Sibghat Ullah Khan, J. - (1.) HEARD Learned Counsel for the parties. This is plaintiff's second appeal arising out of O.S. No. 525 of 1995 which was dismissed on 26.05.2010 by Civil Judge (Junior Division), Etawah. Against the said decree plaintiff -appellant filed Civil Appeal No. 36 of 2010 which was dismissed by Additional District Judge, Court No. 8, Etawah on 08.02.2011 hence this second appeal.
(2.) THE suit was filed for cancellation of sale deed dated 30.06.1992 executed by Chameli Devi widow of Bhadai in favour of defendants -respondents. Original plaintiff Lallu (since deceased and survived by his son Man Singh -appellant) and Bhadai were real brothers. The case of the original plaintiff was that Bhadai died issueless 40 years before and after his death his widow Chameli Devi started residing with him (plaintiff) as wife (by doing garonna). Property in dispute is agricultural land comprised in plot nos.1560 area 0.97 acre, 1397 area 1.15 acre, 1585 area 0.74 acre and 1591 area 1.14 acre total four plots area 4.27 acre. Both the brothers, plaintiff and Bhadai were co -bhumidhars of the entire land. According to the plaintiff after death of Bhadai plaintiff became the bhumidhar of the entire land as Bhadai died issueless and his widow remarried with him. However, the name of Chameli Devi continued in the revenue records along with the plaintiff. The sale deed was executed by Chameli Devi in respect of half share in the above agricultural property in favour of defendants -respondents for Rs. 70,000/ -. This appeal was admitted on four substantial questions of law on 25.03.2011. The said order is quoted below: - Heard Sri Anil Sharma, Learned Counsel appearing for appellants and Sri Ramesh Upadhyaya, Learned Counsel appearing for respondents. The substantial questions of law involved in the present second appeal are - I. Whether on Issue No. 3 once the trial court has recorded a finding that civil court has no jurisdiction in view of the nature of the property, to decide the suit on merits ? II. Whether the Appellate Court on an appeal filed by plaintiff -appellant was having any jurisdiction after holding that suit was maintainable before the Civil Court can decide the appeal on merits? III. Whether on such ground plaintiff can be non -suited without remanding the matter to the Trial Court ? IV. Whether the defendant failed to prove regarding payment of consideration the sale deed becomes void under Section 25 of the Contract Act ? Admit. Issue Notice. Respondents are restrained from alienating or changing the nature of land in dispute.
(3.) CHAMELI Devi was not impleaded as defendant in the suit. It was also pleaded by plaintiff that sale consideration was not paid to Chameli Devi. Plaintiff Man Singh in his oral statement stated that Chameli Devi had died in 1990. However, in the plaint it was not mentioned that Chameli Devi had died.;