Ali Hussain (D) Thr. Lrs. vs Rabiya

2. The facts in brief are that the first respondent­plaintiff filed a suit against the defendant­appellant for cancellation of sale deed dated 10th May, 1995 registered in Sub­Registrar Office, Jagadari, Roorkee on 22nd May, 1995. According to the plaint, the plaintiff­first respondent Smt. Rabiya inherited the property 1 shown in the schedule of property indicated at the foot of the plaint, from her father late Sri Ahamad and is the owner and in possession of the suit property in question. It was further averred that the impleaded defendants in the suit (defendant nos.1 and 3, Ali Hussain and Abdul Hassan) are the sons of her great grandfather and impleaded defendant no. 2 Smt. Raquiba, is the wife of Ali Hussain (impleaded defendant no. 1).

5. Both the parties adduced their oral as well as documentary evidence in support of their defence. The trial Judge, after hearing the parties and considering the evidence on record, dismissed the suit filed by the plaintiff­first respondent vide 3 judgment and decree dated 19th January, 2001 which was further assailed at the instance of the plaintiff­first respondent in first appeal which was dismissed vide judgment and decree dated 27 th August, 2001, further assailed in second appeal before the High Court of Uttarakhand.

13. The plaintiff­first respondent filed a Suit No. 155 of 1996 before the Civil Judge (J.D.), Roorkee. A copy of the plaint has been placed on record (Annexure P/1). On perusal of the plaint, it reveals that it has nowhere been pleaded that the plaintiff­first respondent is a pardanasheen illiterate lady. In the ordinary course the burden of proof rest, on who attack. On the contrary, it was pleaded in the plaint that defendant nos.1 and 3 are the sons of her uncle Mangta and defendant no. 2 is the wife of defendant no. 1 and they hatched a conspiracy to grab the land of the plaintiff­first respondent and with connivance, the power of attorney was prepared & registered on 25 th April, 1995 in the registry office, in the name of the plaintiff and pursuant thereto, suit land was sold by a registered sale deed. On the basis of pleadings on record, the above­mentioned eight issues were framed on which both the parties have adduced oral and documentary evidence and the trial Judge, after considering the evidence, dismissed the suit vide judgment and decree dated 19 th January, 2001 and that came to be affirmed on dismissal of the appeal filed at the instance of the plaintiff­first respondent dated 27th August, 2001. It reveals from the record that without there being any factual foundation, the High Court, while admitting the 8 appeal, framed two substantial questions of law in reference to which there was no supporting pleadings on record.

15. After we have heard the parties, we are of the view that the High Court has committed a manifest apparent error in reversing the concurrent finding of the two Courts below and on this score the impugned judgment is not sustainable.

16. Consequently, the appeal succeeds and accordingly allowed. The judgment of the High Court in second appeal dated 18 th August, 2008 is hereby set aside. No costs.

17. Pending application(s), if any, stand disposed of.