- (1.) A. B. Srivastava, J. This appeal by plaintiff under Section 100 of the Code of Civil Procedure is directed against a judg ment and decree dated 27-11-1987 of the Civil Judge, Ballia in a First Appeal, whereby setting aside the judgment and decree of the trial court he dismissed the suit of the plaintiff for cancellation of sale-deed.
(2.) SUIT No. 310 of 1992 was filed by plaintiff Ujagir Pandey against defendant-respondents Keshav Prasad and Ambika Singh, for cancellation of a sale-deed dated 18-4-1972. The original plaintiff Ujagir Pan dey having died during the pendency of the First Appeal, the present appellant Ami Chand claiming on the basis of a will, was brought on record as his legal repre sentative. The plaint allegations in the suit filed by late Ujagir Pandey were to the effect that he is the tenure- holder of the plots in suit, with a total area of 1. 65 acres in village Shankerpur,. 20 acres in village Sawan and. 90 acres in Nadauli, Pargana Kopachit Garvi, district Ballia. The defendant No. 2 Ambika Singh a resident of village Nadauli, with an evil eye on these plots, got a sale deed dated 18-4-1972 executed by an im-poster in favour of his son Keshav Prasad, defendant No. 1. The plaintiff Ujagir Pan dey neither executed nor put his signatures or thumb impression on the said sale deed, which is a fictitious document, he did not go to the Sub-Registrar's Office to get the sale deed executed nor appeared before the Sub-Registrar to acknowledge the same. No con sideration for the sale-deed was paid to him, no witness signed the same in his presence and the defendant No. 1, is employed in Armed Force was even not present at the time of the alleged sale-deed. The plaintiff continued to be in possession despite the sale-deed but since it was likely to cast cloud on his title the suit with a relief of cancella tion was filed. The suit was contested by means of a written statement filed by the defendant No. 2 Ambika Singh who denied the allegations in the plaint and pleaded that Ujagir Pandey of his own free will executed the impugned sale-deed, for a sum of Rs. 12,000 and Rs. 4,000 had been paid to him by way of ad vance at the time the transaction was negotiated and the balance Rs. 8,000 was paid to him at his home on 18. 4. 1972 whereafter he came to the Sub-Registrar's office at Rasra and in the presence of wit nesses Lallan Pandey and Veera Lekhpal, executed the sale-deed by putting his thumb impressions, he also affirmed these facts before the Sub-Registrar at the time of registration, the sale-deed is not a forged document or has been executed by any imposter. The plaintiff has no issues and most ly lives in his 'nanihal', and has no means of cultivation. Possession in pursuance of the sale-deed has been delivered to the vendee. Before the trial court both the parties led oral evidence. A certified copy of the im pugned sale-deed was produced by the plaintiff. The defendant did not produce the sale-deed on the plea of the same haying been lost. The specimen thumb impressions of Ujagir Pandey taken in the court were got compared with the thumb impressions of the vendor on the Register No. 8 maintained in the office of the Sub-Registrar, by their respective experts, by the parties, the expert on behalf of the defendant M. N. Singh, D. W. 5, opining that the thumb impression on the Register No. 8, tallied with the specimen left thumb impression of Ujagir Pandey, whereas the expert on behalf of the plaintiff Madan Mohan Kakkar, D. W. 3 opined otherwise. The documents were also sent for comparison to the Government Expert at Lucknow by the trial court who in their report dated 6-11-1978 submitted that the disputed thumb impression on Register No. 8 is not clear enough for comparison. On behalf of the plaintiff, the original plaintiff Ujagir Pandey (P. W. 1) Fateh Bahadur Singh (P. W. 2) were ex amined as witnesses of fact on the questions in issue. P. W 4 Jagar Kumar, a photog rapher, was examined to prove the negatives and the positive photographs and specimen thumb impressions utilised by the Expert Madan Mohan Kakkar.
(3.) ON behalf of the other side defen dant Ambika Singh (D. W 1), Lallan Pandey (D. W 2), Shri Bhagwan Pandey (D. W. 3), Surya Deo Pandey (D. W 4) were examined as witnesses of fact. Jagat Kumar the shotographer was again examined as D-W 6 to prove the negatives and the positive photographs utilised by the defendant- Ex pert M. N; Singh. Holding that the sale-deed in ques tion has not been executed by Ujagir Pandey and did not bear his thumb impressions and the payment of consideration for the sale deed is also not proved, the learned Munsif who tried the suit decreed the same for can cellation of the said document. On appeal being preferred by the defendant, the learned Civil Judge reversing the said find ing, held the execution of the sale-deed in-question to have been duly executed by Ujagir Pandey, for consideration. He ac cordingly set aside the judgment and decree of the trial court and dismissed the suit.;