Important point
Where both the trial Court and the first appellate Court gave a con­current finding on the basis of the pleadings that the defendants proved that the plaintiff played fraud upon the defendant and obtained a sale deed in the guise of mortgage deed, the High Court was not justified in reversing the finding holding that fraud alleged was not pleaded and proved in terms of Order IV, Rule C.P.C.

Judgment

Santosh Hegde, J.-This appeal is preferred against the judgment and decree made by the High Court of Judicature at Allahabad dated 7th October, 1980 in Second Appeal No. 896 of 1972.

2. The original plaintiff (since deceased and now represented by legal representatives) had filed a suit for ejectment and recovery of arears of rent regarding House No. 124, Madhwapur, Allahabad, against the original respondents. The case of the plaintiff was that one Smt. Parago was the owner of the house in question and she sold the same on 8th of April, 1958 for a consideration of Rs. 1500/- which sale deed is registered and exhibited in the suit as Ex. 10. It is further contended in the plaint that she also executed a rent note Ex. 3 in favour of plaintiff and she occupied the said house from the date of the sale deed as a tenant on a monthly rent of Rs. 45/-. On the same day, a document of re-conveyance of the very same house was executed by the plaintiff in favour of Smt. Parago which was to take place within a period of 5 years. The said document was produced as Ex. 7.

3. The suit in question came to be filed after the death of Smt. Parago which occurred on 5.2.1964. The original first defendant in the suit was Sukhdei who claimed to be in possession of the house, being a close relative of Smt. Parago. Defendant No. 2 contested the suit on the ground that he was brought up by Smt. Parago like a child and who had gifted the said house to him and since then he is in occupation as an owner thereof. Deendant No. 3 did not contest the suit. Defendant No. 4 contested the suit on the ground that he was the tenant of Smt. Parago. Defendant Nos. 1 and 2 further contended that Smt. Parago was an illiterate woman and was not earthly wise and she having been in need of Rs. 1500/- to renovate her house had borrowed the said sum of money from the plaintiff and as a security for the payment of the said loan, she had executed a mortgage deed in favour of the plaintiff which was in fact a mortgage deed, but the plaintiff being a lawyer and in a dominant position, had taken undue advantage of the ignorance of Smt. Parago and obtained her signatures on a document which he now claims to be the sale-deed. The said defendants contended that the document in question, apart from being obtained by fraud, is in fact only a mortgage deed.

4. This suit had a chequered career. It was earlier decreed by the Trial Court and on appeal, the samewas remanded. It was decreed for the second time by the trial Court and was again remanded by the Appellate Court. However, in the second judgment of the appellate court i.e. in C.A. No. 143/67, the said court permitted the defendants to amend their written statement by giving more particulars of fraud so as to bring the pleadings of the defendants in conformity with the requirement of Order VI, Rule 4 of the Civil Procedure Code. This order allowing the amendment has since become final. In view of the fact that in the impugned judgment of the High Court, which is primarily based on the insufficiency of pleadings of fraud in the written statement of the defendants, it is necessary for us to extract the relevant portion of the amended written statement which is as follows:-

“That for purposes of repairs and reconstruction of the house the said Mst. Parago had to raise a loan for Rs. 1500/-. The plaintiff a shrewd lawyer and money leader agreed to advance the loan desired against hypothecation of her house in suit which is no less valued at less than Rs. 10,000/-. It was clearly given out by the plaintiff to the said Mst. Parago a woman simple and honest with no clever wits and proper understanding that no sooner than the advanced loan will be repaid with nominal gain of interest her house shall stand released. Believing the words of the plaintiff as also her lawyer as stated above Mst. Parago took the loan of Rs. 1500/- against the security of her house on a clear understanding that she was mortgaging the house for a sum of Rs.