The burden of proof lies on the party alleging fraud, and the genuineness of a sale deed can be established through evidence of consideration, possession, and execution and registration of the deed.

Heard learned Counsel appearing for the parties at length. The second appeal was heard for admission on 15-12-2011, when this Court was pleased to issue notice to the respondent. Ad interim relief was granted in terms of prayer clause (B) of the civil application. When this matter was taken up for hearing on 08-02-2012, this Court observed that, looking to the nature of controversy involved in the matter, it is appropriate to dispose of the matter finally at admission stage and accordingly, the matter is finally heard.

2. Learned Counsel appearing for the appellant submits that, both the Courts below have proceeded on the footing that burden lies on the present appellant in respect of proving fraud, when it is an admitted position that the present appellant is blind person, and therefore, the burden lies on the respondent to prove that the sale deed is genuine one. In support of this contention that, since the appellant is blind, and therefore, burden lies on the respondent to prove the sale deed is genuine one, learned Counsel for the appellant placed reliance upon the reported judgment of the Supreme Court in the case of Mst. Sethani vs. Bhana [AIR 1993 SC 956].

3. It is further submitted that, for proving genuineness of the execution of the sale deed, the defendant has to prove that the consideration was paid to the present appellant. It is submitted that, in respect of the consideration, the defendant has relied upon the recitals in the sale deed and the statement of one of the attesting witness D.W. No. 2 at Exhibit32, who has stated in his examination in chief itself that the consideration amount of sale Rs.58,500/,-was paid at the time of execution of the sale deed, whereas in the sale deed at Exhibit37, it is recited that the amount of consideration was paid prior to execution of the sale deed. No time and date was mentioned in the sale deed regarding the payment of consideration amount. It is submitted that, the defendant in his cross examination at Exhibit31 specifically admits that he has no document to show that he has amount on the date of execution of sale deed and thus, there is no evidence to show that consideration was paid to the plaintiff against the alleged sale deed. It is submitted that, both the Courts below have relied upon the recitals of the sale deed when the genuineness of the sale deed itself is in dispute.

4. It is further submitted that, possession of the said property was not handed over to the defendant. During the pendency of the suit and appeal, there was order of the Court in respect of maintaining the status quo. Therefore, there is nothing on record to show that the present respondent is in possession of the suit property. It as submitted that, both the Courts below have relied upon the revenue entries, when the base of taking the revenue entries is sale deed itself, thus no weight-age should be given to the said revenue entries. It is further submitted that, the appellant is blind person is an admitted position. The Budha Bakale (Exhibit31) and the attesting witness D.W. No. 2 Yunus Dadamiya at Exhibit-32, nowhere stated that, the contents of the sale deed were read over to the present appellant. Merely, that the son of the present appellant was attesting witness to the said sale deed does not prove the genuineness of the execution of the sale deed. Attestation of the document is entirely different than that of the due execution.

5. It is further submitted that, one more circumstances which could be taken into consideration is that, it has come in evidence that the alleged sale deed was executed on 25-05-2001 and the same was alleged to have been registered on 28-05-2001, there is absolutely no evidence to indicate that on the day of registration of the alleged sale deed present appellant or his son were present. None of the witness of the respondent made a positive statement that the present appellant or his son were present on the day of registration of the said sale deed. It i