Durga Das vs Naubat Singh and Others

Rakesh Tiwari, J.—Heard Counsel for the appellant and perused the record.

The plaintiff appellant claiming himself to be the owner of land of Khasra No. 106 situated at village Sirsa Bada, Pergana Marhara, Tehsil and District Etah, is said to have executed a conditional sale deed in favour of Bhagwan Das and Nathu Ram on 4.6.1963. As per condition of the sale deed, Bhagwan Das on 30.12.1966 executed sale deed of 1/2 share in favour of the plaintiff appellant in which name of defendant No. 3- Chob Singh was also entered who it appears executed a sale deed of 1/2 share (1/4th of the entire land) in favour of defendant Nos. 1 and 2 on 4.12.1974. The plaintiff appellant claims that he had no knowledge of this sale deed till February 1982.

The plaintiff appellant filed original suit No. 210 of 1983, Durga Das v. Naubat Singh in the Court of civil Judge (J.D.), Etah for cancellation of the aforesaid sale deed dated 4.12.1974. The suit was filed on 26.4.1983 and was dismissed vide judgment and order dated 19.12.2007. Civil Appeal No. 3 of 2008, Durga Das v. Naubat and Ors. preferred by the plaintiff appellant was also dismissed by judgment and order dated 13.4.2010.

Both the Courts below have recorded concurrent findings of fact against the plaintiff appellant and have also held that original suit No. 210 of 1983, Durga Das v. Naubat and Ors. was beyond time and suffered from latches. The courts below disbelieved case of the plaintiff that he had no knowledge of the sale deed from 4.12.1974 to February 1982. The findings recorded by the Courts below are based on appreciation of oral and documentary evidence on record.

Submission of the Counsel for appellant that courts below have recorded incorrect findings of fact and have thus committed illegality in dismissing the suit for cancellation of the sale deed, is not sustainable for the reasons stated above. Findings of fact recorded by the Courts below cannot be reappreciated by the High Court in second appeal unless and until perversity is established from the impugned judgments. No such perversity has been shown.

Second appeal is to be admitted only on substantial question of law and as stated earlier this Court will not reappreciate the evidence particularly when findings of fact against the appellant cannot be shown to be patently perverse or suffering from any gross illegality which is not in the instant second appeal.

For the reasons stated above, this Court is not inclined to interfere with the matter as no substantial question of law arises for consideration in this second appeal.

The appeal is accordingly dismissed. No order as to costs.