Mohammad Rafiq, J. - (1.) THIS second appeal is directed against the judgment and decree dt. 01.05.2012 passed by the learned Additional District Judge, Bandikui who thereby affirmed the judgment and decree passed by the learned Civil Judge (Senior Division) & Judicial Magistrate, Bandikui dt. 13.10.2009. The plaintiffs filed the suit for specific performance alleging that the defendant had sold her 1/4th share in the ancestral land of her husband situated of khasra Nos. 45, 86 and 88 to him for a sum of Rs. 45,000 by execution of agreement on 13.5.1996. In doing so, she adjusted the amount of Rs. 5,000 received earlier and further received another amount of Rs. 5,000 by cheque. Thus a total of Rs. 10,000 was received as advance. The agreement on a stamp paper of Rs. 5 was prepared by Vishram Singh Gurjar in witness of Babulal and Ladu Singh and the plaintiff was put in possession.
(2.) SHRI V.K. Sharma, learned counsel for the appellant submits that the learned trial Court has erred in law in deciding Issue No. 1 against the appellant. The defendant had admitted putting her signature, but she disputed that she signed the agreement to sale. Learned counsel submitted that once the defendant had admitted to have signed the agreement to sale, there may not be any second conclusion except that she signed the agreement for selling her share in the land in dispute. Ex. 4, the agreement to sale thus stood proved by own admission of the respondent. The non -production of the witness Vishram Singh Gurjar, Babu Lal and Ladu Singh would not be fatal. Even otherwise, the affidavit of Ladu Singh was filed by the plaintiff, but it could not be proved in evidence. Learned counsel argued that the finding of the trial Court that the money was borrowed by the defendant for her family requirement and that the written document only proves that the money was borrowed and the adjustment of the earlier amount of Rs. 5,000 was not towards the consideration for sale. These two observations would not have any adverse effect, but eventually the amount of Rs. 5,000 was also adjusted against the sale consideration where for additional amount of Rs. 5,000 was further received by the defendant. The trial Court ought to have therefore decreed the suit. The appellate Court has also erred in law in reiterating the same finding. On hearing learned counsel for the parties and perusing the impugned order, I find that both the Courts below have concurrently held that the so -called written arguments was a suspicious document. This document appears to have been written in two parts at two stages which is evident from the fact that its parts were written in two different communications. For one part, it was asserted that the land was agreed to be sold for Rs. 10,000, against which Rs. 5,000 was already received, whereas in subsequent part the sale consideration was described to be Rs. 45,000. Neither the witness Vishram Singh Gurjar, nor the two witnesses Babu Lal and Ladu Singh were produced. Affidavit of Ladu Singh, one of the witnesses would have no sanctity because he was not produced in evidence. The learned Courts below rightly held that in civil matters, the case of the plaintiff is required to be proved in case of preponderance of probabilities and when the plaintiff has failed to discharge its proof even by that requirement. Mere fact that the defendant's counsel accepted signature does not prove that she has admitted everything written on the document Ex. 4. In fact, she denied having agreed to sell the land. The alleged transfer of possession has also not been proved because it was a joint family property and the possession of the defendant was as a co -sharer along with other members of the family. In view of above, we do not find any infirmity in the impugned judgment. The appeal is therefore dismissed. ;