1. This is a second appeal purported to be under Section 100 of Code of Civil Procedure, 1908 challenging the validity and the legality of the judgment, order and decree dated 17.1.2019 passed by the Court of IVth Addl. District Judge, Agra in Civil Appeal No. 47 of 2018, Naval Singh vs. Smt. Radha Dixit, as well as the judgment, order and decree dated 25.2.2017 passed by the Court of Small Causes / Civil Judge, Agra in Original Suit no. 526 of 2010, Naval Singh vs. Smt. Radha Dixit.
2. Briefly stated, facts shorn of unnecessary details are that plaintiff-appellant as per the averments contained in the plaint in Original Suit No. 526 of 2010 instituted before the Court of Civil Judge (Senior Division), Agra being Naval Singh Vs. Smt. Radha Dixit had claimed himself to be the absolute owner and in actual physical possession of demised property being Khasra no. 688 and 672, Rakba 0.023 hect, situate at Sikri (2 hissa), Tehsil Kirawali, district Agra.
3. According to the plaintiff-appellant, the defendant respondent being Smt. Radha Dixit wife of Sri Shanti Swaroop is residing just in front of the plaintiff-appellant. As per the case set up in the plaint, the plaintiff-appellant has alleged that he was in dire need of financial assistance to the tune of Rs.20,000/- for house and family members, accordingly, the plaintiff-appellant approached the husband of defendant-respondent being Sri Shanti Swaroop and he showed his willingness to grant financial assistance to the plaintiff-appellant, provided that a security/ mortgage deed is executed by the plaintiff-appellant in favour of the defendant-respondent. It was, therefore, settled between the plaintiff-appellant on the one hand and defendant-respondent on the other hand that a mortgage/ security deed will be executed for grant of financial assistance to the tune of Rs.20,000/-, and thus, the plaintiff-appellant, defendant-respondent and her husband went to Tehsil-Kirawali on 16.8.2008 for the purposes of registration of security / mortgage instrument.
4. Plaintiff-appellant has further alleged that the defendant got prepared some document from the document-writer and the plaintiff-appellant, thereafter, on the belief that mortgage / security deed is being sought to be registered so he effected his thumb impression and accordingly, the instrument in question was registered by the Registrar, so presented therein on 16.8.2008. The plaintiff-appellant has further asserted in its plaint in Original Suit No. 526 of 2010, Sri Naval Singh Vs. Smt. Radha Dixit, which finds place as Annexure-1 at Page-64 of the stay application to the present appeal, that the registration, which was done at 16.6.2008, was a registered sale deed in place of mortgage/ security deed and then the defendant-respondent started threatening the plaintiff-appellant since 21.6.2008 for forcible and illegal dispossession, then the plaintiff was constrained to institute Original Suit no. 526 of 2010 before the Court of Civil Judge (S.D.), Agra, Naval Singh Vs. Radha Dixit, verified on 12.7.2010 seeking following reliefs: -
"A. That it be declared that sale deed dated 16.6.2008 purporting to be executed by plaintiff in favour of defendants is illegal invalid avoidable obtained by playing fraud and does not effect the right of plaintiff in disputed plot in any whatsoever and is liable to be set aside.
B. That a decree of permanent prohibitory injunction be passed in favour of plaintiffs and against defendants restraining the defendants her agent or associates from causing any sort of interference in peaceful possession over disputed plot either by forcible and illegal dispossession subsequent transfer to any other person or in any other manner whatsoever.
C. The cost of suit be awarded to the plaintiff against defendants.
D. That any other relief which the Hon'ble Court Court may deem fit and proper in the circumstances of the case be awarded to the plaintiff against the defendants."
5. On being noticed, the defendant-appellant filed its written statement verified on 2.12.2010 refuting the averments and the allegations contained in the plaint mentioning therein that on 16.6.2008, registered sale deed was executed with respect to the demised property by the plaintiff-appellant in favour of the defendant-respondent and the plaintiff-appellant himself was present before the Registrar and he had endorsed his thumb impression and he very well knew about the nature of the transaction, so sought to be entered culminating into registration of sale deed on 16.6.2008 and further the plaintiff-appellant had also received and was paid Rs.1,20,000/- in lieu of the sale consideration and thus, the suit was itself not maintainable and it was liable to be dismissed.
