Civil Appeal No. 33 of 2007 · Ble High Court · 2025 on 18 Jul 2025 — Civil Appeal No. 33 of 2007

Judgment

1. Heard Sri R.R. Upadhyay, learned counsel for the appellants and Sri Nitin Srivastava, learned counsel for the respondents.

2. This is a defendants’ second appeal assailing the judgment and decree dated 31.01.2011 passed by the District Judge, Balrampur in Civil Appeal No. 33 of 2007 whereby the First Appellate Court allowed the plaintiff’s first appeal and set aside the judgment and decree dated 06. 08.2007 passed by the Civil Judge, Senior Division, Balrampur in a Regular Suit No. 504 of 1999, as a consequence, a suit for cancellation of sale deed which was dismissed by the Trial Court has been decreed by the First Appellate Court leading to the instant second appeal.

3. The instant second appeal was admitted by a coordinate Bench of this Court vide order dated 27.04.2011 on substantial questions of law framed at serial nos. 2 and 4 as mentioned in the memo of second appeal and for the ease of reference it is being reproduced hereinafter. “2. Whether the execution of the sale deed, executed by Sunder Pati having been admitted by her and being registered document does it require to be proved as laid down under Section-68 of the Indian Evidence Act? Where as the execution of the sale deed has not been denied by Sunder Pati; ------******------*****-----*****----

4. Whether the matter being sub judice before Hon’ble High Court in Writ Petition No. 112 (MS) of 2000 filed against the judgment and - 2 - order passed by Commissioner in appeal under Section 331-(3) of the U.P.Z.A. & L.R. Act (arising out from the proceedings under Section 229-B of the U.P.Z.A. & L.R. and not attained finality, has the lower appellate court committed error of law in recording the finding that the order passed by Commissioner in appeal is binding?”

4. In order to appreciate the controversy as well as to answer the

aforesaid questions of law, it will first be relevant to take a brief look at the facts of the case.

5. Originally, a Regular Suit No. 504 of 1999 was instituted by Bhurdul S/o Ram Kuber seeking a decree of cancellation of sale deed dated 18.07.1996 duly registered in the office of the Sub Registrar, Utraula, District Balrampur.

6. In the plaint, it was pleaded that the property in question belonged to Ram Pyare and his wife Smt. Chabba had pre-deceased him. It was further pleaded that Ram Pyare was issueless and Bhurdul used to take good care and tend to his daily needs and comfort. Ram Pyare being pleased with the services, love and affection as showered by the plaintiff executed a will in favour of the plaintiff.

7. It was further pleaded that upon the death of Ram Pyare while the plaintiff was in mourning, the defendant no. 1 namely Sunder Pati alleging and claiming herself to be the widow of Ram Pyare, surreptitiously got her name mutated. In quick follow on, she thereafter transferred the property by executing sale deed dated

18.07.1996 in favour of the defendants nos. 2 to 4.

8. It was also pleaded that the plaintiff had instituted a suit under Section 229-B of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to as “The Act of 1950”) before the Court of S.D.M. Utraula, bearing No. 294 (Bhurtul Vs. Sunder Pati and others) which was decreed in the favour of the plaintiff vide order dated 17.06.1997.

9. It was also pleaded that the defendants were never in possession - 3 - of the disputed property, the subject matter of the sale deed dated

18.07.1996. It was also pointed out that the defendant no. 1 had also moved an application for recall in Suit No. 294 before the SDM and later, she made an application before the SDM that the owner of the said property was Bhurtul and she did not wish to press her application for recall and the said application was accepted by the SDM.

10. In the aforesaid backdrop of facts, the original plaintiff sought a decree of cancellation of the sale deed dated 18.07.1996 on the ground that the defendant no. 1 Smt. Sunder Pati did not have any right, title to transfer the said property. Smt. Sunder Pati was not the widow of Ram Pyari and that the said sale deed dated 18.07.1996 was a sham document executed only to usurp the property without any lawful consideration.

11. The suit came to be contested and the defendant no. 1 namely Sunder Pati who filed her separate written statement whereas the vendees of the sale deed dated 18.07.1996 filed their separate joint written statement.

