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:­
1. 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?
2. 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?
3. Whether the plaintiff received the sale consideration
in   respect   of   sale   deed   from   defendant   no.   1   in
favour of defendant nos. 2 & 3.
4. Whether the plaintiff is owner and in possession of
the property in dispute?
5. Whether the plaintiff is entitled for any relief?
6. Whether   after   selling   the   property   in   dispute   to
Mohammad   Mateen   by   the   plaintiff,   the   suit
rendered infructuous?
7. Whether the suit is barred by principle of estoppel
and acquiescence?
8. Whether the suit rendered infructuous in view of the
contention raised in para no. 13­A of the written
statement?
5. 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.
6. 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:­
1. 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?
7. 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.
8. 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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9. This Court, while issuing notice on 14th  November, 2008
stayed   the   operation   of   the   impugned   judgment   dated   18th
August, 2008.
10. 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.
11. 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.
12. We have heard learned counsel for the parties and with
their assistance perused the material available on record.
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13. 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. 
14. 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.
15. 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. 
16. 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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17. 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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