6. It appears that the Original Suit No. 526 of 2010, Naval Singh Vs. Smt. Radha Dixit was transferred to the Small Causes Court/ Civil Judge, Agra (hereinafter referred to as the Trial Court), wherein the following issues were framed :
"1. Whether in view of the averments in the allegations conained in the Original Suit No.526 of 2010, the sale deed dated 16.6.2008 is liable to be declared null and void?
2. Whether the plaintiff-appellant is entitled to permanent declaration as sought for?
3. Whether the suit is properly valued?
4. Whether sufficient court fees has been paid?
5. Whether any cause of action has arisen in favour of the plaintiff- appellant?
6. Whether the trial court has the jurisdiction to adjudicate the suit?
7. Whether the suit barred under Section 60 of the Registration Act?
8. Whether the suit barred under the provisions under Order VII Rule 11 CPC?
9. Other relief?"
7. The Trial Court after analysing the pleadings set-forth by the parties as well as the documents available on record proceeded to hold Issue Nos. 1, 2, 5 and 9 against the plaintiff and issue nos. 3, 4, 6, 7 and 8 in favour of the plaintiff-appellant. In nutshell, the Trial Court dismissed the suit, so instituted by the plaintiff-appellant holding that the plaintiff-appellant had failed to prove any fraud committed by the defendant-respondent in the matter of the execution of the sale deed dated 16.6.2008, in view of the fact that the plaintiff-appellant was himself present before the Registrar and he had endorsed his thumb impression and an amount of Rs.1,20,000/- was paid to him in lieu of the transaction, so conducted vide registered sale deed dated 16.6.2008.
8. Challenging the judgment, order and decree dated 25.2.2007 passed in Original Suit no. 526 of 2010 by the Trial Court, the plaintiff-appellant preferred the appeal being Civil Appeal No.47 of 2018, Naval Singh Vs. Smt. Radha Dixit before the Court of District Judge, Agra, which was later on transferred to IVth Additional District Judge, Agra (hereinafter referred to as the Lower Appellate Court).
9. The Lower Appellate Court has framed the following issues: -
"(i) Whether the finding recorded by the Trial Court holding that the plaintiff-appellant was unsuccessful in proving the fact that the registered sale deed dated 16.6.2008 was equated with fraud?
(ii) What relief the plaintiff-appellant is entitled to be granted?"
10. The Lower Appellate Court vide its judgment, order and decree dated 17.1.2009 as dismissed the appeal preferred by the plaintiff-appellant while concurring with the findings recorded by the Trial Court.
11. Further, challenging both the orders as referred to above, the plaintiff-appellant has filed the present second appeal under Section 100 of the CPC, 1908. In the memo of appeal, the plaintiff-appellant has framed the following substantial questions of law: -
"1. Whether the plaintiff suit is barred by the provisions of sec. 34 of the Specific Relief Act when he is owner and in possession of the property in suit.
2. Whether the learned trial Court erred in deciding the issue that plaintiff appellant has no locus for relief of cancellation of sale deed on the ground of averments made in suit.
3. Whether the lower appellate court erred in not appreciating the evidence educated by plaintiff-appellant.
4. Whether the judgment and decree passed by trial Court as well as appellate court is vitiated in law as being based on conjectures and surmises."
12. Before adverting to the substantial question of law, so framed by the plaintiff-appellant, this Court has to bear in its mind while deciding the present controversy, the relevant facts that there are concurrent findings of fact recorded both by the Trial Court as well as by the Appellate Court.
13. In nutshell, the plaintiff-appellant has to place its case within the parameters was envisaged under Section 100 of the CPC, 1908.
14. Section 100 of the Civil Procedure Code (CPC), which provides for a Second Appeal, as amended by the Civil Procedure Code (Amendment) Act, 104 of 1976, with effect from 1.2.1977, provides as follows:-
"100. Second Appeal. - (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."
15. In the light of the aforesaid statutory provision, as contained under Section 100 CPC, the present matter is to be adjudicated.
16. Today the matter has been listed before this Court under the heading "Order 42 Rule 11 of the CPC" as the present appeal is yet to be admitted.
