The burden of proof lies upon a person impugning a transaction to show that it is a sham or fraudulent one.

Tarlok Singh Chauhan, J.

1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure has been filed by the defendants/appellants against the judgment and decree dated 01.04.2004 passed by learned District Judge, Bilaspur in Civil Appeal No. 82 of 1997 whereby he set-aside the judgment and decree dated 27.3.1997 passed by learned Senior Sub Judge, Bilaspur, District Bilaspur, H.P. in Case No. 215-1 of 1995/90 and thereby decreed the suit of the plaintiff/respondent.

For convenience, the parties are referred to as plaintiff and defendants.

2. The facts as are necessary for determination of this appeal are that the plaintiff filed a suit for permanent prohibitory injunction restraining the defendants from causing interference in his possession over the land as detailed in the head note of the plaint (hereinafter referred to as the ‘suit land’). Alternatively, it was prayed that in case the defendants succeeds in dispossessing the plaintiff from the suit land during the pendency of the appeal, then a decree for possession be passed accordingly. It was averred that Smt. Nihatu Devi paternal aunt of the plaintiff was married to Sita Ram and when the plaintiff was two years old, he was adopted by Sita Ram and Nihatu Devi as per the ceremony and since then he had been brought up in the home by his adoptive parents. It was further averred that on 19.6.1987 Sita Ram executed a Will of his estate in favour of his wife Nihatu Devi as also the plaintiff. Under the Will, Smt. Nihatu Devi was given a limited right to enjoy the property till her death and in the event of death, the said property was to revert to the plaintiff. It was further averred that during the minority of the plaintiff, defendant Udho Ram might have assisted late Sh. Sita Ram in cultivation of the land, but as soon the plaintiff attained majority, he started cultivating the land by himself. Defendant Udho Ram allegedly filed a false case against the plaintiff as also Sita Ram, which terminated in a compromise in which Udho Ram agreed not to dispute the Will executed in favour of the plaintiff on payment of Rs.6000/- in lump sum. Resultantly, that suit was dismissed as having been compromised and the defendants also admitted the possession of the plaintiff qua the suit land on receipt of the aforesaid amount.

3. Defendant Udho Ram was stated to have abducted Sita Ram, who was later on stated to have been murdered. Nihatu Devi, too expired and the plaintiff claimed to have performed her last rites. As per the plaintiff, while he was cultivating the suit land on 3.6.1990, the defendants came and threatened to take forcible possession of the suit land and that led to filing of the instant case for declaration and injunction.

4. The defendants contested the suit by filing written statement wherein preliminary objections regarding maintainability, cause of action, locus-standi, non-joinder and mis-joinder of necessary parties, valuation etc. were taken. On merits, it was pleaded that the suit land had been purchased by them vide sale deed dated 22.8.1989 and 16.9.1989 respectively. The defendants also disputed the adoption of the plaintiff by Sita Ram and further disputed his right, title and interest over the suit land and even the execution of the Will in his favour was disputed and it was further averred that in case any such document as alleged by the plaintiff is produced then the same is forged and fabricated one. The compromise and the agreement were also questioned and disputed. The defendants therefore prayed that since Sita Ram had sold the suit land for consideration Rs.45,000/-, therefore, the plaintiff has no right, title and interest whatsoever over the suit land and as such, prayed for dismissal of the same.

5. The plaintiff filed replication wherein the contents of the written statement were controverted and those of the plaint were reiterated.

6. On 19.11.1991 the learned trial Court framed the following issues:

1. Whether the plaintiff is