- (1.) K. S. Rakhra, J. This is defendant's second appeal against the Judgment and decree dated 28-3-1987 passed by lind Additional District Judge, Faizabad In Civil Appeal No. 301 of 1982 by which the decree dated 15. 7j 982 of the trial Court in Regular Suit No. 256 of 1981, Abdul Wahid and others v. Iqbal Ahmed was reversed.
(2.) THE substantial questions of law on which the appeal has been pressed and the learned counsel for the parties have addressed the Court are following: (1) Whether the burden to prove that the sale deed was liable to be cancelled for the ground given in the plaint was on the plaintiff and whether the same was shifted to the defendants in this case. (2) Whether adverse Inference could be drawn against the defendant in the present case because he had failed to produce before the Court the original sale deed. The suit of the plaintiff was for cancellation on sale deed dated 25-8-1981, which is said to have been executed by plaintiff No. 1 Abdul Wahid in favour of defendant lqbal Ahmed. The challenge to the sale deed Was inter alia on the ground that no sale deed was executed by plaintiff No. 1 and the same has been forged presenting an imposter before the sub-registrar. It was further challenged on the ground of want of consideration, Inadequacy of consideration, fraud, undue influence. unsound mind and the illness of the plaintiff No. 1. The defendant is the son of the real sister of the plaintiff No. 1. The defendant resisted the suit inter alia on the ground that the sale deed was executed for consideration shown In the deed itself and it was conscious act of the plaintiff No. 1, who was of sound mind with all his faculties functioning properly and without exercise of any undue influence or of play of fraud. The defendant claimed that the plaintiff No. I had borrowed money from his father and could not repay the same but delivered possession to him and subsequently he expressed his intention to execute the sale deed of the land for a sum of Rs. 18,000 in favour of defendant in lieu of the said loan. Since Rs. 10,000 was already outstanding as loan and Rs. 8,000 was given to the plaintiff No. 1 in this connection, the sale deed was executed in the sub-registrar's office.
(3.) ON these pleadings, the trial Court framed several issues including the issue as to whether the plaintiff had executed sale deed dated 25-8-1981 and whether it was liable to be set aside on the ground mentioned In para 7 of the plaint. The trial Court decided against the plaintiff on the ground that the burden to prove the ground of challenge of the sale deed was on the plaintiff and the plaintiff had not adduced any oral evidence to prove them. The trial Court also repelled the arguments that the burden was on the defendants to prove that the plaintiff No. 1 had executed sale deed on 25-8-1981 in his favour. It was of the opinion that the burden lay on the plaintiff and the said burden was not discharged. It observed that there was presumption as to the legality and validity of the registered sale deed unless proved otherwise. The plaintiff challenged the verdict of the trial Court In the first appellate Court. The first appellate Court reversed the decree primarily on the circumstances that the sale deed in question was not produced by the defendant and therefore, adverse Inference was to be drawn. The first appellate Court also observed that for comparison of the thumb impression of the plaintiff No. 1, production of the sale deed In question was necessary. The trial Court observed that plaintiff No. 1 moved an application for direction to the defendant to produce the original sale deed but the trial Court wrongly rejected the said application. It was observed that though nobody can be compelled to file document or evidence in respect of the case but since the sale deed was basis of the suit, it must have been brought on record. The Court drawing adverse inference observed that if there had been any truth in the contention of the respondent (defendant) that the sale deed was executed by plaintiff No. 1, It was mandatory duty of the respondent to file the sale deed. The plaintiff had insisted that the defendant should file sale deed in the Court because unless the original was flied and seen by the plaintiff, it could not be said by him whether it was bearing his thumb impression or not. In the circumstances mentioned above, the first appellate Court concluded that since the original sale deed was not produced by the defendant without any cause, adverse inference was to be drawn holding that it was not executed by plaintiff No. 1. Thus, on the basis of this inference and averment in the plaint alone, the first appellate Court reversed the decree of the trial Court.;