Burden of Proof -unless it was clearly pleaded that she is an illiterate lady and paradhasheen lady – the burden never shifts on defendants to prove that the contents are read over and explained and the same were read over and thereafter only she put her LTI = High Court has proceeded that the plaintiff­first respondent was a pardanasheen illiterate lady and shifting the burden of proof on the shoulder of the appellant­first defendant to establish that the document was explained to the plaintiff­first respondent and she understood it and thereafter transaction was entered into, is against the pleadings on record.= On perusal of the plaint, it reveals that it has nowhere been pleaded that the plaintiff­first respondent is a pardanasheen illiterate lady. In the ordinary course the burden of proof rest, on who attack. On the contrary, it was pleaded in the plaint that defendant nos.1 and 3 are the sons of her uncle Mangta and defendant no. 2 is the wife of defendant no. 1 and they hatched a conspiracy to grab the land of the plaintiff­first respondent and with connivance, the power of attorney was prepared & registered on 25th April, 1995 in the registry office, in the name of the plaintiff and pursuant thereto, suit land was sold by a registered sale deed. – We still, for our satisfaction have gone through the plaint placed on record at Annexure P/1 and we are unable to find the pleadings in support that she was a pardanasheen illiterate lady and was entitled for protection of law and the burden was on the defendant­appellant to prove that the alleged power of attorney was the result of fraud. After we have heard the parties, we are of the view that the High Court has committed a manifest apparent error in reversing the concurrent finding of the two Courts below and on this score the impugned judgment is not sustainable.

NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 7137 OF 2010
ALI HUSSAIN(D) THROUGH LRS ….APPELLANT(S)
VERSUS
RABIYA & ORS. ….RESPONDENT(S)
J U D G M E N T
Rastogi, J.

  1. This appeal is directed against the judgment and decree
    dated 18th August, 2008 passed by the High Court of
    Uttarakhand in Second Appeal No. 1341 of 2001.
  2. The facts in brief are that the first respondent­plaintiff filed
    a suit against the defendant­appellant for cancellation of sale
    deed dated 10th May, 1995 registered in Sub­Registrar Office,
    Jagadari, Roorkee on 22nd May, 1995. According to the plaint,
    the plaintiff­first respondent Smt. Rabiya inherited the property
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    shown in the schedule of property indicated at the foot of the
    plaint, from her father late Sri Ahamad and is the owner and in
    possession of the suit property in question. It was further
    averred that the impleaded defendants in the suit (defendant
    nos.1 and 3, Ali Hussain and Abdul Hassan) are the sons of her
    great grandfather and impleaded defendant no. 2 Smt. Raquiba,
    is the wife of Ali Hussain (impleaded defendant no. 1).
  3. It was averred in the plaint that the impleaded defendant
    no.1 (appellant) in order to grab the suit property of the
    plaintiff­respondent, got prepared a forged registered power of
    attorney, in the name of the plaintiff­first respondent on 25th
    April, 1995 and on the basis of the forged power of attorney, sold
    the suit property by a registered sale deed for a consideration of
    Rs. 1,50,000/­ on 10th May, 1995 in favour of defendant nos. 2
    and 3 (Smt. Raquiba and Abdul Hassan). According to the
    plaintiff­first respondent, the sale price of the suit property could
    not be less than Rs. 3,00,000/­. It is also alleged in the plaint
    that there is no recital as to who had actually received the sale
    consideration and she is in actual possession of the suit property
    and the forged sale deed was never acted upon. It was prayed for
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    the decree for cancellation of power of attorney and the sale deed
    obtained by playing fraud.
  4. Before the trial Court, on the basis of pleadings of the
    parties, following issues were framed:­
  5. Whether the sale deed dated 10.05.1995 executed by
    defendant no. 1 in favour of defendant nos. 2 and 3
    is liable to be cancelled on the grounds set in the
    plaint?
  6. Whether the alleged power of attorney dated
    25.04.1995 executed by plaintiff in favour of
    defendant no. 1 is forged document and the plaintiff
    did not execute the same? If so, its effect?
  7. Whether the plaintiff received the sale consideration
    in respect of sale deed from defendant no. 1 in
    favour of defendant nos. 2 & 3.
  8. Whether the plaintiff is owner and in possession of
    the property in dispute?
  9. Whether the plaintiff is entitled for any relief?
  10. Whether after selling the property in dispute to
    Mohammad Mateen by the plaintiff, the suit
    rendered infructuous?
  11. Whether the suit is barred by principle of estoppel
    and acquiescence?
  12. Whether the suit rendered infructuous in view of the
    contention raised in para no. 13­A of the written
    statement?
  13. Both the parties adduced their oral as well as documentary
    evidence in support of their defence. The trial Judge, after
    hearing the parties and considering the evidence on record,
    dismissed the suit filed by the plaintiff­first respondent vide
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    judgment and decree dated 19th January, 2001 which was further
    assailed at the instance of the plaintiff­first respondent in first
    appeal which was dismissed vide judgment and decree dated 27th
    August, 2001, further assailed in second appeal before the High
    Court of Uttarakhand.
  14. It may be relevant to note that at the time of admission of
    second appeal, the High Court admitted the appeal on the
    following substantial questions of law:­
  15. As to whether both the courts below were justified
    placing burden of proof on the plaintiff/appellant to
    prove negative fact that power of attorney is not
    executed by her?
    2.Whether burden/onus of proof lies on the transferee
    when transferor totally denies execution of the deed
    by himself? If so, its effect?
