Uttarakhand High Court
Gopal Singh vs Lavendra Singh And Others on 17 July, 2026
Author: Ravindra Maithani
Bench: Ravindra Maithani
UKHC010055922023
2023:UHC:9538
HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Appeal No. 145 of 2023
Gopal Singh ........Appellant
Versus
Lavendra Singh and others ....Respondents
Present:-
Mr. Neeraj Garg, Advocate for the appellant.
JUDGMENT
Hon’ble Ravindra Maithani, J. (Oral)
By means of instant second appeal, the appellant
challenges the following judgment and decree:-
(i) Judgment and decree dated 05.08.2022, passed
in Civil Suit No.76 of 2015, Gopal Singh Vs.
Lavendra Singh and others (“the suit”) by the
court of 1st Additional Civil Judge, Kashipur,
District Udham Singh Nagar. By it, the suit filed
by the appellant for cancellation of sale deed
dated 30.01.2016 in favour of the respondent
nos. 1 and 2 has been dismissed; and
(ii) Judgment and decree dated 27.09.2023, passed
in Civil Appeal No. 42 of 2022, Gopal Singh Vs.
Lavendra Singh and others, passed by the court
of 2nd Additional Civil Judge, Kashipur, District
Udham Singh Nagar (” the appeal”).
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2. Heard learned counsel for the appellant and perused
the record.
3. The appellant filed the suit on the ground that the
respondent no.1 expressed willingness to purchase a land from the
appellant in the month of January, 2016. The land was mortgaged
with the Bank. It was agreed that the respondent no.1 shall repay
the loan and shall also pay Rs.10 lakh as consideration for the sale
of the land. Accordingly, on 30.01.2016, a sale deed was executed.
The sale consideration was given through cheques. But, when
presented, the cheques were dishonoured. Suit for cancellation of
the sale deed was filed on the following grounds:-
(i) The cheques given a consideration were not
honoured by the Bank; and
(ii) The respondent no.1 did not repay the loan.
4. The respondents filed a joint written statement and
denied the allegations. According to the respondents, it was not a
condition that they would repay the bank loan. In fact, according to
the respondents, they were never told about any bank loan and as
such, it was not written in the sale deed.
5. Based on the pleadings of the parties, five issues were
framed. Parties led their evidence. Having considered the evidence
and material on record, the suit was dismissed on 05.08.2022, by
the trial court and the appeal against it was also dismissed.
6. Learned counsel for the appellant submits that there
are substantial questions of law involved in this appeal. He submits
that to that extent, the impugned judgment and decree are valid
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that in case, sufficient consideration is not paid, the suit for
cancellation of sale deed may not lie and for recovery of remaining
amount suit may lie. But, he submits that the instant case is quite
distinct. It is argued that in the sale deed, two cheques of the year
2014 were given, which is a fraud and this aspect has not been
considered by the trial court. He submits that though the appellate
court considered this aspect, but finding is not in accordance with
law.
7. At this stage only, the Court wanted to know from
learned counsel for the appellant as to whether, it has been the
pleaded case of the appellant that the cheques that were given for
sale consideration, were of the year 2014 and they were defrauded
by the respondents. He could not indicate any pleading, as such.
8. Fraud is a question of fact. Unless pleaded, at this
stage, for the first time, such question cannot be raised. Moreover,
execution of sale deed is admitted to the appellant. How the
appellant was defrauded, when the cheques were given to him and
were also recorded in the sale deed.
9. The trial court relied on the judgments of the Hon’ble
Supreme Court in the cases of Kaliaperumal Vs. Rajagopal and
another, (2009) 4 SCC 193 and Vidhyadhar Vs. Manikrao and
another, (1999) 3 SCC 573 and other cases to record its finding
which has been upheld in the judgment of the appeal.
10. As stated, the suit for cancellation of sale deed was
filed on two grounds; firstly, that the cheques as given as the
consideration were not honoured, which means partial
consideration was paid; and secondly, that the respondents did not
pay the bank loan. On it, it has been the case of the respondents
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that they were never informed by the appellant that the land is
mortgaged and there is any bank loan on it.
11. In fact, the Court further requested learned counsel for
the appellant to indicate as to whether any averment with regard to
the mortgage of the land with the bank is made in the sale deed?
He could not indicate anything. In fact, it is not there.
12. The question that remains is on the partial payment of
sale consideration.
13. In the case of Kaliaperumal (supra), the Hon’ble
Supreme Court discussed this aspect and held that payment of
entire price is not a condition precedent for completion of the sale.
In para 17 of the judgment, the Hon’ble Supreme Court observed as
follows:-
“17. It is now well settled that payment of entire price
is not a condition precedent for completion of the sale by
passing of title, as Section 54 of the Transfer of Property Act,
1882 (“the Act”, for short) defines “sale” as “a transfer of
ownership in exchange for a price paid or promised or part-
paid and part-promised”. If the intention of parties was that
title should pass on execution and registration, title would
pass to the purchaser even if the sale price or part thereof is
not paid. In the event of non-payment of price (or balance
price as the case may be) thereafter, the remedy of the
vendor is only to sue for the balance price. He cannot avoid
the sale. He is, however, entitled to a charge upon the
property for the unpaid part of the sale price where the
ownership of the property has passed to the buyer before
payment of the entire price, under Section 55(4)(b) of the
Act.”
14. In the case of Vidhyadhar (supra) also, this aspect has
also been dealt with by the Hon’ble Supreme Court and in para 36
of the judgment, observed as follows:-
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“36. The definition indicates that in order to
constitute a sale, there must be a transfer of ownership from
one person to another, i.e., transfer of all rights and
interests in the properties which are possessed by that
person are transferred by him to another person. The
transferor cannot retain any part of his interest or right in
that property or else it would not be a sale. The definition
further says that the transfer of ownership has to be for a
“price paid or promised or part-paid and part-promised”.
Price thus constitutes an essential ingredient of the
transaction of sale. The words “price paid or promised or
part-paid and part-promised” indicate that actual payment
of the whole of the price at the time of the execution of sale
deed is not a sine qua non to the completion of the sale.
Even if the whole of the price is not paid but the document
is executed and thereafter registered, if the property is of the
value of more than Rs 100, the sale would be complete.”
15. The courts below have rightly held that merely because
the cheques were dishonoured, the sale deed may not be cancelled.
There is no such question of law, involved in this second appeal.
Therefore, it does not merit acceptance. Accordingly, the second
appeal deserves to be dismissed at the stage of admission itself.
16. The second appeal is dismissed in limine.
(Ravindra Maithani, J.)
17.07.2026
Jitendra
