MAHENDRA MOHAN Vs. DINESH PRAKASH AND ANOTHER

JUDGEMENT

(1.) HEARD learned counsel for the parties at the admission stage. This is plaintiff's Second Appeal arising out of Original Suit No.829 of 1996 which was dismissed on 19.2.2003 by Civil Judge (Senior Division), Varanasi. Against the said decree plaintiff -appellant filed Civil Appeal No.40 of 2003 which was dismissed on 25.9.2006 by Additional District Judge, Court No.7, Varanasi hence this Second Appeal.

(2.) THE relief claimed in the plaint was for cancellation of sale deed dated 29.11.1988 executed by defendant -respondent no.2 Smt. Kiran Bala in favour of defendant -respondent no.1 Shri Dinesh Prakash in respect of 2/3rd part of house no. C -6/43. Plaintiff and defendant -respondent no.1 are real brothers and sons of Radhey Kiran Lal. Defendant no.2 Krishna Bala is their first cousin being daughter of Shri Krishna Lal real brother of Radhey Krishna Lal. It is admitted to the parties that Shri Krishna Lal had 2/3rd share in the house (which share is in dispute) and he died on 2.4.1969 and his entire share was inherited by defendant no.2 Smt. Kiran Bala his daughter. Shri Radhey Krishna Lal father of plaintiff and defendant no.1 died on 1.3.1986 leaving behind his widow and five sons including plaintiff and defendant no.1 and a daughter. It appears that Radhey Krishan Lal and Shri Krishan Lal had another house bearing number C -5/48 -A. Smt. Kiran Bala agreed to sell her share in both the houses for Rs.40,000/ -and Rs.55,000/ -. The case of the plaintiff is that the agreement was entered into in between him and Smt. Kiran Bala and he had sent the amount through bank draft to his mother however, defendant no.1 took the money from the mother and got the agreement in respect of one house (no. e -6/43) executed in his own favour and thereafter Sale Deed was also got executed by defendant no.1 in his own favour. It was further alleged that defendant no.1 got the agreement and sale deed of the other house executed in the name of the plaintiff however, he unauthorisedly got the agreement and sale deed of the portion of house in dispute executed in his own favour. It was further stated that in the year 1996 plaintiff demanded the sale deed from defendant no.1 which he refused to give and thereafter he came to know about the fraud.

(3.) HOWEVER , both the courts below have given very cogent reasons to believe that the sale deed in question was intended to be executed and was actually executed in favour of defendant no.1. Courts below held that in the oral statement plaintiff stated that he had sent the drafts but details of the drafts were not mentioned. It was further observed that in the agreement dated 25.2.1988 cash was shown to have been paid to defendant no.2. Pass book of Smt. Jagdamba Devi mother of plaintiff and defendant no. 1 was filed in which there was no mention of the draft alleged by the plaintiff to have been sent by him to his mother. Defendant no.2 was also not got examined by the plaintiff. It has also been found that since one day before of execution of the sale deed dated 29.11.1988 plaintiff was present in Varanasi and he himself deposited Rs.70,000/ -on 26.11.1988 in his bank account and he himself got a draft of Rs.67,134/ -prepared in the name of Kiran Bala. In the year 1994 some notices were sent by the plaintiff to the defendant in respect of other Joint Hindu Family properties. The courts below recorded the finding that agreement dated 25.2.1988 and sale deed dated 28.11.1988 were executed in the presence of the plaintiff.