17. Heard Sri Vinay Kumar Singh, learned counsel for the appellant on the issue of admission of the present appeal.
18. Learned counsel for the appellant has drawn the attention of this Court towards the judgment of the Trial Court as well as the Lower Appellate Court, so as to contend that both the courts below have committed patent error of law, apparent on the fact of the record in not decreeing the suit, so instituted by the plaintiff as fraud has been practised upon the plaintiff-appellant in view of the fact that the plaintiff-appellant had only taken financial assistance to the tune of Rs.20,000/- from the husband of the defendant-respondent being Sri Shanti Swaroop and it was mutually settled between them that a mortgage / security deed will be executed. However, while defrauding the plaintiff-appellant in place of a security / mortgage deed, a sale deed was registered on 16.6.2008, resulting to the fact that the value of the property being approximately Rs.6 lacs has been sold for Rs.20,000/- It has been further urged that the plaintiff-appellant is an illiterate person and he is entitled for a declaration that the sale deed dated 16.6.2008 is illegal and invalid and has been obtained by playing fraud and decree of permanent prohibitory injunction be passed in favour of the plaintiff and against the defendant restraining the defendant, her agent or associates from causing any sort of interference in peaceful possession over the disputed plots.
19. Learned counsel for the appellant has further invited the attention of this Court towards the substantial question of law, while referring to the first substantial question of law with respect to the fact whether the plaintiff's suit is barred by provisions of Section 34 of the Specific Relief Act, 1963, particularly when the plaintiff-appellant is the owner and is in possession of the of the suit property. A pointed query was made from the learned counsel for the appellant with regard to the fact as to how the said question of law as sought to be referred to and placed by way of an argument before this Court is attracted and relevant for the present controversy. However, the counsel for the plaintiff-appellant was not able to advance submission on the said point. Similarly, so far as the second substantial question of law, so framed by the plaintiff-appellant is concerned, the same is also totally irrelevant, as the learned Trial Court as well as the Lower Appellate Court have not non-suited the claim of the plaintiff-appellant on the ground that the plaintiff-appellant had no locus standi to institute suit for cancellation of the sale deed in question. So much so, the third and fourth framed substantial question of law are even in fact no substantial questions of law.
20. The principles determining the question of law being transformed as substantial question of law has been taken notice by a Constitution Bench of this Court in the case of Sir Chunilal Vs. Mehta & Sons v. Century Spg. & Mfg. Co. Ltd, AIR 1962 SC 1314 wherein the Hon'ble Court has observed as under: -
"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
21. The Hon'ble Apex Court in the case of Panchagopal Barua Vs. Vinesh Chandra Goswami, AIR 1997 SC 1047, has observed as under: -
"Where no such question of law, nor even a mixed question of law and fact was urged before the Trial Court or the First Appellate Court, as in this case, a second appeal cannot be entertained".
22. The Hon'ble Supreme Court in the case of Santosh Hajari Vs. Purushottam Tiwari, 4(2001) 3 SCC 179, has observed as under: -
"Whether a question of law is a substantial one and whether such question is involved in the case or not, would depend on the facts and circumstances of each case. The paramount overall consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and the impelling necessity of avoiding prolongation in the life of any lis."
23. Following the judgment in the case of Chunni Lal (supra), the Hon'ble Apex Court in the case of Hero Vinoth v. Seshammal, (2006) 5 SCC 545, in paragraph-21 has observed as under: -
"21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying "question of law", means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with- technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal 2(2006) 5 SCC 545 shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta AIR 1928 PC 172 the phrase substantial question of law as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [AIR 1951 Mad 969 : (1951) 2 MLJ 222 (FB)] : (Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] , SCR p. 557) "When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law."
24. The Apex Court in Civil Appeal No. 2843-2844/2010 decided on 1.11.2021 in the Nazir Mohamed Vs. J. Kamala and others, has observed as unde:
"25. A second appeal, or for that matter, any appeal is not a matter of right. The right of appeal is conferred by statute. A second appeal only lies on a substantial question of law. If statute confers a limited right of appeal, the Court cannot expand the scope of the appeal. It was not open to the Respondent-Plaintiff to re-agitate facts or to call upon the High Court to reanalyze or re-appreciate evidence in a Second Appeal.