12. The crux of the defence as set up by Smt. Sunder Pati was that she was the widow of Ram Pyari and that she has not moved any application for withdrawing her application of recall before the SDM in suit no. 294 which were proceedings related to Section 229-B of the Act of 1950).

13. Smt. Sunder Pati pleaded that she was the wife of Ram Bharose and not the widow of Ram Pyare. She further stated that the suit filed by Bhurdul under Section 229-B of the Act of 1950 was decided and the issue regarding rights of Bhurdul were already declared in his favour. Even though the defendant no. 1 had moved an application for recall, however, she later, had withdrawn the same and as such, the order passed by the SDM dated 17.06.1997 had attained finality. She - 4 - further admitted the fact that her name was recorded on the basis of succession (PA-11) and the sale deed executed in favour of the defendant nos. 2 to 4 was without consideration and a fictitious document. In this way she supported the plaintiff.

14. The purchasers from Sri Sunder Pati namely defendant nos. 2 to 4 filed their separate written statement wherein they denied the stand taken by Smt. Sunder Pati, which was in collusion with the plaintiffs.

15. The defendant no. 2 to 4 pleaded that the plaintiff had won over the defendant no. 1 and got a sham written statement filed in his favour. It was further stated that Sunder Pati had got her name mutated and thereafter she executed the sale deed in favour of defendant nos. 2 to 4 for a valuable sale consideration.

16. It was specifically pleaded that the original tenure holder namely Ram Pyare had a wife namely Chabba, however, since she did not bear any children for Ram Pyare, hence, with the consent of his first wife namely Chabba he re-married with Smt. Sunder Pati.

17. It was also urged that unfortunately, Ram Pyare did not have any children from his second wife too. The plaintiff had falsely set up a case on the basis of an unregistered Will said to have been executed by Ram Pyare in his favour. The plaintiff was neither the heir nor he had any relationship with Ram Pyare but in order to usurp the property, he had fabricated the said Will.

18. It is also urged that Sunder Pati had got her name mutated on the basis of succession, being the widow of Ram Pyare and thereafter executed a sale deed in favour of the defendant nos. 2 to 4. It was also pleaded that Smt. Sunder Pati also executed another and a separate sale deed in respect of Plot Nos. 3025 in favour of Lal Bihari and Shiv Shankar and though the plaintiff has filed a suit seeking cancellation of the instant sale deed relating to the defendants nos. 2 to 4, however, he did not challenge the sale deed executed in favour of Lal Bihari - 5 - and Shiv Shankar. It is in the aforesaid backdrop, it was urged that the instant suit was an outcome of pure machinations and as such was liable to be dismissed.

19. Upon the exchange of pleadings, the Trial Court framed two issues:- (i) Whether the disputed sale deed dated 18.07.1996 is liable to be cancelled in light of the averments made in the plaint; (ii) Whether the plaintiff is entitled to any relief.

20. The parties led evidence both oral and documentary and the Trial Court while dealing with issue no. 1 recorded a finding that Sunder Pati was the widow of Ram Pyare. In order to arrive at the aforesaid conclusion, the Trial Court took note of the order of mutation. The litigation relating to mutation which emanated in the revenue courts. The revision preferred by the plaintiffs before the Court of Commissioner which was dismissed against which the defendants had filed a writ petition before this Court. The Trial Court also compared the picture affixed on the impugned sale deed and the picture of Sunder Pati as affixed on the Kisan Bahi and found it to be the same, hence, it held in favour of the defendants and the Suit was dismissed.

21. During the pendency of the civil suit, Bhurtul expired and he was substituted by Rajeshwari Prasad who filed Regular Civil Appeal No. 33 of 2007. During pendency of the appeal, Smt. Sunder Pati also expired and since she had already sold a property to the defendant nos. 2 to 4, hence, they continue to contest the appeal.

22. It is urged that the First Appellate Court by means of its judgment and decree dated 31.01.2011 allowed the appeal and decreed the suit for cancellation of the sale deed which prompted the defendants to file the instant second appeal.

