2006 ARC 4 576 . 2007 AWC 2 1466 . 2007 AIR ALL 70 . 2006 SCC ONLINE ALL 893 .

2007 AIR ALL 70 . 2007 ALR 66 441 . 2007 ALL LJ 1 556 . 2007 AIHC 963 . 2007 AIR
ALD 70 .

Markande v. Sudama Chaubey & Ors.

Allahabad High Court (Oct 11, 2006)

CASE NO.

S.A No. 829 of 2006*

JUDGES

Umeshwar Pandey, J.

SUMMARY

Facts

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
practising fraud upon the plaintiff. 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.
Issues

Whether the lower appellate Court has dealt upon the aspect of the matter and
recorded reasonings to do away with the findings recorded by the trial Court?

Whether the decree for cancellation of the sale deed as passed by the lower
appellate Court is justified and unassailable?

Whether the appeal has any merit?

Analysis

The 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
Courts judgment in this second appeal and since the plaintiffs suit, which is almost

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uncontested, the decree for cancellation of the sale deed as passed by the said Court,
appears to be wholly justified and unassailable.
Conclusion

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

1. Heard learned counsel for the parties.

2. 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
practising 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 (sic) 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 ex parte 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.
3. 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

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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.
4. 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 v .
Purushottam Tiwari (Deceased) By Lrs., (2001) 3 SCC 179 : AIR 2001 SC 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.
5. 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 uncontroverted 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.

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6. 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.
7. 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.
8. In fact, there is no occasion for this Court to actually interfere into the appellate
Courts judgment in this second appeal and since the plaintiffs 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.
9. The appeal does not have any merit and is accordingly dismissed at the admission
stage.
10. Appeal dismissed.

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