AWDHESH KUMAR Vs. RAJENDRA KUMAR

JUDGEMENT

(1.) Heard Sri Adnan Ahmad, learned counsel for the appellant and Sri Alok Srivastava, learned counsel for the respondent.

(2.) This is an appeal under Order 43 Rule 1 (u) of the Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C.") against the judgment and order dated 05th October, 2018 passed by learned Sixth Additional District Judge, Unnao, in Civil Appeal No.02 of 2016, whereby the appeal filed by the respondent was allowed.

(3.) Succinctly stating the facts of the present case as borne out from the record are that the respondent herein (plaintiff) filed a suit for cancellation of sale deed, which was registered on 22nd November, 2007, in respect of plot No.210, ad-measuring one bigha six biswa situated at Village Newlapur, Pargana Bangarmau, Tehsil Safipur, District Unnao bearing Civil Case R.S. No.76 of 2008. In the plaint, it was stated by plaintiff that he was owner of the half portion of plot No.208, ad-measuring 0.658 hec. situated at Village Newlapur, Pargana Bangarmau, Tehsil Safipur, District Unnao and the other half portion of the said plot was owned by his mother, namely, Smt. Somwati; the plaintiff sold the half portion of said plot No.208 to the defendant and executed a registered sale deed on 05.03.2004 for a consideration of Rs.80,000/- (rupees eighty thousand only), which was duly registered in the office of Sub-Registrar, Safipur, District Unnao; after execution of the said sale deed, in the month of July, 2007, the defendant stated that in the sale deed 05.03.2004, the boundaries of plot No.208 have been wrongly recorded and it needs to be corrected; the plaintiff agreed to the same, the defendant prepared a document to get the boundaries corrected and after one month, the defendant (appellant) told to the plaintiff that he should return the consideration amount of Rs.80,000/- and he is unwilling to buy the said plot No.208; the plaintiff was ready to return the consideration amount and proposed to the defendant that he would have to execute back the sale deed which he had executed in favour of the defendant; the defendant refused to bear the expenses of the stamp duty and registration fee; later on, when some people intervened, it was agreed that the defendant would execute a sale deed and the plaintiff would return the consideration amount of Rs.80,000/- and bear all other expenses of stamp duty and registration fee. Both the parties went to the office of Sub-Registrar, Safipur, District Unnao on 22.11.2007, since everything was decided and the sale deed was to be executed, the plaintiff returned the consideration amount of Rs.80,000/- to the defendant, in the presence of the witnesses, for the said half portion of plot No.208 ad-measuring 0.658 hec.; the plaintiff signed the document and put his thumb impression. It was alleged that the plaintiff put the thumb impression and signatures under the impression that the sale deed was being executed as per settlement; for execution of sale deed both the parties went to the office of Sub-Registrar, thumb impression of the plaintiff was taken and registration fee was paid by the plaintiff, the defendant went away from the office of Sub-Registrar on the excuse that he was going to toilet, the plaintiff waited for the defendant but the defendant did not turn up, the plaintiff got the information at the end of day that defendant got executed a sale deed fraudulently. It was also alleged that the defendant succeeded in getting the sale deed in respect of plot No.210 ad-measuring two bigha four biswa out of total area of 2.056 hec. situated at Village Newlapur, Pargana Bangarmau, Tehsil Safipur, District Unnao instead of executing back the sale deed in respect of plot No.208. It was also alleged that the plaintiff did not receive the consideration in respect of plot No.210; plot No.210 was a valuable piece of land situated at Lucknow Bangurmau Road and value of the plot No.210 is approximately Rs.4,00,000/- (rupees four lacs) per bigha; the sale deed was got executed in respect of plot No.210 without payment of consideration and by playing fraud on the plaintiff. Hence, the respondent/plaintiff filed a suit for cancellation of sale deed in respect of plot No.210 ad-measuring as one bigha six biswa registered on 22.11.2007 with the office of Sub-Registrar, Safipur, District-Unnao.