The burden of proof lies on the party asserting a claim, and failure to substantiate such claims results in dismissal of the suit.

JUDGMENT :

1. This Second Appeal is filed under Section 100 of the Code of Civil Procedure, `908 (“CPC” for short). Being aggrieved and dissatisfied with the Judgment and order dated 22-07-2022 passed below Exh.22 in Regular Civil Appeal No.104 of 2015, whereby the Appeal was dismissed, confirming the Judgment and decree dated 21-08-2015 passed in Regular Civil Suit No.145 of 2012, whereby the suit of the plaintiff was dismissed, raising the following substantial questions of law.

“1. Whether the courts below committed an error in dismissing the suit without examining the fact of the Agreement produced by the plaintiff.

2. Whether the Courts below committed an error by failing to frame issue and decide in favour of the original plaintiff that the onus of proving the existence of Agreement lies upon the defendant?”

2. The parties are referred to at their original status for the sake of convenience in this second appeal.

3. The brief facts leading to filing of this second appeal as stated in the impugned judgment, are as under:

3.1 It is the case of the plaintiff that the property bearing Block Nos. 36, 38(A) and 38 (B) which includes Khata No.184 admeasuring about 0-30-35, 0-40-44 and 0-05-60 Hectare Prati Are respectively to considered as suit property. It is further the case of the plaintiff that the said properties are situated in the revenue estated of village Samlod, Taluka and District : Bharuch and are in the possession of plaintiff for more than 30 years and plaintiffs are residing at Samlod, Taluka & District Bharuch and by cultivating the said properties plaintiffs are earning their livelihood. It is further the case of the plaintiff that defendants are family members and nephews of plaintiff in support of the same, plaintiff has produced pedigree and has further averred that the grand father of the plaintiff and defendant i.e., deceased Ambalal Mahashankar Bhatt was having agricultural land in village Chorbhuj Taluka Karjan, District Vadodara and at Village Samlod Taluka & District : Bharuch. Further it is the case of the plaintiff that the legal heirs of deceased Ambalal Mahashankar Bhatt were the parties in the suit and Shri Ramanbhai Ambalal Bhatt had left for heavenly abode without any issue as he was unmarried. It is further contended that on dated 22/05/1980 a contract had been entered into the between the parties in presence of plaintiff's father and it was agreed by them that in the property situated at village Chorbhuj plaintiff's father has withdrawn its right in favour of defendants, same way property situated in Village Samlod which was in the joint names of plaintiffs and defendants in which, defendant has to withdraw the right in favour of plaintiff for which, whenever necessity arise defendants were to do favor to plaintiff and the remaining property of Shri Ramanbhai Ambalal Bhatt was to be divided equally. Furthermore, it is the case of the plaintiff that as per the contract dated 22/05/1980, in the property situated at village Chorbhuj Taluka Karjan defendants have executed documents, on the basis of which, the said properties become in the names of defendants. It is the alleged by the plaintiff that defendants should have withdrawn their right in favour of plaintiff in the properties situated at village Samlod, but they did not followed the same, as the plaintiff since the year 1980 or prior to it, they were cultivating the said land and was in its possession. It is further mention by the plaintiff that in revenue records and in form No.7x12 the names of defendants are mutated but as per the contract dated 22/05/1980 the names of the defendants would have been deleted but defendants are not done so, therefore, it is alleged by the plaintiff that on the sole basis of revenue records defendants are trying to sale away the suit property, therefore, to restrict the defendants by selling away the suit property as well as restrain the defendants in creating hindrance to the plaintiffs in its peaceful poss