The burden of proof lies upon the person who asserts the fact, and the involvement/formation of a substantial question of law is essential to entertain a second appeal.

JUDGMENT

1. Appellants-plaintiff have preferred this second appeal under Section 100 of Code of Civil Procedure, assailing the judgment and decree dated 18.09.2021 passed in Civil First Appeal No.11/2021 by the Court District Judge, Jhunjhunu (Raj.), affirming the judgment and decree dated 11.09.2020 passed in Civil Suit No.53/2019 by the Court of Civil Judge, Jhunjhunu (Raj.) whereby and whereunder the civil suit for cancellation of the sale deed dated 8.1.1981 and permanent injunction has been dismissed on merits.

2. Heard learned counsel for appellant & perused the impugned judgments.

3. It appears from record that in relation to lands in question, one sale deed dated 8.1.1981, was executed by Shubhkaran, father of plaintiffs in favour of defendant No.1 Ram Kumar. Shubhkaran passed away in the year 2003 and thereafter plaintiffs have instituted the present civil suit for cancellation of that sale deed on 22.5.2019. Plaintiffs have pleaded that sale deed dated 8.1.1981 is a forged document & signature of their father thereupon is also forged and further the sale deed is void in view of Section 42(a) of the Rajasthan Tenancy Act, 1955 (hereinafter referred as ’the act of 1955’). Plaintiffs pleaded that after death of their father, the lands in question were mutated in their favour and they are in possession of lands in question.

4. Both courts below have considered plaintiffs’ case on merits and have concurrently held that plaintiffs could not prove their possession over the lands in question. In relation to Section 42(a) of the act of 1955, it has been observed that such provision has been deleted from the statue w.e.f 11.11.1992. The courts below have also considered the aim and object of framing the provision and for deleting the provision subsequently. In relation to the allegation of plaintiffs that signature of their father Shubhkaran on the sale deed in question, is forged, it has been observed that no evidence has been produced to prove such allegations. Merely, on account of fact that stamp papers of the sale deed, were not purchased by the vendor Shubhkaran, the sale deed cannot be declared as illegal and forged.

5. Learned counsel for appellants has vehemently argued that since the provision of Section 42(a) of the act of 1955 has been deleted w.e.f 11.11.1992 and at the time of execution of the sale deed in question dated 8.1.1981, this provision was in operation, therefore, the sale deed stands void being executed in violation of such provision.

6. Though, there is no evidence on record to show the fact that the sale deed was executed in violation to the provision of Section 42(a) of the act of 1955, the first appellate court has further placed reliance upon judgment of Hon’ble the Supreme Court in case of Prem Singh Vs. Birbal [2006 (5) SCC 353], wherein it has been held that in relation to registered documents, there is a presumption in law that the registered document was executed in accordance with law. The first appellate court has observed that initially burden to prove the sale deed as void, was on plaintiffs, who could not discharge their burden.

7. This Court, having heard counsel for appellants, is of considered opinion that both courts below have appreciated/re-appreciated the grounds to challenge the sale deed dated 8.1.1981 and on merits, grounds have not been found proved. As per Section 101 of the Evidence Act, it is a fundamental principle of law that the burden of prove is lies upon the person, who asserts the fact and in absence of his evidence, that fact be held to be non-proved. Thus, the principle of burden of prove is inflexible. Once, plaintiffs came out with a specific case that the sale deed is forged document as the signature of their father is forged one, it was for plaintiffs to prove such allegation of forgery. Both courts below have concurrently observed that there is no evidence on record to prove such allegations.

8. As far as the claim of plaintiffs to declare the document of sale deed as