S.N.Srivastava, J. - (1.) This second appeal has been preferred by the appellants against concurrent findings of the two courts below contained in judgment and decree dated 29.5.1982 and 8.12.1982 respectively.
(2.) Facts beyond the pale of dispute are that Plaintiff and defendants are co-tenure holders of the plots in dispute i.e. plot Nos. 169 and 170 each to the extent of one half share and both the parties had a bunch of 64 trees each in their respective shares. According to the plaint allegations, the plaintiffs being in straitened circumstances, obtained some money as loan from defendants and mortgaged the grove in lieu of money. It is further alleged that they never sold off the land but defendants illegally and fraudulently manipulated the same to one of sale of grove land while the fact remains that no sale deed for sale of land was ever executed by plaintiffs. It is in this backdrop that the plaintiffs instituted suit for the reliefs of cancellation of sale deed and for permanent injunction in respect of plot no. 169 and 170 situated in village Bandi Patti Pargana Kewai district: Allahabad. The defendants in the written statement repudiated the plaint allegations and averred that the plaintiffs had executed sale deed in favour of defendants after taking sale consideration and there is no fraud in execution of sale deed which was executed by plaintiff in accordance with law and hence the suit is liable to be dismissed.
(3.) At the stage of admission of appeal, following substantial questions of law were framed for determination. 1. Whether the tower appellate court was justified in not considering the plea of Section 164 of the U.P.Z.A. & L.R. Act which makes the suit of the plaintiff not maintainable? 2. Whether the claim of the plaintiffs is barred by Section 49 of the U.P. Consolidation of Holdings Act? 3. Whether the finding of the lower appellate court on the question of fraud is vitiated on account of placing the burden on the defendants to demolish the theory of fraud set up by the plaintiffs?;