankar, Alrafio
Basir, D.K. Dwivedi, R.C. Tiwari, Shashi
Kumar Dwivedi, Triveni Shankar

Counsel for the Respondent:
Ajit Kumar, Kiran Kumar Arora, Rahul Sahai

A. Civil Law - Civil Procedure Code,1908 -
Section 9 - Specific Relief Act, 1963 - S.
31 - UP Z.A.&L.R. Act, 1950 - Ss. 229-B
and 331 - Suit of civil nature - Dispute
pertaining
to
the
cancellation
of
registered
Will-deed
in
respect
of
agricultural land - Whether cognizable by
Civil Court or Revenue court - Bar of
Section
331
of
the
Act,
1950
-
Applicability - Held, once a deed is
challenged, the plaintiff need not be
forced to seek a declaration of his title
and, hence, bar of Section 331 of the Act
of
1950
would
not
be
attracted
-
Cancellation of the registered Will is,
beyond doubt, the main relief as cause of
action for the suit was the existence of
Will itself - There is no provision under
the Act of 1950 empowering a revenue
court to cancel an instrument. Even
Section 229-B does not contemplate any
such provision whereunder an instrument
of transfer or conferring testamentary
succession can be expressly or impliedly
cancelled - Suits for cancellation of a saledeed or other instruments and documents
are essentially suits of civil nature. As per
section 9 of C.P.C., every suit of civil
nature is cognizable by a civil court except
its cognizance is expressly or impliedly
barred. (Para 15, 23, 26, 31 and 32)

B. Civil Law - Civil Procedure Code, 1908 -
Section 100 - Substantial question of law
- Concurrent finding of fact - Both the
Court below held that the Will was a result
of fraud and undue influence - Scope of
interference -- Held, the analysis of oral
and documentary evidence testing the Will
of 1985 on the touchstone as to whether it