Gyan Chand vs Balkrishna Shrivastava and another

R.S. Garg, J.—Parties are heard on the question of admission.

Shri Agrawal, learned counsel for the appellant firstly argued that as there arc over writings in the sale-deed Ex. P-3, the First appellate Court was not justified in placing its reliance upon the same.

In my opinion, the acceptance or rejection of the genuineness of a document is well within the jurisdiction of the Trial Court or the Appellate Court. If the Appellate Court after reappreciating the evidence, feels necessary to place reliance upon a document, then it acts within its jurisdiction. Unless it is shown that the finding is perverse, the second Appellate Court would have no jurisdiction to interfere with the said finding. In the present case, I do not find any perversing in the said finding.

Shri Agrawal next submitted that as he is a bona fide purchaser for value/consideration, the suit for possession would not lie against him. The argument is misconceived. Present is not a case of purchase by a person who entered into a subsequent agreement without notice of the first agreement and purchased property for consideration. The present is a case where the original owner Ganga Bai, according to the findings of the Lower Court, had already sold the property in favour of the plaintiff and subsequent to that, the present appellant/defendant had purchased the property from said Ganga Bai. When Ganga Bai had already sold her right, title and interest in the said properly in favour of the present plaintiff, then she was left with no authority or title to convey the same in favour of the present defendant. When a vendor has already sold the property in favour of some one, then the very same person cannot sell the same property again, because he has no authority to sell or alienate the property.

It was last contended that after the death of Ganga Bai as her legal representatives were not brought on record, the suit had abated in its entirety. After taking me to the plaint allegations especially the prayer clause, the learned counsel for the appellant submits that as the prayer was inseparable and in absence of Ganga Bai, an executable positive decree could not be granted in favour of the respondent/plaintiff, the suit ought to have been dismissed. A perusal of the plaint and its fair reading would show that Ganga Bai was joined as a formal party to the suit. In fact, grievance of the present plaintiff was against the present defendant/appellant who had dispossessed him under the strength and cover of the subsequent sale-deed. The plaintiff had prayed for injunction against Ganga Bai and if her legal representatives are not brought on record, the suit would not abate, but the cause of action for seeking injunction would not survive against Ganga Bai. Unless a plaintiff comes and says that the legal representatives of the deceased are also interfering with the possession, it is not necessary for the plaintiff to substitute the legal representatives of a deceased defendant.

After hearing the learned counsel for the appellant I do not find involvement of any substantial question of law in this appeal. It is accordingly dismissed.

Second Appeal dismissed.