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Smt. Premvati v. Pramod Singh & Others - SECOND APPEAL No. - 1027 of 2007  RD-AH 16507 (9 October 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 27
Second Appeal No. 1027 of 2007
Smt. Premvati Vs. Pramod Singh and others
Hon. Dilip Gupta, J.
The plaintiff has filed this Second Appeal for setting aside the judgment and decree passed by the learned Additional District Judge, Court Room No. 1, Etah by which the Civil Appeal, that had been filed by the defendants for setting aside the judgment and decree of the Trial Court, was allowed and the suit was dismissed.
The Original Suit had been filed for permanent injunction to restrain the defendants from interfering with the possession over the open land. It was stated that Allauddin was the owner in possession of the disputed land. He executed a sale-deed in favour of the plaintiff on 25.7.1994 for a consideration of Rs. 16,000/- and gave the possession of the land to the plaintiff. The plaintiff wanted to raise the constructions on the said land but the defendants started interfering with the raising of such constructions and, therefore, the suit was filed.
A written-statement was filed by the defendants. It was stated that Allauddin was not the owner of the disputed land and, therefore, the sale-deed executed by him in favour of the plaintiff was void and did not confer any rights. It was also stated that the plaintiff was not in possession of the land. On the other hand, it was asserted that Rahmat Ullah was the owner of the property who had executed a sale-deed on 21.2.1990 in favour of respondent Nos. 1 and 2 for a consideration of Rs. 1500/-. Possession was also handed over to the said defendants and on the said land the defendants have set up their machines and are using it continuously. It was also stated that Allauddin had filed a suit against the defendants in respect of the land situated to the south of the disputed land which suit was dismissed on 11.10.1994.
The Trial Court decreed the suit holding that Allauddin was the owner of the disputed property which he sold to the plaintiff and the plaintiff was in possession of the land.
The defendants filed Civil Appeal which has been allowed by the judgment and decree dated 30.8.2007. The Lower Appellate Court, on the basis of evidence on record, has recorded a categorical finding that Allauddin was not the owner of the disputed land and, therefore, the sale-deed executed by him on 25.7.1994 in favour of the plaintiff was void and of no consequence. In coming to the said conclusion, the Lower Appellate Court took into consideration the statement made by PW 1 in the cross-examination that Allauddin inherited the property along with his two brothers and he did not know whether any partition had taken place between the brothers. The Lower Appellate Court also noticed that the statement of PW 1 did not corroborate the statement made by plaintiff PW 2 and in fact was contrary to it as he stated that Allauddin was the Zamindar of the land. The Court also noticed that documents had not been filed by the plaintiff to show that Allauddin was the owner of the property who could validly transfer the land in favour of the plaintiff. It was also noticed that if Allauddin was Zamindar of the land for the last 50 years, then documents should have been filed to show his zamindari. The Lower Appellate Court, therefore, concluded that there was no evidence on record to show that Allauddin could validly execute the sale-deed in favour of the plaintiff.
The Supreme Court in Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and others, AIR 1999 SC 2213 observed:-
"It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from the given set of circumstances, two interferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence."
Learned counsel for the appellant has not been able to place any document before the Court which may indicate that Allauddin was the owner of the land in dispute which he could transfer to the plaintiff. The Lower Appellate Court has also observed that Allauddin was not in possession since from the evidence of PW.1 and P.W. 2 that he was residing in another village. The judgment of the Lower Appellate Court does not suffer from any infirmity.
The Second Appeal is, therefore, liable to be dismissed at the admission stage as no substantial question of law arises for consideration. It is, accordingly, dismissed.
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