JOKHAN BHAR Vs. RAM SUNDER KURMI

JUDGEMENT

(1.) THIS is a defendant's second appeal against the decree and judgment of the Additional Civil Judge, Jaunpur dated 19-12-1970 dismissing the appeal filed by him.

(2.) THE facts of the case, in brief, are that Shri Jaishri Bhar, defendant-respondent, executed a pronote for Rs. 800/- in favour of the plaintiff-respondent no. 1 on 30-5-1963. A suit for recovery of the money advanced was filed by the plaintiff-respondent against Sri Jaishri Bhar, defendant-respondent. THE suit was decreed in 1966. THE decree was put into execution by plaintiff-respondent and the plot in dispute measuring " 88 acre was attached on 8-11-1966. Against the attachment an objection was filed by the defendant appellant on the ground that he has purchased the land under attachment from Sri Jaishri Bhar through a sale-deed dated 18-4-1966 before attachment. THE objection was allowed under Order XXI, Rule 58 CPC and it was held that the property in suit is not liable to attachment and sale. THE plaintiff-respondent filed the present suit under Order XXI, Rule 63 CPC against Sri Jaishri Bhar and Jokhan, the defendant-appellant for a declaration that the property in dispute is liable to attachment and sale in execution of the decree. THE suit was contested by the appellant on various grounds that the suit is not maintainable under Order XXI, Rule 63 CPC, that the sale in question is genuine and the defendant appellant is a bonafide purchaser for value, that the defendant appellant had been declared as bhumidhar of the land in suit during the consolidation of holding proceedings and that the suit was barred under section 49 of the U. P. Consolidation of Holdings Act.

(3.) I have perused the judgment of the lower appellate court. The lower appellare court has taken all the necessary facts and circumstances of the case into consideration to arrive at the finding that the sale-deed was a sham transaction and was not a valid and genuine document. The learned counsel for the appellant has not been able to challenge this finding of fact and to prove that this finding recorded by the lower appellate court is erroneous in law. Therefore, the finding of fact recorded by the lower-appellate court is in accordance with law and cannot be challenged in second appeal in this Hon'ble court.