MARKANDE Vs. SUDAMA CHAUDEY

JUDGEMENT

(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 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.