BHAGWAN DEEN AND ANOTHER Vs. JAGANNATH

JUDGEMENT

(1.) This second appeal under Section 100 Civil Procedure Code 1908 has been filed by the appellant-defendant against judgement and decree dated 11.09.1981 passed by Civil Judge, Sitapur in respect of Civil Appeal No.128/80 (Jagannath v. Bhagwan Din) whereby he set aside the judgment and decree dated 29.04.1980 passed by Munsif, Biswa, Sitapur to dismiss the suit of the plaintiff i.e. O.S. No.39 of 77 (Jagannath v. Bhagwan Din).

(2.) During pendency of the appeal, the appellant Bhagwan Din had transferred the property in dispute through a sale deed to one Dharmpal, who has, later on, been impleaded as Appellant No.2. During the pendency of the appeal, the sole respondent Jagannath died and he was substituted by one Murli and on death of Murli, he was substituted by Ram Lakhan- Respondent No.1/1, Kalika Prasad-Respondent No.1/2 and Awadhesh Kumar-Respondent No.1/3, all sons of Late Murli.

(3.) Brief facts relevant for disposal of the second appeal is that the original plaintiff /respondent had filed a suit being Civil Suit No.39/77 for cancellation of sale deed executed by one Govindey on 2.4.74 in favour of the defendant-appellant Bhagwan Deen on the allegation that the plaintiff was the sole heir of Govindey (deceased), who was owner of the plot in dispute as detailed at the foot of the plaint, was the real maternal uncle of the plaintiff and he was a bachelor all his life and had died on 3rd January, 1975 leaving behind the plaintiff alone as his nearest heir. Prior to his death for about ten years, he was suffering from Tuberculosis and used to have fever and on that account he had become very weak. About two years prior to his death, he had lost his sense and he was completely unable to move. He had also become hard of hearing and in the beginning of 1974, he was almost on death-bed. It was further alleged in the plaint that defendant-appellant Bhagwan Deen R/o Village - Basira, District - Lakhimpur Kheri, a distant relative of Govindey deceased came to village Jafarabad and stayed with Govindey and in connection with his treatment, defendant used to take him sometimes to Biswan and on account of this Govendey-Respondent developed confidence on him and taking undue advantage of his confidence and by exercising undue influence on Govindey-defendant-appellant got executed a sale deed in respect of plot in dispute. The contents of the sale deed were never read over to executant. No sale consideration was paid to him and Govindey did not deposit 20 times of the rent, so he had no right to execute sale deed, therefore, the suit for cancellation of sale deed was filed on the following grounds :-