26. Section 100 of the CPC, as amended, restricts the right of second appeal, to only those cases, where a substantial question of law is involved. The existence of a "substantial question of law" is the sine qua non for the exercise of jurisdiction under Section 100 of the CPC."
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32. To be "substantial", a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way.
33. To be a question of law "involved in the case", there must be first, a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.
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37. The principles relating to Section 100 CPC relevant for this case may be summarised thus :
(i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.
(iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered 5 AIR 1963 SC 302 on a material question, violates the settled position of law.
(iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence;
(ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
25. Now, coming to the facts of the present case, it is not under dispute that a registered sale deed was executed on 16.6.2008 between the plaintiff-appellant on one hand and the defendant on the other hand, whereby the land in question was transferred in favour of the defendant by the plaintiff-appellant. It is also not disputed by the plaintiff-appellant that he himself was present before the Registrar for the registration of the said instrument dated 16.6.2008 and he had endorsed his thumb impression.
26. Now, a question arises as upon whom, the burden of proof lies that the sale deed so executed on 16.6.2008 is fraudulent and under which provision of law. Sections 101 and 102 of the Evidence Act, 1872 gives a complete answer to the same. The same for ready reference is being quoted hereinunder: -
"Section 101 of Evidence Act "Burden of proof"
Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that he burden of proof lies on that person.
Section 102 of Evidence Act "On whom burden of proof lies"
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side."
27. The Hon'ble Apex Court in the case of Anil Rishi Vs. Gurbuksh Singh reported in (2006) 5 SCC 558 in paragraph- 8 to 16 has clearly observed as under: -
"8. The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, which reads as under:-
"Sec. 101. Burden of proof. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
9. In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be exception thereto. The learned trial Court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint.
10. Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.
11. The fact that the defendant was in a dominant position must, thus, be proved by the plaintiff at the first instance.
12. Strong reliance has been placed by the High Court in the decision of this Court in Krishna Mohan Kul @ Nani Charan Kul & Anr. v. Pratima Maity & Ors., [AIR 2003 SC 4351]. In that case, the question of burden of proof was gone into after the parties had adduced evidence. It was brought on record that the witnesses whose names appeared in the impugned deed and which was said to have been created to grab the property of the plaintiffs were not in existence. The question as regards oblique motive in execution of the deed of settlement was gone into by the Court. The executant was more than 100 years of age at the time of alleged registration of the deed in question. He was paralytic and furthermore his mental and physical condition was not in order. He was also completely bed-ridden and though his left thumb impression was taken, there was no witness who could substantiate that he had put his thumb impression. It was on the aforementioned facts, this Court opined:-
"12The onus to prove the validity of the deed of settlement was on the defendant No. 1. When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person, in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with jealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position"
13. This Court in arriving at the aforementioned findings referred to Section 111 of the Indian Evidence Act which is in the following terms:-
"111. Proof of good faith in transactions where one party is in relation of active confidence. Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence."
14. But before such a finding is arrived at, the averments as regard alleged fiduciary relationship must be established before a presumption of undue influence against a person in position of active confidence is drawn. The factum of active confidence should also be established.
15. Section 111 of the Evidence Act will apply when the bona fides of a transaction is in question but not when the real nature thereof is in question. The words `active confidence' indicate that the relationship between the parties must be such that one is bound to protect the interests of the other.
16. Thus, point for determination of binding interests or which are the cases which come within the rule of active confidence would vary from case to case. If the plaintiff fails to prove the existence of the fiduciary relationship or the position of active confidence held by the defendant- appellant, the burden would lie on him as he had alleged fraud. The trial Court and the High Court, therefore, in our opinion, cannot be said to be correct in holding that without anything further, the burden of proof would be on the defendant."
28. The judgment in the case of Anil Rishi (supra) was followed in a recent judgment in the case of Rattan Singh Vs. Nirmal Gill reported in AIR 2021 SC 899, wherein the Hon'ble Apex Court held as under: -
"40. The trial Court had justly placed the initial burden of proof upon the plaintiff as it was her case that the subject documents were forged or product of fraud and moreso because the documents bore her signature. The first appellate Court did not elaborate on that aspect. Even assuming that the burden had shifted upon the defendants, the witness identifying signatures of the dead attesting witness was examined by the defendants. Therefore, the documents stood proved and the burden was duly discharged by the defendants."
