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Markande v. Sudama Chaubey & Others - SECOND APPEAL No. 829 of 2006 [2006] RD-AH 17544 (11 October 2006)


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Court No. 24

Second Appeal No. 829 of 2006

Markande Vs. Sudama Chaubey & others

Hon'ble Umeshwar Pandey, J.

Heard learned counsel for the parties.

The plaintiff respondent filed a suit for cancellation of sale deed in which after service of the summons, the appellant defendant did not come to contest and no written statement was filed. The cancellation was sought on the ground that under undue influence and misrepresentation the impugned sale deed was got executed after practicing fraud upon the plaintiff. The pleadings are to the effect that the parties are from the same family and since the plaintiff had been left all alone after the death of his wife and the employment of his son in Indian Army, he came in very close association with the defendant and a sort of dependence of him upon the defendant appellant. Accordingly, his farming job was also taken over by the defendant and in that context at one point of time the power of attorney was to be executed by the plaintiff in favour of the defendant. On that pretext, the plaintiff was taken to the Sub-Registrar where he was given to understand that such power of attorney would be executed, but by misusing the confidence  reposed by the plaintiff in them, the defendants got the impugned sale deed in respect of disputed property executed, in their favour. This fact came to the knowledge of the plaintiff after a lapse of over eight years when some unauthorised activities were carried out upon the property by the defendants. Immediately thereafter on having acquired the knowledge of this fraudulent execution of the sale deed, the present suit was filed. Since the defendants were not contesting the suit, it was directed to proceed exparte and the plaintiff in support of his case had filed his affidavit to prove his assertions made in the pleadings.

The trial court on having perused the entire material available on record was of the view that since the plaintiff had not succeeded in rebutting the presumption of correctness of a registered document, the sale deed in question so executed and registered, cannot be treated to be an instrument obtained through commission of fraud and misrepresentation, as alleged in the pleadings. Accordingly, after having discussed the implication of Section 68 of the Indian Evidence Act, the trial court had dismissed the suit.

Against the aforesaid judgment of the trial court, the plaintiff-respondent went in appeal before the lower appellate court. After service of notice of the appeal, the appellant defendant did put in appearance in that court but did not seek any opportunity to contest the suit by filing counter pleadings in the form of written statement. The court below therefore, after hearing the counsel for the parties, was of the view that since the facts of commission of fraud and misrepresentation for obtaining the impugned sale deed were not disputed by any pleading coming from the defendants, it found that the factual assertions made in the plaint were duly proved from the evidence of the plaintiff, as filed on record. The lower appellate court also found that the affidavit filed on record did establish the factual assertions made in the plaint, which were not at all disputed/contested from the other side. Accordingly it found that the plaintiff had succeeded to rebut the presumption of correctness of the registered document and it was duly proved on record that the sale deed in question was obtained by practice of fraud and misrepresentation from the side of the defendant. Accordingly, the findings and consequent conclusion arrived at by the trial court in the present suit  while dismissing the same, was set aside by the lower appellate court and the appeal was allowed. The suit for cancellation of impugned sale deed was also decreed.

Learned counsel for the appellant has tried to emphasise that the lower appellate court has not specifically adverted to the findings recorded by the trial court in respect of the implication of Section 68 of Indian Evidence Act in order to arrive at an otherwise conclusion and therefore in the light of the case law of Santosh Hazari Vs. Purushottam Tiwari, AIR 2001 Supreme Court 965 the appellate judgment is vitiated under law and this is the substantial question of law, which can be formulated in the present  appeal. Learned counsel has further submitted that there is definite failure on the part of the plaintiff to rebut the presumption of correctness of such registered document because the plaintiff did not call either of the two attesting witnesses of the sale deed to prove the fact that the document was got executed by practice of fraud and misrepresentation. He has given due reference to the proviso added to Section 68 of the Indian Evidence Act.

In the first place, it would be in fitness of the things, to mention that the proviso requires the attendance of attesting witnesses in the court to give his evidence in the cases when the disputed instrument is alleged to be a valid document duly and properly executed between the parties. It does not impose any burden upon the parties, which dispute the correctness and validity of such document. The plaintiff respondent in the present case actually challenges the validity of the impugned sale deed and he was not obliged under the aforesaid proviso of Section 68 of Indian Evidence Act to produce the attesting witnesses to rebut the correctness of this document in as much as the challenge made by the plaintiff in the pleadings against the sale deed in question, has been left un-controverted by not filing some counter pleading. Actually law is very clear on this point that if there is certain pleadings made by one party and the same is not controverted or disputed in the pleadings of the other party, the fact asserted in that pleadings should be taken to be correct and no proof for the same is required to be produced in the court. In the present case the plaintiff in-spite of the fact that his pleadings had been left unchallenged from the side of the defendant, did also file the evidence through an affidavit in support of his case and that has been rightly found to be sufficient by the lower appellate court to prove his case.

As regards the second point of argument advanced from the side of the appellant, a perusal of the order of lower appellate court itself shows that without making any specific reference to Section 68 of Indian Evidence Act, it has very much dealt upon that point and has referred to the evidence given from the side of the plaintiff in support of his pleadings.

The court below has actually dealt upon the presumption of correctness of the registered instrument and has rightly found that the evidence given through affidavit is more than sufficient in the circumstances of the case to prove the factum of fraud and misrepresentation, as pleaded in the plaint. This reasoning recorded in the judgment is sufficient to negate and reject the findings recorded by the trial court in the present context. Therefore, it cannot be said that the lower appellate court has not dealt upon that aspect of the matter and has not recorded reasonings as to do away with the findings recorded by the trial court. In fact, there is no occasion for this court to actually interfere into the appellate court's judgment in this second appeal and since the plaintiff's suit, which is almost uncontested, the decree for cancellation of the sale deed as passed by the said court, appears to be wholly justified and unassailable.

The appeal does not have any merit and is accordingly dismissed at the admission stage.  




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