23. It may be relevant to notice that during the pendency of the - 6 - instant second appeal, the defendant no. 3 in the Trial Court (the appellant no.3 herein) also expired and his legal heirs were also brought on record as appellant no. 3/1 to 3/3.

24. Sri R.R. Upadhyay, learned counsel for the appellant vehemently urged that the First Appellate Court had committed an error in decreeing the suit. It is urged that once it was admitted to Smt. Sunder Pati that she had executed the sale deed in favour of the appellants herein and the sale deed being a registered document, it was not required to be proved rigorously in terms of Section 68 of the Indian Evidence Act.

25. It was further submitted that Bhurdul had arrived at an understanding with Smt. Sunder Pati and thereafter Bhurdul had won over Sunder Pati and got a sham written statement filed in the suit which was self-serving for the plaintiff and it could not be made binding on the defendants.

26. The learned counsel for the appellant has further urged that admittedly in proceedings arising from the Revenue Courts, the matter had travelled up to this Court where the same issue was pending and in light of the pending writ petition no. 112 (MS) of 2000 which arose from the proceedings under Section 229-B but it had not attained finality. In such circumstances, the order passed by the First Appellate Court without taking note of this aspect has rendered the judgment passed by the of the First Appellate Court liable to be set aside.

27. It has also been urged that the findings recorded by the First Appellate Court are contrary to the material on record, hence, it deserves to be set aside.

28. The learned counsel for the respondent while refuting the aforesaid submissions has urged that there was no material on record which could establish that Smt. Sunder Pati was the widow of Ram Pyare. In case if this fact could not be proved, the necessary corollary - 7 - is that Sunder Pati had no right to deal with the property of Sri Ram Pyare, hence, selling the property of Ram Pyare on the pretext of being the widow is nothing but a fraudulent exercise and the document being void, no right title or interest could accrue to the defendant nos. 2 to 4, hence, the finding recorded by the First Appellate Court requires no interference.

29. It is urged that the suit preferred by Bhurdul before the Revenue Court under Section 229-B of the Act of 1950 was sought to be contested by the defendants who had filed their application for impleadment which was later challenged and even after the orders were passed by the Commissioner, the same was assailed further in W.P. No. 112 (MS) of 2000. It has been pointed out that the said writ petition stood dismissed for want of prosecution way back in the year

2014. Moreover, aforesaid, no effort was made to get the said writ petition restored, hence, in such circumstances, no benefit can be derived by the appellant from the alleged writ petition. Thus, the second appeal deserves to be dismissed.

30. The Court has heard the learned counsel for the parties and also perused the material on record.

31. In order to answer the aforesaid two substantial questions of law noticed hereinabove and considering the dispute, the first issue that requires to be determined is whether Smt. Sunder Pati actually had any right to execute the sale deed dated 18.07.1996. This question gains importance for the reason that there is a conflict between the parties contesting this appeal relating to the status of Sunder Pati.

32. As per the plaintiffs, Sunder Pati was the wife of Ram Bharose whereas as per the defendants, she was the second wife of Ram Pyare. In case if it is found that Sunder Pati was the wife of Ram Bharose then in any case, she would have no right to intermeddle with the property of Ram Pyare. Moreover, it is not the case of the defendants - 8 - that Sunder Pati was somehow related to Ram Pyare, excluding her alleged relationship of being the wife of Ram Pyare. In such circumstances, her marriage is not proved, then she will have no right to the property as she did not claim to have any Will of Ram Pyare. Hence, the execution of the sale deed will not come to her help.

33. However, if it is held that she is the wife of Ram Pyare then of course the sale deed executed by her in favour of the contesting defendants, (the appellants herein) would have some semblance of transferring title, being the successor of Ram Pyare. Then the Court may consider as to whether the appellants were required to prove the sale deed in terms of Section 68 of the Indian Evidence Act and even the impact of the writ petition which was filed bearing No. 112 (MS) of 2000.

34. At the outset, it may be noticed that in the plaint, there was a clear averment that Sunder Pati was wife of Ram Bharose and not wife of Ram Pyare. Sunder Pati filed her written statement wherein she admitted the fact that she was wife of Ram Bharose and not Ram Pyare.

