IMPORTANT POINT
The burden of proof is on the plaintiff to prove fraud, and complete particulars of fraud must be stated in the pleadings. A registered deed of sale carries a presumption of genuineness, and the onus is on the defendant to prove that the deed was not executed and was a sham transaction.

JUDGMENT ON BOARD :

Goutam Bhaduri, J.

1. Challenge in this appeal is to the judgment & decree dated 25-1-2016 passed by the Ninth Additional District Judge, Raipur, in civil suit No.139-A/15 whereby the suit preferred by the plaintiff for cancellation of sale deed has been dismissed. Being aggrieved by such judgment, the present appeal.

2. (i) The facts, in brief, as pleaded by the plaintiff, are that the plaintiff was the owner of land bearing khasra No.338/7 & 339/2 admeasuring 0.069 hectares and khasra No.338/13 & 339/4 admeasuring 0.263 hectares total admeasuring 0.332 hectares situated at village Devpuri, PH No.37, RI Circle Raipur-2, Tahsil & District Raipur. Plaintiff stated that apart from that land, the other landS bearing khasra No.338/8 admeasuring 0.218 hectares and khasra No.338/14 & 339/5 admeasuring 0.109 hectares total admeasuring 0.327 hectares was sold by the plaintiff Bodhiram Yadav on 13-7-2011. However, the suit land, which bears khasra No.338/7 & 339/2 admeasuring 0.069 hectares and land bearing khasra No.338/13 & 339/4 admeasuring 0.263 hectares, were never sold by the plaintiff to the defendant. Plaintiff also stated that when he received the mutation notice on 25-5-2015 he came to know about execution of sale deed.

(ii) According to the plaintiff, he was an illiterate person and because of old age he was not able to see and hear properly, as such, taking advantage of his old age few of the land brokers prepared the registry papers and on the sale deed, his thumb impression was obtained on 13-7-2011. Plaintiff further stated that, in fact, he has not executed the sale deed and without payment the land has been acquired. Plaintiff, therefore, filed a suit for declaration and cancellation of sale deed dated 13-7-2011.

3. The defendant No.1 remained ex parte in the suit.

4. During pendency of this appeal the sole appellant/plaintiff Bodhiram Yadav died, his legal representatives were brought on record. Subsequently, during pendency of this appeal, the legal representative No.2 of Bodhiram namely; Maniram Yadav also died. His legal representatives have not been brought on record. However, the right of suit survives on the part of other legal representatives.

5. The plaintiff Bodhiram Yadav examined himself as PW-1 and also examined Prema Bai (PW-2), Sheetal Prasad Sahu (PW-3) and Sanat Kumar Kurre (PW-4).

6. On the basis of material available on record, the learned trial Court dismissed the suit. Thus, this appeal.

7. Learned counsel appearing for the plaintiff would submit that by playing fraud with the plaintiff the alleged sale deed has been executed. He would further submit that the learned trial Court completely misdirected itself to hold that the plaintiff could not have adduced the evidence as against Section 92 of the Evidence Act. To buttress his contention, learned counsel would place reliance upon the decision rendered by the Supreme Court in the matter of Smt. Gangabai W/o Rambilas Gilda vs. Smt. Chhabubai W/o Pukharjji Gandhi, (1982) 1 SCC 4. According to the learned counsel, the trial Court completely recorded a wrong finding on the basis of statement of plaintiff and his witnesses, which remains unrebutted. Thus, the impugned judgment and decree is liable to be set aside.

8. Learned counsel appearing for the defendant No.1, per contra, would submit that the plaintiff has categorically failed to prove that the sale deed was sham and bogus. He would further submit that there is no specific pleading to this effect as to how the fraud was committed, therefore, in absence of any particulars, the statement of plaintiff cannot be accepted to be a gospel truth. He would submit that dismissal of the suit by the trial Court is well merited, which do not call for any interference of this Court.

9. We have heard learned counsel for the parties at length and perused the record with utmost circumspection.

10. From the record it is manifest that Maniram Yadav, son of Bodhiram, died on 28-5-2019. The said fact is evide