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Prem Chandra v. Bharat Singh - SECOND APPEAL No. 2749 of 1980 [2005] RD-AH 7767 (19 December 2005)


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Court No.9


Second Appeal No.2749 of 1980

Prem Chand Vs. Bharat Singh

Hon. Sunil Ambwani, J.

Heard Shri Khitij Shailendra for the appellant and Shri B.K. Narain for the respondent.

This plaintiff's second appeal arises out of suit for arrears of rent and ejectment filed by Prem Singh against his own brother Shri Bharat Singh.

The original suit No.359/77 was decreed by the trial Court on 4.9.79.  The civil appeal No.70/80 was, however, allowed.  Aggrieved the plaintiff has filed this second appeal.

It is in the plaint that Smt. Lalita Devi, their mother purchased this property in Court sale in execution of the decree against her husband Bhawani Prasad in 1943, obtained by Shri Ganga Prasad.  Shri Bhawani Prasad, the judgment-debtor  died in the year 1939.  Shri Ganga Prasad the decree-holder got the sale deed executed in favour of Lalita Devi in 1943.  The plaintiff alleges that her mother purchased this property from her `Stridhan',  and that he had in turn purchased it from her mother by registered sale deed dated 29.8.69 for a sum of Rs.500/- and become the owner of the house.  His brother the defendant, is the tenant, and is liable to be evicted from the house.

The appellate Court found that Smt. Lalita Devi, the mother of plaintiff and defendant,  was taking care of all four minor children by selling potatoes and had an income of Rs.50 per month, which was hardly sufficient for taken care of the needs of the family.   The appellate Court did not believe the plaint allegation that Smt. Lalita had purchased the property in 1943 by sale deed dated 8.7.43 from her `Stridhan'.    Further the appellate Court did not accept the plea that the sale deed dated 29.8.69 was for valuable consideration as the plaintiff, who had otherwise not taken care of her mother allowed her to stay with him for a short time and by giving her food and shelter obtained a sale deed from her, and, thereafter filed the suit against his own brother for eviction.  There was no evidence of agreement of tenancy at all.

Shri Khitij Shailendra learned counsel for the appellant states that the sale deed could not be challenged as there is a bar under Section 66 of the Code of Civil Procedure, 1908 and that even if tenancy was not proved, the occupier, if the title of the plaintiff was established could be evicted  under Section 5 of the Specific Relief Act.  He has relied upon the judgments in Satya Vir Singh Vs. Kewal Ram, 1977 A.W.C. 550,  Prem Lal and others Vs. Dr. Jagat Prakash, 1966 A.W.R. 434 and Rama Shanker Vs. Bidhey Khan and another, AIR 1976 Allahabad 155.  All these judgments were rendered by this High Court on the finding that plaintiff was the owner of the property.

In the present case Ganga Prasad having obtained decree against Bhawani Prasad, executed the sale deed in favour of his widow Smt. Lalita Devi, on compassion, as she had no income and shelter to look after her four minor children.    The property was thus restored to the family by benevolence of the decree holder.  It was further found that the sale deed dated 29.8.69 was a sham transaction  as the mother was living in destitution and that payment of Rs.500/- was not the valuable consideration, which could be given by one son in favour of the mother to buy a property, which was restored to the family.  Further the appellate Court found that the tenancy was not established at all as the date of beginning of tenancy  and rent receipts were not proved.

I do not find any substance in the contention that where a sale deed has been registered, a presumption arises in favour of the recital and that it could not be avoided by the appellate Court.  There is no substantial question of law, for consideration in this second appeal.

The second appeal is, accordingly, dismissed with costs in favour of defendant respondent.




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