JUDGMENT : P.K. Misra, J. - Defendants 1 and 3 are the appellants against a reversing decision. The suit for declaration of title, confirmation, or in the alternative, recovery of possession and permanent injunction in respect of Ac. O. 57 decimals of land from the northern side of Khata No. 56, Plot No. 49 with an area of Ac. 4. 141 decimals of land was dismissed by the trial Court. In appeal, the suit was decreed by the lower appellate Court. 2. It is not disputed that Laxmidhar Mohanty, the deceased husband of defendant. No. 1 and Bira Mohanty, the deceased father of defendant No. 2, being two brothers were jointly recorded as Sthitiban raiyats in respect of Ac. O. 36 decimals of land in Khata No. 55. It is the further admitted case of both the parties that in an amicable partition, the northern portion of Ac. 4. 14? decimals of land was allotted to Laxmidhar and the balance was allotted to allotted to Bira and after the death of Laxmidhar, defendant No. 1 inherited the northern portion including the present disputed land and the southern portion devolved upon defendant No. 2. It is claimed by the plaintiff that defendant No. 1 being in urgent need of money sold Ac. 14? decimals of land including the disputed land to the plaintiff under a registered sale deed dated 23-9-1963 for a consideration of Rs. 1,000/- out of which Rs. 800/- had been paid prior to execution of sale deed whereas the balance amount of Rs. 200/- was paid on the date of execution of the sale deed. It is further alleged that defendant No. 2 prevailed upon defendant No. 1 to cancel the said sale deed by a document dated 27-9-1963, but in spite of the said cancellation, the plaintiff continued in possession. Subsequently, the plaintiff sold Ac. 1.07 decimals of land out of his purchased land to defendant No. 2 on 26-12-1972 and some more lands to other purchasers, namely Anadi Barik. Bhagirathi Parida and Ratha Parida. Subsequently defendant No. 1 executed a sale deed dated 24-2-1975 is respect of the entire land which was already sold to the plaintiff. as defendant No. 3 threatened to dispossess the plaintiff, the suit was filed in respect of the present disputed land. 3. Bhagirathi Parida and Ratha Parida. Subsequently defendant No. 1 executed a sale deed dated 24-2-1975 is respect of the entire land which was already sold to the plaintiff. as defendant No. 3 threatened to dispossess the plaintiff, the suit was filed in respect of the present disputed land. 3. Initially defendants 1, 2 and 3 filed written statements denying the main contentions in the plaint and claimed that the sale deed in favour of the plaintiff was obtained fraudulently without any consideration and had not been acted upon. Subsequently, however, defendant No. 2 changed his side and filed another written statement substantially supporting the plaintiff's case. 4. The trial Court found that the sale deed (Ext. 4) was not genuine, had not been validly executed and was without any consideration. It was also found that the description of the suit land was indefinite and as such no effective decree could be passed. It further found that the plaintiff had failed to prove that he was in possession of the disputed lard within twelve years of the institution of the suit and the suit was barred by limitation. On the aforesaid findings, the suit having been dismissed, an appeal was filed by the plaintiff. The lower appellate Court accepting the contention of the plaintiff held that Ext. 4 had been duly executed and was supported by consideration and since the suit was based on title, the title having been established, the plaintiff was not required to prove the possession. On the aforesaid findings, the suit was decreed. 5. In this appeal, it is contended on behalf of the appellants that defendant No. 1 being an illiterate lady, in the absence of any positive evidence on record, the lower appellate Court should have held that due execution of Ext. 4 had not been proved and the finding of the lower appellate Court is based on error of record and non-consideration of material aspects. It is also contended that the lower appellate Court having not disturbed the finding of the trial Court to the effect that the disputed property was not identifiable, the decree of the appellate Court is incapable of being executed and as such should be set aside. 6. There is no dispute that defendant No. 1 is an illiterate lady and she had put her L. T. I. in Ext. 4, the sale deed, in favour of the plaintiff. 