Ram Sanehi Gupta Vs Mahesh and 3 Others

Neutral Citation No. - 2024:AHC-LKO:19793

Court No. - 4

Case :- FIRST APPEAL FROM ORDER No. - 70 of 2024

Appellant :- Ram Sanehi Gupta Respondent :- Mahesh And 3 Others Counsel for Appellant :- S.Mohd Kazim,Pramod Kumar,Syed Jamal Ahmad

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Hon'ble Rajnish Kumar,J.

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Heard Shri S.Mohd.Kazmi, learned counsel for the appellant.

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This First Appeal From Order under Order 41 Rule 1(u) of the Code of Civil Procedure has been filed challenging the judgment and decree dated 11.01.2024 passed by the Additional District Judge/FTC Ist, Lucknow in Regular Civil Appeal No.282 of 2018; Mahesh and others Versus Ram Sanehi Gupta and others by means of which the judgment and decree dated 24.10.2018 passed by the trial court in Regular Suit No.333 of 2005 filed for cancellation of sale deed executed in favour of the appellant has been set aside and the case has been remanded for fresh decision after affording opportunity of evidence and hearing to the parties.

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Learned counsel for the appellant submits that the father of the respondents no.1 and 2 had filed a Suit for cancellation of sale deed claiming the right and title on the half share of his brother Laxmi Narain on the basis of Will deed, which was unregistered and forged and finding it to be correct the trial court had dismissed the suit, but learned appellate court, without considering that the Will deed could not be proved, allowed the appeal and remanded the case, whereas the sale deed was executed by the wife of Late Laxmi Narain i.e. Laxmi Devi in favour of the appellant in accordance with law after accepting the sale consideration. Thus the judgment and order passed by the appellate court is not sustainable in the eyes of law and is liable to be set aside.

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Having considered the submissions of learned counsel for the appellant, I have perused the records.

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A Suit for cancellation of sale deed dated 05.03.2005 executed in favour of the appellant by Laxmi Devi claiming herself to be the wife of Laxmi Narain, brother of the father of

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the respondents no.1 and 2 was filed. The father of respondents no.1 and 2 had claimed the right on the land in dispute on the basis of Will deed dated 14.08.2003. The Will deed was unregistered. To prove the Will deed the attesting witness of Will deed, namely, Shyam Manohar was produced as P.W.3. However it appears that at some places he said that he was illiterate and he did not know as to what was written in the Will deed and as to whether the blank papers were got signed from Laxmin Narain or not, whereas he specifically deposed that the Will deed was written before him on 14.08.2003 and Laxmi Narain, after going through the same, had put his signatures, thus the Will Deed was proved in accordance with Section 68 of the Evidence Act, but the learned Trial Court considering the evidence of P.W.3 to the effect that he stated that he does not know as to whether the photo of the executor was pasted on the Will deed or not and the aforesaid minor discrepancies and that the land in dispute has been mutated in favour of Laxmi Devi held that the Will deed could not be proved. The appellate court considered the same and found that trial court has passed the order without considering the aforesaid issues.

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So far as the sale deed executed in favour of the appellant by Laxmi Devi is concerned, the same has been held to have been executed in accordance with law as the name of Laxmi Devi was mutated in place of Laxi Narain and the sale consideration was transferred in her account, whereas Laxmi Devi had appeared in the witness box as D.W.2 and she has admitted that she was not wedded wife of Laxmi Narain and she use to live with him as husband and wife. Laxmi Devi had also filed objection at the appellate state and admitted in paragraph 4 that she is not married wife of Laxmi Narain. Thus admittedly Laxmi Devi was not the married wife of Laxi Narain, therefore she could not have succeeded or inherited the property of Laxmi Narain, but it has not been considered by the trial court. It is also noticed that though the trial court recorded the finding in regard to the issue no.2 considering the evidence of Laxmi Devi who appeared as D.W.2, but without considering that she had stated in the cross examination that she was called on the assurance of getting sanction of Widow pension in her favour, for which the photo and thumb impression was taken, therefore it also appears that the sale deed was got executed fraudulently, but merely because some sale consideration was transferred in her account and her name was recorded in the revenue records,

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the sale deed has been found to have been validly executed.

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In view of above and considering the over all facts and circumstances of the case and considering the evidence on record this court finds that the judgment and decree passed by the trial court in Original Case no.333 of 2005 is not sustainable and learned appellate court has rightly and in accordance with law set aside the order of trial court and remanded the case for fresh disposal in accordance with law. This First Appeal From Order has been filed on misconceived grounds, which is not sustainable in the eyes of law. It is liable to be dismissed.

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The First Appeal From Order is, accordingly, dismissed .

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. ....................................... .(Rajnish Kumar,J.) Order Date :- 5.3.2024

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Banswar

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Digitally signed by :- RAM NARESH BANSWAR High Court of Judicature at Allahabad, Lucknow Bench

Ram Sanehi Gupta v. Mahesh and 3 Others

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Ram Sanehi Gupta v. Mahesh and 3 Others

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