"The requirement regarding shifting of burden onto the defendants had been succinctly discussed in Anil Rishi v. Gurbaksh Singh (supra), wherein this Court had held that for shifting the burden of proof, it would require more than merely pleading that the relationship is a fiduciary one and it must be proved by producing tangible evidence."
29. The plaintiff-appellant has neither laid down factual foundation of fraud played upon it in the plaint nor had adduced any evidence in support thereof. Even, in fact, the plaintiff-appellant had not discharged its onus to prove that the fraud had been practised upon it and rather to the contrary the plaintiff-appellant had shifted the burden upon the defendant-respondent without any basis. As per the provisions contained under Section 101 read with Section 102 of the Evidence Act, 1872, it is the plaintiff-appellant, who had to prove the existence of a fact (fraud practised to it and the burden is upon it). Until and unless the plaintiff-appellant discharges its burden of proof, the burden cannot be shifted upon the defendant-respondent as held by the Hon'ble Apex Court in the case of Anil Rishi (supra) and Rattan Singh (supra). Paragraphs-18 and 19 of the judgment of Anil Rishi (supra) further read as under:-
"18. Difficulties which may be faced by a party to the lis can never be determinative of the question as to upon whom the burden of proof would lie. The learned Trial Judge, therefore, posed unto himself a wrong question and arrived at a wrong answer. The High Court also, in our considered view, committed a serious error of law in misreading and misinterpreting Section 101 of the Indian Evidence Act. With a view to prove forgery or fabrication in a document, possession of the original sale deed by the defendant, would not change the legal position. A party in possession of a document can always be directed to produce the same. The plaintiff could file an application calling for the said document from the defendant and the defendant could have been directed by the learned Trial Judge to produce the same.
19. There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same."
30. There is another point of angle, which needs to be addressed also, i.e, with regard to the provisions contained under Section 17 of the Registration Act, 1908.
31. Section 17 of the Registration Act, 1908, for the ready reference, is being quoted hereunder: -
"17. Documents of which registration is compulsory.--(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:
Provided that the [State Government] may, by order published in the [Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
[(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.] (2) Nothing in clauses (b) and (c) of sub-section (l) applies to--
(i) any composition deed; or
(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v) [any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court 29 [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding]; or
(vii) any grant of immovable property by 30 [Government]; or
(viii) any instrument of partition made by a Revenue-Officer; or
(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or
(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or [(xa) any order made under the Charitable Endowments Act, 1890, (6 of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or]
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer.
[Explanation.--A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.] (3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered.
Uttar Pradesh: In section 17,--
(a) in sub-section (1)--
(i) in clauses (b) and (e) omit the words "of the value of one hundred rupees and upwards",
(ii) after clause (e), insert as under-- "(f) any other instrument required by any law for the time being in force, to be registered",
(iii) Omit proviso.
(b) in sub-section (2)--
(i) in clause (v), after the words "any document" occurring in the beginning, insert the words "other than contract for sale", and omit the words "of the value of the one hundred rupees and upwards",
(ii) omit Explanation.
(c) in sub-section (3), after the words "by a will", insert the words "and an instrument recording adoption of a child executed after the first day of January, 1977". [Vide Uttar Pradesh Act 57 of 1976, sec. 32 (w.e.f. 1-1-1977)]."
32. Further, Section 68 of the Evidence Act reads as under: -
"68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: 1[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
33. Section 68 of the Evidence Act, 1872 deals with the subject regarding the proof of execution of a document required by law to be attested.
34. It is the admitted case of the parties that the sale deed dated 16.6.2008 was a registered sale deed dated 16.6.2008 was a registered document and thus in view of the proviso attached to Section 68 of 1872, it was not necessary to call an attesting witness in proof of an execution of a document, which has been registered in accordance with the provisions of Indian Registration Act, 1908, unless its execution by a person by whom it purports to have been executed specifically denies. There is a fine distinction in the present case, inasmuch as, the plaintiff-appellant has not disputed the factum of execution of the deed dated 16.6.2008, as according to the plaintiff-appellant, the same was shown to be a mortgage/security deed, but in its place, registered sale deed was executed. Even otherwise, it is/was the onus of the plaintiff-appellant to have discharged its burden, while proving the fact that the registered sale deed dated 16.6.2008 was a fraudulent transaction. However, as noted earlier, the same has not been discharged.
