DURGA PRASAD Vs. SUBEDAR SINGH

JUDGEMENT

(1.) THIS is a plaintiff' s second appeal in a suit for cancellation of a sale-deed dated July 22, 1966 executed by the second defendant Jagtamba Singh in favour of the first defendant Subedar Singh in respect of certain plots of land detailed at the foot of the plaint.

(2.) THE plaintiff came to court with the allegations that he was adopted on Feb. 9, 1943 by the second defendant Jagtamba Singh as his son, that the property transferred under the sale-deed was ancestral in which he had an interest by birth as a son of Jagtamba Singh; that there was no legal necessity for the sale and his consent not having been taken the sale was liable to be set aside. It was also pleaded that the consideration for the sale was wholly inadequate and indeed the consideration shown in the sale- deed was fictitious and that the execution of the sale-deed was an imprudent act on behalf of the second defendant. THE plaintiff further pleaded that he was in possession over the land covered by the sale-deed but when the first defendant declared on Aug. 10, 1966 that he had obtained a sale-deed executed by the second defendant in respect of the land and would forcibly take possession thereof, he had no option but to file the suit.

(3.) HAVING heard Mr. V. B. Upadhyaya, for the plaintiff-appellant and Mr. R. N. Singh, learned counsel for the defendant-respondents, I am satisfied that the finding of the trial court that the plaintiff appellant was not the adopted son of Jagtamba Singh, the second defendant-respondent, though on a question of fact, is vitiated by errors of law; and consequently the judgment of the lower appellate court is liable to be set aside.