High Court of Judicature at Allahabad
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Rajpati And Others v. Devendra Yadav And Others - SECOND APPEAL No. 579 of 2007  RD-AH 11724 (11 July 2007)
Hon. Pankaj Mithal, J.
Heard Sri. Rajeev Mishra, learned counsel for the appellants.
The plaintiffs-appellants had instituted a suit for the cancellation of the sale deed dated 3.9.1982 which was registered before the Sub-Registrar. The Suit was instituted on the ground that the plaintiffs-appellants had not executed the said sale deed; (2) no sale consideration has been received by the plaintiffs-appellants (3) the possession of the land in dispute was also not transferred in favour of the defendants-respondents. The suit was dismissed by the Trial Court vide judgment and order dated 18.7.1987 and the Civil Appeal 169 of 1957 thereof was also dismissed vide judgment and order dated 13.2.2007.
Being aggrieved the plaintiffs-appellants has preferred this second appeal.
Learned counsel for the appellants has contended that the sale deed was liable to be cancelled as possession of the land was never transferred in favour of the defendants. The Trial Court has recorded that merely on the basis of non entry of the defendants-respondents' name in the revenue records it cannot be said that the possession of the land was not delivered to him or that he is not in possession,. In fact the entries in the revenue records could not be changed as the dispute for cancellation of the sale deed had arisen. As far as the non payment of sale consideration is concerned both the Courts below recorded that the same was duly paid to the plaintiffs-appellants and as such the sale deed cannot be said to be without consideration. The findings both the above points are basically findings of fact which require no inference in Second Appeal.
Apart from the above learned counsel for the appellant has submitted that the sale deed is hit by Section 168-A of U.P.Z.A. & L.R. Act and is, therefore, void. Be as it may be the said issue was never pleaded and raised by the plaintiffs-appellants. No issue on this point was even framed. The parties had no opportunity to adduce evidence with regard to transfer of fragmentation Therefore, the said point cannot be permitted to be raised for the first time in the Second Appeal. Moreover fragmentation is not a ground for seeking cancellation of the sale deed inasmuch as under Section 168-A if there is a transfer of a fragmentation the transfer is void and the provisions of section 167 of the Act shall mutatis mutandis apply which means that the land could vest in the State.
In view of the above, the appeal lacks merits and involve no substantial question of law. It is accordingly, dismissed. However, it shall be open for the plaintiffs-appellants to take re-course to whatever legal remedy is otherwise available to him on the ground of fragmentation. No other point was raised.
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