35. In the written statement filed by the contesting appellants defendant nos. 2 to 4 of the suit, in paragraph 19 of their written statement had specifically pleaded that Ram Pyare was married to Smt. Chabba but since she did not bear any children, hence, Ram Pyare with the consent of his first wife i.e Smt. Chabba solemnized a second marriage with Smt. Sunder Pati. Thus, this being the pleadings and since it was pleaded by defendant nos. 2 to 4 that Ram Pyare had performed a second marriage with Sunder Pati, hence, the burden of proving this fact was on the shoulders of the appellants.

36. The appellants herein could not demonstrate nor could point out by the evidence led before the Trial Court as to when Ram Pyare performed his second marriage with Sunder Pati. It was also not - 9 - pleaded nor proved in evidence that in whose presence the alleged marriage took place and especially when the plaintiff and the defendant no. 1 both stated that Sunder Pati was the wife of Ram Bharose.

37. The record would indicate that the Trial Court while decreeing the suit has merely relied upon a document which is the copy of a First Information Report bearing Paper No. 133 which was lodged by Smt. Sunder Pati alleging herself to be the wife of Ram Pyare R/o Kishanpur against one Sri Jokhu. The Trial Court noticed that Jokhu was the defendant Rajeshwari Prasad who was also known as Jokhu. The Trial Court came to be conclusion that previously Jokhu had attempted to usurp and take over the possession of the house and thereafter on the basis of an alleged will got the name mutated in the name of Bhardul.

38. It was also noticed by the Trial Court that Sunder Pati had executed another sale deed in favour of Lal Bihari and Shiv Shankar but no challenge was made to the said sale deed.

39. In contrast, the First Appellate Court found that the basic factum of the second marriage with Sunder Pati was not proved and without that proof of marriage it could not be held that the sale deed executed by Smt. Sunder Pati was valid.

40. Examining this aspect of the matter, this Court finds that admittedly the property belonged to Ram Pyare. It is an admitted fact that Chabba was the wife of Ram Pyare and from his wife he did not have any children. The plaintiff claimed the property of Ram Pyare on the basis of an unregistered will.

41. Admittedly, Sunder Pati does not fall in the line of succession nor she claims any right on any testamentary instrument. Thus, the property of Ram Pyare could only devolve on Sunder Pati if she was the wife. - 10 -

42. Since it was the defendant who had raised the plea that Sunder Pati was the wife of Ram Pyare, it was incumbent upon them to have proved this fact. In the entire written statement filed by defendant nos. 2 to 4 except for making a statement that Sunder Pati was the second wife of Ram Pyare but no issue was framed on this point nor any of the parties made any attempt to get an additional issue framed or lead any evidence in this regard. Even while leading the evidence, the defendants did not examine any witness who could prove the facts relating to Sunder Pati having acquired title to the property in question on the basis of succession.

43. It needs to be mentioned that the alleged wedding whether could be treated to be valid since as per para 19 of the written statement, it was stated that Ram Pyare solemnized a second marriage with the consent of Chabba. This is an important fact for the reason that in presence of one wife performing a marriage for the second time will not confer any right on the second wife nor she gets the status of a wife, in law.

44. Since there were no pleadings or proof regarding the fact that whether the second marriage was solemnized after the death of the first wife Chabba, hence, either way smt. Sunder Pati could not get any legal status.

45. Another aspect, which is apparent is that Smt. Sunder Pati did not enter into the witness box during the entire trial. Even though Sunder Pati had filed her written statement supporting the claim of the plaintiff and denied the execution of the sale deed in favour of the defendant nos. 2 to 4 including the fact that she was the widow of Ram Pyare. The defendant nos. 2 to 4 never made any attempt to get Smt. Sunder Pati summoned as a witness box for her statement and if she did then she could have been cross examined.

46. There were two documents on record wherein Sunder Pati gave - 11 - her status as wife of Ram Pyare i.e. the two sale deeds executed by her.