  16. The High Court after hearing the parties proceeded on the
    premise that the plaintiff­first respondent was the pardanasheen
    illiterate lady and taking note of the judgment of this Court in
    Mst. Kharbuja Kuer Vs. Jangbahadur Rai and Others AIR
    1963 SC 1203, relying on the judgment of the Privy Council
    (Farid­Un­Nisa(Plaintiff) Vs. Mukhtar Ahmad and
    Another(Defendants) AIR 1925 PC 204) held that burden of proof
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    in such a case rest, not with those who attack, but with those
    who found upon the deed, and the proof must go so far as to
    show affirmatively and conclusively that the deed was not only
    executed by, but was explained to, and was really understood by
    the grantor.
  17. The High Court held that the burden to prove that the
    alleged power of attorney is not a result of fraud and
    misrepresentation lie on the shoulder of the appellant­defendant
    because they are the beneficiaries and the trial Court and the
    first Appellate Court has committed a manifest error in shifting
    the burden on the shoulders of the plaintiff­first respondent and
    accordingly set aside the judgment and decree of the Courts
    below and remitted the matter back to the trial Judge to decide
    the suit afresh in view of the evidence available on record taking
    note of the observations made by the High Court in the impugned
    judgment dated 18th August, 2008 which is a subject matter of
    challenge at the instance of the appellant­defendant no. 1 before
    us.
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  18. This Court, while issuing notice on 14th November, 2008
    stayed the operation of the impugned judgment dated 18th
    August, 2008.
  19. Learned counsel for the appellants submits that the very
    foundation on which the High Court has proceeded that the
    plaintiff­first respondent was a pardanasheen illiterate lady and
    shifting the burden of proof on the shoulder of the appellant­first
    defendant to establish that the document was explained to the
    plaintiff­first respondent and she understood it and thereafter
    transaction was entered into, is against the pleadings on record.
    From the perusal of the copy of the plaint annexure P/1 on
    record filed by the plaintiff­first respondent, it is nowhere pleaded
    that she was a pardanasheen illiterate lady and in absence
    whereof, the very proposition which has been examined by the
    High Court under the impugned judgment is unsustainable and
    so far as the issues which are framed by the trial Judge on the
    basis of the pleadings on record, all have been negated against
    the plaintiff­first respondent and in the given circumstances, the
    finding recorded by the High Court in remitting the matter to the
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    trial Judge to revisit the same on the basis of principles laid
    down deserves to be interfered by this Court.
  20. Per contra, learned counsel for the respondents, while
    supporting the finding recorded by the High Court under the
    impugned judgment, submits that it is indisputed fact that the
    plaintiff­first respondent is a pardanasheen illiterate lady and
    still the case was proceeded with the burden of proof on her
    shoulders to establish that the power of attorney executed by the
    plaintiff in favour of defendant­appellant was a forged document
    was a patent error of law. In the given circumstances, the
    burden of proof was upon the defendant no.1­appellant to
    establish that the registered power of attorney executed on 25th
    April, 1995 was a genuine document and only thereupon the
    onus could have been shifted to the plaintiff­first respondent and
    this is an apparent manifest error which was committed by the
    trial Judge but noticed by the High Court in the impugned
    judgment and it needs no further interference by this Court.
  21. We have heard learned counsel for the parties and with
    their assistance perused the material available on record.
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  22. The plaintiff­first respondent filed a Suit No. 155 of 1996
    before the Civil Judge (J.D.), Roorkee. A copy of the plaint has
    been placed on record (Annexure P/1). On perusal of the plaint,
    it reveals that it has nowhere been pleaded that the plaintiff­first
    respondent is a pardanasheen illiterate lady. In the ordinary
    course the burden of proof rest, on who attack. On the contrary,
    it was pleaded in the plaint that defendant nos.1 and 3 are the
    sons of her uncle Mangta and defendant no. 2 is the wife of
    defendant no. 1 and they hatched a conspiracy to grab the land
    of the plaintiff­first respondent and with connivance, the power of
    attorney was prepared & registered on 25th April, 1995 in the
    registry office, in the name of the plaintiff and pursuant thereto,
    suit land was sold by a registered sale deed. On the basis of
    pleadings on record, the above­mentioned eight issues were
    framed on which both the parties have adduced oral and
    documentary evidence and the trial Judge, after considering the
    evidence, dismissed the suit vide judgment and decree dated 19th
    January, 2001 and that came to be affirmed on dismissal of the
    appeal filed at the instance of the plaintiff­first respondent dated
    27th August, 2001. It reveals from the record that without there
    being any factual foundation, the High Court, while admitting the
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    appeal, framed two substantial questions of law in reference to
    which there was no supporting pleadings on record.
  23. We still, for our satisfaction have gone through the plaint
    placed on record at Annexure P/1 and we are unable to find the
    pleadings in support that she was a pardanasheen illiterate lady
    and was entitled for protection of law and the burden was on the
    defendant­appellant to prove that the alleged power of attorney
    was the result of fraud.
  24. After we have heard the parties, we are of the view that the
    High Court has committed a manifest apparent error in reversing
    the concurrent finding of the two Courts below and on this score
    the impugned judgment is not sustainable.
  25. Consequently, the appeal succeeds and accordingly allowed.
    The judgment of the High Court in second appeal dated 18th
    August, 2008 is hereby set aside. No costs.
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  26. Pending application(s), if any, stand disposed of.
    ..………………………………………J.
    (N.V. RAMANA)
    ..………………………………………J.
    (MOHAN M. SHANTANAGOUDAR)
    .……………………………………….J.
    (AJAY RASTOGI)
    NEW DELHI
    SEPTEMBER 17, 2019
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