The burden of proof for establishing the existence of an alleged agreement lies with the party claiming its existence.

Abhay M. Naik, J.

1. This appeal has been preferred against the judgment dated 10-2-2000 passed by the Court of First Additional District Judge, Guna in Civil Appeal No. 28-A/1998.

2. Facts relevant for the purpose of this appeal are that plaintiff/respondent No. 1 instituted a suit for specific performance and perpetual injunction, mainly with the allegations that defendant/appellant No. 1 was recorded Bhumiswami of the land comprised in Survey No. 170/1/2 in area 0.490 hectare situated in Village Dhanankhedi, Tehsil and District Guna. On mediation of Jalam Singh, father of defendant/appellant No. 1, appellant No. 2 entered into an agreement of sale in favour of plaintiff in respect of the suit land for a consideration of Rs. 10,000/-. Initially, agreement was oral and possession was delivered to the plaintiff pursuant thereto. On 16-12-1994, an agreement was reduced into writing and entire consideration was received by the appellant No. 2 in cash. Plaintiff was short of expenses of registered document, therefore, it was agreed that the plaintiff after harvesting of crops in the month of May, 1995 would get the sale deed executed from appellant No. 2. Negotiations in respect of agreement were made by Ratanlal Kirar-husband of plaintiff on her behalf and consideration was also paid by him on plaintiff's behalf to the appellant No. 2. Similarly, possession of the suit land was also obtained by plaintiff's son on her behalf. On 23-7-1995, appellant No. 2 asked the plaintiffs husband to remove his possession and threatened him of dispossession, in case possession is not removed. It is further stated in the plaint that mutation in favour of plaintiff was already made by Patwari on the basis of sale agreement which was well within the knowledge of appellant No. 2 before he purchased it from appellant No. 1. Thus, both the defendants/appellants were and are bound by the sale agreement dated 16-12-1994. Therefore, plaintiff instituted a suit against defendants/appellants for specific performance and perpetual injunction, restraining them from interfering into plaintiff's possession. In alternative plea, refund of consideration was sought.

3. Defendants/appellants submitted a joint written statement, refuting thereby allegations contained in the plaint. It was denied that appellant No. 2 entered into an agreement of sale in favour of the plaintiff and had delivered possession of the suit land in pursuance of it. Alleged written agreement dated 16-12-1994 was also denied. It was further denied that a sum of Rs. 10,000/- was received by defendant No. 2 from plaintiff.

4. In additional plea, it was stated that appellant No. 2 had already entered into an agreement of sale in favour of appellant No. 1 on 16-8-1994 and pursuant thereto a registered sale deed was executed by him in favour of appellant No. 1 on 14-3-1995, therefore, the alleged subsequent agreement in favour of plaintiff is void and ineffective.

5. It is pertinent to note that it was pleaded in Para 3 of the written statement that appellant No. 2 puts his thumb impression being illiterate. In case, if an agreement has been got prepared by the plaintiff taking undue advantage of illiteracy of appellant No. 2, the same is not binding and is not enforceable. Although, the mutation in favour of plaintiff was admitted by defendants, it was stated that the same could not have been effected on the basis of merely an agreement. This apart, it was stated that defendant No. 1 has been in possession of the suit land since 16-8-1994 and, possession could not have been delivered on 16-12-1994 to the plaintiff as alleged in the plaint.

6. After framing of issues, plaintiff examined herself (P.W. 1), Ratanlal (P.W. 2), Ramgopal (P.W. 3) and Shyamlal (P.W. 4) in her evidence. She produced agreement dated 16-12-1994 (Exh. P-1) in her documentary evidence.

7. Defendants/appellants did not adduce either documentary or oral evidence.

8. Learned Trial Judge vide judgment and decree dated 26-8-199