IMPORTANT POINT
(1) Burden of Proof – Burden of persuasion is different from evidential burden or burden of production of evidence.
(2) Agreement to sell – Burden of proof is on defendants to prove genuineness of their signatures.

JUDGMENT

The instant appeal has been preferred by the defendants- appellants against the judgment and decree passed by the 5th Additional Judicial Commissioner, Ranchi in Title Appeal No. 06 of 1991 confirming the judgment and decree dated 30.11.1990 passed by the Sub-Judge-V, Ranchi decreeing Title Suit No. 108 of 1988.

2. The brief facts leading to the present appeal is that the plaintiff- respondent filed suit for specific performance of contract with respect to an agreement for sale of 4 Kathas of land in Plot No. 2101 of Khata No. 75 regarding which agreement for sale was executed on 02.03.1985 on receipt of an advance of Rs.15,000/- per katha against a total price of Rs.40,000/- at the rate of Rs.10,000/- per katha by defendants Ganga Sao and Sadhu Sao, which was their ancestral property and they had acquired their separate share and came in separate possession on partition. The defendants out of their share had sold 1/4th kathas of Plot No.2101 of aforesaid Khata No.75 to Smt. Manju Singh by a registered deed of sale in 16.7.1985 and made reference to the partition in the deed of sale. In pursuance to the agreement, possession was given to the plaintiffs and the defendants agreed to execute the sale deed within two months after obtaining permission from the competent authority under Urban Land Ceiling Act. It is further averred on behalf of the plaintiffs that the defendants did not abide by the agreement and consequently legal notice was served on the defendants on 25.11.1986.

3. The defendants appeared and contested the suit mainly on the ground that the suit was bad for non-joinder of necessary parties and according to them unless Bhola Sahu, Dahru Sahu and all sons of Aman Sahu were made parties to the suit, it could not proceed, as being sons of Sadhu Sao and Ganga Sao who were the members of Hindu Joint Family were necessary parties there had been no partition. All the heirs of the recorded tenant Jagarnath Mahto jointly held and processed the suit land and other land of Khata No. 75. Further plea of the defendants is that they are illiterate persons and they have been subjected to fraud, coercion and misrepresentation by Manju Singh and her men one of whom is the plaintiff and without getting the alleged deed dated 16.07.1985 read over and explained to the defendants obtained their signatures at Calcutta under coercion. In paragraph-12 of the written statement there is denial of having entered into a sale for 4 kathas of Plot No. 2101 under Khata No. 75 to the plaintiffs but in the same breath it has been asserted that if there is any such agreement, the same is illegal, null and void and not binding on the defendants. It has also been denied that the plaintiffs have been put in possession.

4. On the basis of the pleadings of the parties, the following issues were framed and the suit was decreed in favour of the plaintiff on contest. Defendants Ganga Sao and Sadhu Sao preferred the appeal and the judgment of the trial court was affirmed and the appeal was dismissed

5. The second appeal has been admitted on the following substantial question of law:

“Whether the Court of appeal below has erred in law in placing the burden on the defendants to prove is genuineness of the signatures of the defendants on the alleged agreement?”

6. The agreement of sale dated 02.03.1985 executed by Sadho Sao and Ganga Sao in favour of Kumar Basant Naryan @ Basant Prasad with respect to the suit land, witnessed by Hriday Narayan Singh, scribe Krishna Narayan Prasad and Prabhu Nath Ojha, is the foundation of the present case filed for the specific performance of contract. This document has been proved on behalf of plaintiffs by Hriday Narayan Singh-P.W.2 which has marked as Exhibit-1 and identified by PW 7. It is argued that there are inherent contradictions in cross-examination of P.Ws. 2 and PW 7 Krishna Narayan Prasad, which suggests that the defendants did not sign and execute the agreement dated 02.03.1985. Although Prabhu Nath Ojha ha