6. There is no dispute that defendant No. 1 is an illiterate lady and she had put her L. T. I. in Ext. 4, the sale deed, in favour of the plaintiff. Law is well-settled that irrespective of question of fraud or undue influence a person relying upon a transaction with an illiterate woman has to prove due execution of the document evidencing the transaction. In other words, in the present case, since the plaintiff relied upon the sale deed in his favour by defendant No. 1 who was an illiterate lady, the burden was on him to prove that defendant No. 1 had executed the sale deed after being aware of the import of the transaction. The lower appellate Court relying upon Ext. 2. the deed of cancellation, came to the conclusion that the execution of Ext. 4 had been admitted by defendant No. 1 in the said deed of cancellation. As a matter of fact, the aforesaid reasoning of the lower appellate Court is based on error of record. Ext. 2, the deed of cancellation, merely goes to show that defendant No. 1 was aware that a sale deed had been obtained from her but the recitals in Ext. 2 rather fortified the fact that, in fact, defendant No. 1 had put her L. T. I. in Ext. 4 without truly understanding the import of Ext. 4. The deed of cancellation rather indicates that there was some proposal for exchange of lands between the defendant and the plaintiff. Merely because defendant No. 1 had put her L. T. I. in Ext. 4, it could not have been assumed by the lower appellate Court that she had executed the document after understanding the contents thereof. Though the plaintiff claimed that the document (Ext. 4) had been scribed as per the instruction of defendant No. 1, in the absence of any other materials, the trial Court was justified in coming to the conclusion that due execution of Ext. 4 had not been established. The non-examination of the scribe definitely calls for drawal of an adverse inference as had been done by the trial Court. The lower appellate Court ignoring the aforesaid important aspect reversed the finding of the trial Court. The lower appellate Court also relied upon the endorsement of the Sub-Registrar In Ext. 4 regarding the execution of the document. The non-examination of the scribe definitely calls for drawal of an adverse inference as had been done by the trial Court. The lower appellate Court ignoring the aforesaid important aspect reversed the finding of the trial Court. The lower appellate Court also relied upon the endorsement of the Sub-Registrar In Ext. 4 regarding the execution of the document. Such endorsement though admissible in evidence in proof of execution of the document cannot overweigh the other circumstances in the present case. Apart from the non-examination of the scribe the very fact that document was cancelled within two |o three days after its execution indicates that defendant No. 1 did not intend to sell away her entire property and the possibility that, in fact, it was intended to be an exchange, looms large. That apart, the trial Court also found that in spite of the so-called sale deed, defendant No. 1 continued in possession of the disputed land and the story of delivery of possession, as set up by the plaintiff had been discarded. The lower appellate Court has not at all considered as to whether possession was delivered to the plaintiff or not. After scanning the materials on record regarding possession, In concur with the finding of the trial Court that in fact, defendant No. 1 continued to be in possession in spite of the so-called sale deed. PW 4, who according to the plaintiff, had gone to the office of the Sub-Registrar, has pleaded his ignorance about the execution of the sale deed by defendant No. 1. PW 2, who has vaguely stated about the execution of a document does not appear to be an attesting witness and as such his evidence has been rightly discarded by the trial Court 7. It is no doubt true that there is an endorsement of the Sub-Registrar that Rs. 200/- stated to be the balance consideration had been paid to defendant No. 1 at the time of registration of the document. The receipt of Rs. 200/- at that stage is not inconsistent with the case of the defendant that the said amount was for the purpose of paying the differential amount for the exchange as agreed upon by the parties. Keeping in view the aforesaid circumstances, I am unable to accept the finding of the lower appellate Court regarding the duo execution of Ext. 200/- at that stage is not inconsistent with the case of the defendant that the said amount was for the purpose of paying the differential amount for the exchange as agreed upon by the parties. Keeping in view the aforesaid circumstances, I am unable to accept the finding of the lower appellate Court regarding the duo execution of Ext. 4 since the finding of the lower appellate Court is vitiated by non-applicatlion of the correct principle of law applicable to transactions by illiterate women and non-consideration of the relevant materials on record and the reasonings given by the trial Court on this aspect. 8. The trial Court while dismissing the suit had found that the identity of the lands had not been clearly spelt out in the plaint or in the avidence and the suit was liable to be dismissed on that score. Though the tower appellate Court does not appear to have dealt with that point prima facie. I do not agree with the finding of the trial Court since the plaintiff had sought for declaration of title and recovery of possession in respect of Ac. 0.57 decimals of land from out of Plot No. 49 from the northern side. However, in view of the finding already recorded to the effect that due execution of Ext. 4 had not been established and on that score the suit is liable to be dismissed, it is unnecessary to delve into this question any further. 9. In the result, the appeal is allowed and the judgment of the lower appellate Court is set aside. However, the parties are directed to bear their own costs throughout. Final Result : Allowed