Allahabad High Court
Sri Prem Shankar Tewari And 7 Others vs Sri Devendra Nath Tewari Alias Natwar ... on 13 February, 2020
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 53 Case :- SECOND APPEAL No. - 309 of 2018 Appellant :- Sri Prem Shankar Tewari And 7 Others Respondent :- Sri Devendra Nath Tewari Alias Natwar Tiwari And 7 Others Counsel for Appellant :- Akhileshwar Singh,Ashutosh Srivastava Counsel for Respondent :- Hawaldar Ram Verma Hon'ble Vivek Agarwal,J.
Heard Sri Ashutosh Srivastava, learned counsel for the appellants and Sri Hawaldar Ram Verma, learned counsel for the respondents.
This second appeal has been filed by the defendants against the judgment and decree dated 05.12.2017 passed by Additional District Judge/Special Judge (E.C. Act), Ballia in Civil Appeal No. 74 of 2010 (Prem Shanker Tewari and others vs. Devendra Nath Tewari and others) arising out of judgment and decree dated 17.09.2010 passed by learned Civil Judge (Junior Division) East, Ballia in Original Suit No. 387 of 2006 between Devendra Nath Tewari and others- plaintiff and Prem Shankar Tewari and others- defendants.
Dispute is in regard to plot no. 180/1. Plaintiff filed a suit for cancellation of the sale deed as was executed by one Ram Sukh Tewari in favour of the defendants on the ground that in family settlement dated 11.04.1988, partition deed was prepared in regard to the properties contained in plot no. 64 measuring 41 dismil, plot no. 176 measuring 35 dismil, plot no. 178 measuring 18 dismil and plot no. 180 measuring 14 dismil. The case of the plaintiff was that Ram Sukh Tewari who was given 9 dismil of land out of 18 dismil of land contained in plot no. 178 sold the land out of survey no. 180 as is apparent from the sale deed dated 13.08.2002. Accordingly, he prayed that since land contained in plot no. 180 measuring 14 dismil has come in his share, therefore, the sale deed executed by Ram Sukh Tewari be cancelled.
Learned Trial Court decreed the suit and when appeal was filed by the defendant-purchaser, then that appeal too was dismissed by the learned First Appellate Court.
Sri Srivastava submits that as per the map drawn in the family settlement contained in annexure-6, 18 dismil of land is also contained in survey/plot no. 180 and total area of plot no. 180 was 36 dismil out of which plaintiff was given only 14 dismil of area and therefore, there is no illegality in the sale of 9 dismil of land which has come in share of Ram Sukh Tewari out of plot no. 180.
He also submits that as per the oral testimony of the plaintiff, he has admitted that Ram Sukh Tewari had sold land as was given in the share of Ram Sukh Tewari. Reading these two pieces of evidence, it is submitted that suit has been wrongly decreed and the first appeal has been wrongly disallowed.
Sri Hawaldar Ram Verma, on the other hand, submits that it is apparent from the partition deed/family settlement though it does not contain signatures of the plaintiff, but was produced by the plaintiff after obtaining certified copy from some pending court proceedings and which has been admitted by the learned Trial Court in terms of the provisions contained in Section 65 (b) of the Evidence Act that there is a prima facie manipulation in annexure-6 as has been produced by the appellant. He has read the writing on first page of this agreement in which it is clearly mentioned in the fifth line that partition was affected in relation to plot no. 64 measuring 41 dismil, plot no. 176 measuring 35 dismil, plot no. 178 measuring 18 dismil and plot no. 180 measuring 14 dismil. Thereafter, on third page of this partition deed, it is clearly mentioned that plot no. 180 has been given to Devendra Nath Tewari @ Natwar son of Late Sri Ganga Prasad Tewari (plaintiff). Similarly, out of plot no. 178 measuring 18 dismil, 9 dismil of land was given to Ram Sukh Tewari and another 9 dismil of land to Ram Pratap Tewari.
Out of plot no. 176 measuring 35 dismil, land was divided in equal proportion between Tribhuwan Nath Tripathi, Ramanugrah Tewari and Triveni Prasad Tripathi in equal share. Out of land contained in plot no. 64 measuring 41 dismil, it is mentioned that on the western end of the land, Rameshwar Tewari will have 1/7th portion in 108 dismil and thereafter, Devendra Nath Tewari @ Natwar will have 1/7th portion in addition to plot no. 180. Similarly, Ram Sukh Tewari will have 1/7th portion in 108 dismil in addition to what was given to him out of plot no. 178. Same is the situation of Ram Pratap Tewari who was given share in plot no. 178 and thereafter there is mention of Ramanugrah Tewari, Tribhuwan Nath Tripathi and Triveni Prasad Tripathi as regards to their share in plot no. 64.
Thus, reading this partition deed, it is apparent that Ram Sukh Tewari was not given any share in plot no. 180. Thus, manipulation in the partition deed, photocopy of which has been produced along with this second appeal as annexure-6 is glaring and not only it needs to be discarded but liberty be granted to the plaintiff-respondent to initiate appropriate proceedings against Ram Sukh Tewari and his successors who have filed this appeal for manipulating with the Court documents.
Placing reliance on such documents, it is submitted that learned Trial Court has rightly decreed the suit for cancellation of sale deed inasmuch as Ram Sukh Tewari was never given any share in plot no. 180.
In view of such facts which have come on record, appellant have failed to make out any case rather they are guilty of misrepresenting the facts before the Court on the basis of manipulated and concocted documents. They have been apparently guilty of manipulating the map, reproduced on page 2 of the family settlement contained in annexure-6 for which plaintiff-respondents will be free to initiate criminal proceedings against the appellants, if so advised. However, on merits there is no substance in the appeal and that deserves to be dismissed and is dismissed. However, this Court in normal circumstances would not have proceeded beyond this stage, but looking to the nature of the manipulation which is apparent on the face of it, appeal is dismissed with cost of Rs. 10,000/- which is to be recovered from the appellants by the Registry as arrears of land revenue and to be deposited in High Court Legal Services Authority, if such cost is not paid by the appellants within 15 days from today.
Order Date :- 13.2.2020 Vikram/-