35. The law in this regard is well settled that there is a presumption that a registered document is validly executed and a registered document, therefore, prima facie, would be valid in law. In the case of Prem Singh and others Vs. Birbal and others, reported in (2006)5 SCC 353, the Hon'ble Apex Court in paragraph-27 has held as under:-
"27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption."
36. The judgment in the case of Prem Singh (supra) has been followed in the recent judgment in the case of Rattan Singh (supra), which reads as under:-
"32. To appreciate the findings arrived at by the Courts below, we must first see on whom the onus of proof lies. The record reveals that the disputed documents are registered. We are, therefore, guided by the settled legal principle that a document is presumed to be genuine if the same is registered, as held by this Court in Prem Singh and Ors. v. Birbal and Ors."
37. Though this Court is not required to go into the factual issues, but this Court while deciding the present appeal, has carefully gone through the pleadings as well as the judgment of the Trial Court as well as that of the Appellate Court. The plaintiff-appellant has alleged that he is an illiterate person and he is not in a position to make his signatures. The Trial Court as well as the lower appellate court have dealt with the said issue and in paragraph-12 of the judgment and decree of the lower Appellate Court, the following has been observed:
"[email protected] }kjk viuh izfrijh{kk esa ;g Lohdkj fd;k gS fd mlus rglhy esa tkdj cSukek dh fy[kk i<+h djokbZ Fkh rFkk dkxtksa ij viuk vWaxwBk yxk;k FkkA dsnkj flag ,MoksdsV us rglhy fdjkoyh us cSukek fy[kk FkkA oknh }kjk ;g Hkh Lohdkj fd;k x;k gS fd mlus jftLV~zkj ds ;gkWa Hkh vWaxwBk yxk;k Fkk rFkk vWxwBk yxk;k FkkA oknh }kjk ;g Hkh Lohdkj fd;k x;k gS fd cSukeas okys fnu og viuh ethZ ls rglhy vdsyk x;k Fkk rFkk dksbZ u'kk ughsa djrk gSA rglhy esa og iw.kZ gks'k gok'k esa FkkAß
38. So far as, the issue in relation to the payment of Rs.1,20,000/- is concerned, the lower Appellate Court in its judgment and decree dated 25.2.2017 has recorded a clear cut finding as under: -
"izfrokfnuh ds ifr us oknh ds lkFk dkbZ /kks[kk/kM+h ugha dhA oknh us cSukek ls igys ?kj ij dqy jde cSukek le{k xokgku gkfl;k xokg pUnzHkku mQZ lksyqvk ds gkFk ls 1]20][email protected]:i;s 'kkUrh Lo:i iq= Jh ckcw yky ;knjke v/;kid ds lkeus izkIr fd;s FksA oknh ds dgus ij gh cSukek ds dkxt rS;kj fd;s x;s vkSj oknh us le{k xokgku cSukek ds dkxtkr ij vius vWaxwBk fu'kkuh fd;s FksA lc jftLV~zkj fdjkoyh }kjk oknh ds dkxtkr ij vius vWaxwBk fu'kkuh fd;s FksA lc jftLV~zkj fdjkoyh }kjk oknh dks cSukek i<+dj lquk;k Fkk vkSj izfrQy izkIr djus dh ckor~ iwNk Fkk rc oknh us fodzhr jde 1]20][email protected]& :i;s izkIr gksus dh LohdkjksfDr dh] mlds ckn lc jftLV~zkj egksn; fdjkoyh }kjk cSukek iathd`r fd;k x;kA"
39. After going through the pleadings set forth in the present appeal, as well as the arguments so advanced by the learned counsel for the plaintiff-appellant, this Court finds that no substantial question of law is involved in the present appeal purported to be under Section 100 of CPC, 1908 and thus, the present appeal is liable to be dismissed at the stage of admission under Order 41 Rule 11 of CPC, 1908.
40. Accordingly, the present second appeal under Order 41 Rule 11 of CPC is dismissed at the admission stage.
41. Cost made easy.
Order Date :- 29.10.2021 N.S.Rathour