Gayneshwar Shukla vs Rai Sahab Pt. Jay Narayan Dharmarth Avam Vidhadan Trust Thru. President B.N. Mishra and Anr.

¶1

HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW

¶2

SECOND APPEAL No. - 198 of 2025

Gayneshwar Shukla

.....Appellant(s)

Versus

Rai Sahab Pt. Jay Narayan Dharmarth Avam Vidhadan Trust Thru. President B.N. Mishra And Anr

¶7

.....Respondent(s)

¶8

Counsel for Appellant(s) : Anurag Shukla, Preeti Shukla (Tiwari) Counsel for Respondent(s) : Mohd Nazish Iqbal, Mohammad Aslam Khan, Sudhir Pande

¶9

Court No. - 19

¶10

HON'BLE RAM MANOHAR NARAYAN MISHRA, J.

¶11

Mr. Sudhir Pande, Advocate has filed his Vakalatnama on behalf of respondent no.2. The same is taken on record.

¶12

Heard the arguments of Mr. Anurag Shukla, learned Senior Counsel assisted by Mr. Nandesh Verma, learned counsel for the appellant, Mr. Mohd. Arif Khan, learned Senior Counsel assisted by Mr. Mohd. Nazish Iqbal, learned counsel for the respondent no.1 and Mr. Sudhir Pandey, learned counsel for the respondent no.2.

¶13

The instant second appeal has been preferred against the judgment and order dated 04.08.2025 passed by learned Additional District Judge, Court No.01, Hardoi as well as judgment, order and decree dated 18.04.2017 passed by learned Additional Civil Judge (Senior Division), Hardoi in Regular Suit No.199 of 2014 by means of which first appeal preferred by the appellant/defendant has been dismissed and the judgment/ decree passed by the learned trial court has been affirmed.

¶14

Learned counsel for the appellant/defendant submitted that the plaintiff filed a regular Civil Suit No.199 of 2014 for cancellation of sale deed with an averment that Rai Sahab Pt. Jay Narayan Mishra, purchased the Nazul land of Baaziganj, including some other villages, through a registered sale deed dated 09.03.1928 from the British Government and became the owner of the entire Abadi and agricultural land of said village

¶15

SAPL No. 198 of 2025

¶16

2

¶17

and town, Bhagwant Nagar. He created a trust on 02.10.1948 by virtue of the registered Will deed dated 08.10.1975. In the plaint, it was pleaded that disputed part belongs to Plot No.313, 313/5 situated in Nazul Baaziganj, Nagar Palika Parishad Bilgram. The defendantappellant gave an affidavit in which he accepted unauthorized execution of the sale deed. The appellant filed his written statement with an averment that land sold by him was his ancestral land for more than last five generations and in family settlement of ancestral property, it fell to his share. The plaintiff had no concern with the said land in question and after execution of the sale deed by him on 13.10.2013, he is in possession. The chunk of land sold by the appellant is his own Abadi land, which is pertinent to the ancestral house of the appellant, where situates an old traditional Gaddi and people come and offer their worship. Nearby the said land, there is a Sanskrit Mahavidyalaya of the appellant and the defendant no.2 is its manager. In the present case, no commission was ever issued. The suit was filed through power of attorney, Mr. Gyanendra Singh, in the name of the Trust represented by the President of the Trust, Shri B.N. Mishra but the same was filed through power of attorney holder Shri Inder Pal @ Ashok. The pleadings of the plaint reveal that the Nazul land was purchased by the predecessor of the Trust. However, the land of the appellant and his predecessor has never been shown as Nazul land in the revenue records; rather, it is the land of Shreni KA-1. The pleadings in the plaint were not proved by the Adhyaksh of the plaintiff Trust but by an incompetent person Inder Pal, a mere of power of attorney holder but not a member of the Trust or office bearer.

¶18

The trial court decreed the suit of plaintiff without considering these legal aspects and first appellate court has also dismissed the appeal of the defendant-appellant without taking due consideration to the grounds mentioned in the memo of appeal. Both the courts below have placed reliance on a disputed affidavit. The defendant is not concerned with the land recorded in the name of the plaintiff. The appellant is native to the village.

¶19

Per contra, learned Senior Counsel appearing for respondents submitted that the instant second appeal has been preferred against the concurrent findings of the fact recorded by both the courts below in favor of the

¶20

SAPL No. 198 of 2025

¶21

3

¶22

plaintiff-respondent which need not be interfered in the second appeal. The points raised by the appellant in second appeal pertains to questions of fact and not questions of law. In fact, no substantial question of law arises in the second appeal and for want of substantial questions of law, the appeal deserves to be dismissed at the stage of admission.

¶23

Defendant no.2 was not concerned with the property shown in the disputed sale deed dated 17.10.2013, which was executed by defendant no.2 in favor of defendant no.1 without any right or title in the said property, and therefore, the trial court has rightly cancelled the said sale deed on the grounds mentioned in the plaint and the said order has been affirmed in the first appellate court in Civil Appeal No.32 of 2017. The boundary of the property sold is shown in the said sale deed but nowhere its number is mentioned. The defendant no. 2 failed to prove title of his ancestors on the said property in question.

¶24

Learned counsel for the appellant placed reliance on a judgment of this Court in F.A.F.O. No.33 of 1975, decided on 27.01.1987, wherein it is held that a person who sets up a title to property by purchase must prove that his vendor had a title in the property sold. There was no obligation upon the defendants to plead possible defects in the plaintiffs' title which might manifest themselves when the title was disclosed. It was sufficient that in the written statements, the defendants denied the plaintiffs' title, and under this plea, they could avail themselves of any defect which such title disclosed.

¶25

The appeal is admitted on the following questions of law:-

¶26

Whether the disputed plot was not identifiable for want of Survey Commission Report, which was pleaded by the plaintiff as part of Plot No.313, 313/5, and refuted by the defendant in written statement, and who pleaded that it was ancestral land of the defendant?

¶27

Whether the finding of facts with regard to an area of the land in suit as well as its boundary and location and oral family settlement propounded by the defendant suffers from perversity which requires reappraisal of evidence?

¶28

SAPL No. 198 of 2025

¶29

4

¶30

Whether the learned trial court and learned courts below have committed legal error while placing reliance on evidence of power of attorney holder of the Trust, who is neither member nor trustee, on issues of fact and he was in a position to depose on behalf of the Principal on the facts of the case? If yes, its effect.

¶31

Whether both the courts below have committed grave error of law in believing the alleged affidavit dated 20.01.2014 as a piece of evidence despite the fact that it did not bear seal or signature of any notary or Oath Commissioner, due to which it was not admissible as such? If yes, its effect.

¶32

Whether the suit for cancellation of the sale deed could not be maintained by the Trust through power of attorney holders appointed by the Adhyaksh of the Trust and not by all the trustees? If yes, its effect.

¶33

Whether the judgments of both the courts below got vitiated in law due to non-recording of specific findings that the land in question situates in Plot No.313, 313/5 and is a Nazul property? If yes, its effect.

¶34