S.H.A.Raza, J. - (1.) THIS second appeal is directed against the judgment and decree dated 22.12.1988 passed by the III Additional District Judge, Barabanki in Civil Appeal No.1 of 1985 in re: Smt.Hubraja alias Barkiv. Laxmi Narain and another, allowing the plaintiff/respondent's appeal filed against the judgment and decree passed by the Munsi Ram Sanehi Ghat, District Barabanki, in regular suit No.35 of 1979 in re : Smt. Hubraja alias Barki v. Laxmi Narain and another, dismissing the plaintiff/respondent's suit for cancellation of sale deed which she allegedly executed in favour of defendant/appellants. The learned counsel for the appellants challenged the judgment of the first appellate Court dated 22.12.1988 passed in Civil Appeal No. 1 of 1985 on the following substantial questions of law : (a) Whether the burden of proof could legally be shifted to the defendants/appellants under these circumstances of the present case as had been done by the appellate Court below and the decree passed by the said Court on that basis is sustainable in the eye of law ? (b) Whether the burden of proof has on the plaintiff/respondent specially when it has been specifically pleaded by the plaintiff/respondent in her plaint that a fraud has been acted upon her by the defendants/appellants through the instrumentality of one Chandrapal and thereby the sale deed in question has been obtained ? (c) Whether the endorsement made by the Sub -register on the sale -deed in question at the time of its presentation before him for registry in the course of his usual discharge of his duties is admissible in law and it has its evidentiary value? (d) Whether the finding recorded by the appellate Court below basing on contradictory pleadings of the plaintiff/respondent in her pleading here and in Revenue Court and ignoring the important aspect of the matter available in favour of the defendant/appellants, is a perverse finding and the same is not sustainable in the eye of law ?
(2.) THE brief facts giving rise to this appeal are that Smt.Hubraja who is arrayed as respondent to this appeal has filed a suit against the defendant/appellants for cancellation of sale -deed in the Court of Munsif, Ram Sanehi Ghat, District Barabanki. She has averred in the plaint that she is Bhumidhar in possession over the land in dispute and she had great faith and confidence on defendant No.3 Shri Chandrapal. There existed a family dispute between her late husband and Sarva Sri Laxmi Narain and Rameshwar and they won over one Shri Chandrapal, who was known to her. In July, 1978 they took Smt. Hubraja to Tahsil Haidergarh on the pretext of getting her, fertilizer, and there obtained her signatures on various papers and produced her before some officers. As she had great confidence upon Shri Chandrapal, she acted on his instructions. She further averred that neither she executed any sale -deed in favour of the respondent nor received any consideration for the said amount. When she was informed that respondent committed breach of faith, only then she filed the present suit. The defendant denying the allegations stated in their written statement that they were carrying on 'Batai' into the land of Smt. Hubraja, who is all alone in her house and as she was having difficulty in managing her scattered land and property, she on her own accord executed the sale -deed in favour of the respondent for a consideration of Rs.33,000 which was paid to her on the same day at her house. They further stated that Smt.Hubraja accompanied them to Haidergarh at her own free will, executed the sale -deed with her full understanding.
(3.) THE Counsel of the appellants has assailed judgment of the first appellate Court mainly on the ground that it has wrongly shifted the onus of proof upon the appellants. He further submitted that it was incumbent upon the plaintiff -respondent to prove the alleged fraud and as the sale -deed was executed before the Sub -Registrar and he made and endorsement of respondents presence before him in the course of usual discharge of his duty, hence the admissibility of the execution of the sale -deed and its authenticity cannot be doubted. From the finding of fact recorded by the first appellate Court, it is clear that the respondent -plaintiff is an illiterate and mentally deficient Hindu Widow and is aged in between 65 to 75 years. Hence, it has to be seen as to whether the first appellate Court committed any error in shifting the onus of proof upon the defendant -appellants to prove that she executed the sale -deed after understanding the contents of the instrument.;