S. B. SINHA, J. : - Leave granted.

2. The defendant in the suit is the appellant herein. He is before us aggrieved by a judgment and order dated 14 -12 -2005 passed by the Punjab and Haryana High Court at Chandigarh in Civil Revision No. 1077 of 2005 dismissing his revision application arising out of an order dated 9 -2 -2005 passed by the Civil Judge (Junior Division), Chandigarh.

3. An agreement to sell dated 26 -3 -1990 was entered into by and between the parties hereto in relation to the premises bearing House No. 86, situate in Sector 18A, Chandigarh. A sale deed was executed pursuant to the said agreement to sell on 26 -3 -1991. However, a suit for declaration was filed by the respondent herein alleging that the said sale deed dated 26 -3 -1991 was forged, fabricated and was a void document. The appellant flied his written statement in the said suit denying or disputing the allegations contained therein. On the pleadings of the parties herein, issues were framed by the learned trial Judge including the following:

"Whether the sale deed dated 26 -3 -1991 is forged and fabricated as prayed for?"

4. An application was filed by the respondent for deletion of the said issue and reframing of the same. The learned trial Judge reframed the issue allowing the said application in terms of order dated 9 -2 -2005. Reframed Issue 2 reads as under:

"Whether the alleged sale deed dated 26 -3 -1991 is a valid and genuine document?"

5. The learned trial Judge while passing its order dated 9 -2 -2005 held:

"Normally the initial burden of proving the execution of a document when it is denied must rest upon the person alleging its execution. Here in the present case the plaintiff has denied the execution of the sale deed. The onus to prove an issue has to be discharged in the affirmative. It is always difficult to prove the same in the negative. When the fact is proved in the affirmative or evidence is led to prove the same, onus shifts on the other side to negate the existence of such a fact."

6. A revision application filed on behalf of the appellant herein against the said order was dismissed by the High Court by reason of the impugned order stating:

"In the present case, it is the case of the plaintiff -respondent that he had not executed any sale deed dated 26 -3 -1991 in favour of the defendant appellant and it was a forged and fabricated document. On the other hand, it is the case of the defendant that the said sale deed is a valid and genuine document. The sale deed itself is in possession of the defendant. In such a situation, the defendant is in a dominating position to prove the document affirmatively, whereas, it will be difficult for the plaintiff to prove the same negatively, who is not even in possession of the sale deed in question. After the defendant proves the validity and genuineness of the sale deed, the turn will come of the plaintiff to prove the document negatively. In this view of the matter, I am of the considered opinion that the trial Court has rightly reframed Issue 2 and put the onus on the defendant to prove whether the same is a valid and genuine document. There is no infirmity in the order dated 9 -2 -2005 passed by the Civil Judge (Junior Division), Chandigarh .... "

7. In the impugned judgment, the High Court proceeded on the basis that although generally it is for the plaintiff to prove such fraud, undue influence or misrepresentation, but when a person is in a fiduciary relationship with another and the latter is in a position of active confidence, the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position.

8. The initial burden of proof would be on the plaintiff in view of section 101 of the Evidence Act, which reads as under:

"101. Burden of proof - Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those