47. There was no cogent evidence to indicate that how Smt. Sunder Pati could claim herself to be the widow of Ram Pyare. In law, Sri Ram Pyare could not have performed the second marriage and even if he did, no right could be conferred on Smt. Sunder Pati. Since the plea was raised by the defendant and not proved by the defendant, accordingly, it could not be held that Smt. Sunder Pati was the wife of Ram Pyare.

48. The reasoning adopted by the Trial Court noticing a First Information Report filed by Smt. Sunder Pati against Jokhu cannot override the legal requirement of proving Sunder Pati as the wife of Ram Pyare. Once, the basic title flowing from Ram Pyare to Smt. Sunder Pati could not be established. It is safely interred that Sunder Pati did not acquire any right in the property of Ram Pyare that she could further transfer to the defendant nos. 2 to 4 by means of the impugned sale deed dated 18.07.1996.

49. It does not make any difference that in case if Sunder Pati had executed another sale deed in favour of Lal Bihari and Shiv Shankar and it was not cancelled that will not give rise to any inference that Smt. Sunder Pati was the wife of Ram Pyare. Having acquired a right on the basis of a status, which is disputed, cannot be treated to have been proved in law by merely suggesting that if one did not seek the cancellation of another instrument, it cannot enure to the benefit of the defendants to draw an inference of title having validly passed on the basis of document such as the First Information Report or another sale deed, in absence of other basic evidence direct or corporative.

50. It is precisely this issue which was considered by the First Appellate Court which culminated in the findings while allowing the plaintiff’s first appeal. This Court does not find that there is any error - 12 - in either the approach or the evaluation of the evidence made by the First Appellate Court while decreeing the suit for cancellation. Once the defendant failed to prove that Sunder Pati was the second wife and the defendants also failed to prove as to how any legal right and title would be conferred on Smt. Sunder Pati, hence, the defendant could not protect their sale deed.

51. In light of the aforesaid discussion, even if the sale deed was not proved in its strict sense in terms of Section 68 of the Indian Evidence Act ye it will make no difference for the reason that in the instant case it was not actually the bare factum of the execution and attestation of the sale deed which was under challenge rather it was the right and title of Sunder Pati in the first place which was in question and in absence of valid title Sunder Pati could not have transferred any better title that what she acquired.

52. Even assuming if the sale deed as claimed by the defendants dated 18.07.1996 is proved in terms of Section 68 of the Indian Evidence Act, even then it does not mean that valid rights and title would automatically vest with the defendants. Execution and attestation is one thing and the competence and the right to transfer the proprietary rights through a sale is another issue. In the instant case what was relevant was the transfer of proprietary rights from Sunder Pati to defendant nos. 2 to 4 which was important and once it was held that Sunder Pati was not competent to transfer any title as she acquired none, hence, the aforesaid question upon which the appellants have made their submissions do not impress the Court.

53. Keeping in mind the aforesaid findings, the mere fact that some proceedings were initiated in the revenue court and were engaging the attention of this Court in terms of W.P. No. 112 (MS) of 2000 also pales into insignificance as it has been pointed out by learned counsel for the respondent that the said writ petition stood dismissed in default and for want of prosecution in the year 2014and this fact could not be - 13 - disputed by the counsel for the appellants.

54. In this view of the matter, the issue of the subject matter being subjudice has no role nor it can impact the findings recorded by the First Appellate Court as in the instant the suit for cancellation of a sale deed and the power to cancel an instrument lies with the Civil Court. In the given circumstances, the said issue does not create any embargo for the Civil Court to have proceeded and decide the question of cancellation of a sale deed especially based on the ground that Sunder Pati was not the widow of Ram Pyare and this fact could not be proved by the defendants.

55. Thus, for the aforesaid reasons, this Court is satisfied that the judgment and decree passed by the First Appellate Court dated

31.01.2011 does not suffer from any manifest error to persuade this Court to interfere. The second appeal is devoid of merits and is accordingly dismissed. Costs are made easy. The judgment and decree of the First Appellate Court 31.01.20211 passed in Civil Appeal No. 33 of 2007 is affirmed. The records of the Trial Court be returned forthwith. Order Date :- 18th July, 2025 Asheesh (Jaspreet Singh, J) ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench