@DELETEUPPERDATA
Dinesh Gupta, J.@mdashThis second appeal is preferred against the judgment and decree dated 31.3.1998 passed by Civil Judge (Senior
Division), Shahjahanpur in Civil Appeal No. 20 of 1974 arising out of judgment and decree dated 31.1.1974 passed by Munsif, Shahjahanpur in
Original Suit No. 301 of 1970. The brief facts, which give rise to this appeal are that the plaintiff-respondent (hereinafter called as the
respondent"") filed a suit for the relief of cancellation of sale-deed dated 9.4.1969 and for possession. The suit was decreed for cancellation of
sale-deed. However, so far as the suit regarding possession was concerned, the suit was dismissed.
2. The respondent filed first appeal before the learned District Judge, which was registered as Civil Appeal No. 20 of 1974 and was transferred to
the Court of Civil Judge (Senior Division) and the Civil Judge initially allowed the appeal vide order dated 31.1.1974 and also granted the relief of
possession in favour of the respondent.
3. The defendant-appellant (hereinafter called as the ""appellant"") aggrieved with the judgment, preferred second appeal before the High Court and
the High Court vide its order dated 10.1.1997 remanded back the matter to the Appellate Court to decide the appeal afresh in the light of the
observations made by the Court.
4. After remand from the High Court, the Appellate Court after hearing the argument of both the parties, again allowed the appeal and decreed the
suit of the plaintiff-respondent for the relief of possession also.
5. Feeling aggrieved, the appellant preferred this second appeal before this Hon''ble High Court.
At the time of admission of this appeal, Lower Court record was requisitioned and notices were also issued to the respondents and respondents
put-in appearance.
6. Heard Shri Santosh Kumar, learned Counsel for the appellant and Shri Vinod Swarup, learned Counsel for the respondent at the time of
admission.
Learned Counsel for the appellant submitted that from the facts narrated in the appeal, it is clear that one sale-deed was executed on 9.4.1969 by
Smt. Bismillah Begam, who was mother of Mohd. Shamim Khan claiming that Mohd. Shamim Khan was minor and she executed the sale-deed as
guardian after accepting Rs. 800/- as sale consideration in favour of the appellant.
7. Another sale-deed was executed by Mohd. Shamim Khan on 18.8.1969 claiming himself to be a major after accepting Rs. 4,000/- in favour of
the plaintiff-respondent. Thereafter, again 3rd sale-deed was executed by Mohd. Shamim Khan on 9.7.1974 in favour of the appellant.
8. After the execution in favour of the respondents, respondents filed a suit for cancellation of sale-deed dated 9.4.1969 on the ground that Mohd.
Shamim Khan was major at the time of alleged sale-deed and his mother Smt. Bismillah Begam had no right to transfer the property as guardian on
behalf of Mohd. Shamim Khan and also claimed possession on the basis of sale-deed dated 18.8.1969 in his favour.
9. The suit was contested by the appellant as well as by Mohd. Shamim Khan. Both the defendants have alleged that the sale-deed executed on
18.8.1969 was without consideration and on outcome of fraud.
10. The Trial Court cancelled the sale-deed on the ground that Mohd. Shamim Khan was major at the time of execution of alleged sale-deed.
So far as the possession is concerned, the Trial Court recorded a finding that since the sale-deed dated 18.8.1969 was without consideration,
therefore, the suit for possession was dismissed.
11. The respondent filed an appeal. The appeal was allowed and the plaintiff''s suit was decreed for possession also. In the meantime, Mohd.
Shamim Khan entered into a compromise and admitted execution as well as receipt of sale consideration of sale-deed dated 18.8.1969 and after
considering the same and other facts, the Appellate Court allowed the appeal and decreed the suit for possession also.
12. Mohd. Shamim Khan also filed a second appeal, which was registered as Second Appeal No. 315 of 1976 and the same was dismissed vide
order dated 10.1.1997 holding that no appeal under section 96(3), C.P.C. is maintainable against consent decree.
The defendant-appellant, Ashiq Husain also filed second appeal, which was registered as Second Appeal No. 2219 of 1975 and the same was
allowed by the order dated 10.1.1977 and the matter remanded back to decide afresh whether the sale-deed dated 18.8.1969 was without
consideration or not.
13. After remand the matter, the Appellate Court after considering the facts available on record, allowed the appeal and held that the sale-deed
dated 18.8.1969 was for consideration and payment of Rs. 4,000/- as sale consideration, was proved and again suit for possession was decreed
in favour of the plaintiff-respondent.
14. Learned Counsel for the appellant submitted that sale-deed dated 18.8.1969 was without consideration and this fact was admitted by Mohd.
Shamim Khan in his written statement. Later on Mohd. Shamim Khan colluded with the plaintiff-respondent and entered into a compromise. The
plaintiff-respondent has failed to prove the payment of Rs. 4,000/- as sale consideration, and as such, the sale-deed was without consideration and
the suit for possession on the basis of sale-deed dated 18.8.1969 would not be decreed.
The Counsel further submitted that the Appellate Court solely based its findings on the compromise filed between the parties i.e., appellant and
Mohd. Shamim Khan, which has no binding effect on the defendant-appellant.
The Counsel further submitted that Appellate Court has wrongly misread and misinterpreted the receipt for Rs. 4,000/- alleged to have been
executed by Mohd. Shamim Khan, which was nothing but a forged document.
15. Learned Counsel for the respondent submitted that so far as the cancellation of sale-deed dated 9.4.1969 is concerned, the finding recorded
by both the parties as well as the Trial Court is concurrent in nature.
16. Admittedly, Mohd. Shamim Khan was major at the time of alleged execution of sale-deed dated 9.4.1969, and hence, the sale-deed executed
by his mother was a void document and no right passed to the appellant on the basis of above said sale-deed.
17. So far as the sale-deed dated 18.8.1969 is concerned, the defendant-appellant has never challenged the sale-deed by filing suit for its
cancellation. The execution of sale-deed has been admitted by Mohd. Shamim Khan and also a receipt of Rs. 4,000/-, the defendant-appellant has
no right to challenge the receipt of Rs. 4,000/- as sale consideration by Mohd. Shamim Khan.
18. So far as the compromise entered into by Mohd. Shamim Khan is concerned, the compromise was fully valid and even the decree was
challenged by Mohd. Shamim Khan by way of second appeal, the same was also dismissed.
The finding recorded by the Appellate Court on the fact of payment of sale consideration is based on evidence on record. Hence, there is no
ground for interfering in the said finding.
19. I am unable to accept the contention raised by the learned Counsel for the appellant.
Admittedly, the sale-deed dated 9.4.1969 was held to be a void document and the learned Counsel for the appellant has also admitted this fact.
20. So far as the sale-deed dated 18.8.1969 is concerned, admittedly no suit for its cancellation either by Mohd. Shamim Khan or by defendant-
appellant was filed. It was only in the suit filed by the respondent for cancellation of sale-deed dated 9.4.1969 by way of defence, the defendant-
appellant and Mohd. Shamim Khan challenged the sale-deed dated 18.8.1969 by stating that it was a outcome of fraud and no sale consideration
was passed.
21. Later on Mohd. Shamim Khan admitted the execution of sale-deed as well as the receipt of sale consideration. The Appellate Court on the
basis of evidence available on record, recorded a categorical finding that Mohd. Shamim Khan has received sale consideration.
22. The Court is of the view that the payment of sale consideration whether paid or not available only to Mohd. Shamim Khan and not to the
defendant-appellant. It is true that appellant is not bound by the compromise entered into by Mohd. Shamim Khan and plaintiff-respondent.
However, it was only in the personal knowledge of Mohd. Shamim Khan whether the sale consideration was paid to him or not. The Appellate
Court after considering the documentary as well as oral evidence on the fact of payment of sale consideration by plaintiff-respondent to Mohd.
Shamim Khan recorded a categorical finding that sale consideration paid to Mohd. Shamim Khan and this is a finding of fact. Learned Counsel for
the appellant failed to show me that there is any perversity in the judgment passed by the Appellate Court. He further failed to show me that any
evidence is misread, misinterpreted or left to be considered. No substantial question of law is involved in the appeal.
The appeal is liable to be dismissed and the same is accordingly dismissed.
