JUDGMENT 1. This is a second appeal by the plaintiffs under section 100 of the Code of Civil Procedure (to be called as 'Code' only). 2. Late Mathura Prasad had two sons. Satish Kumar (A 1) and Ramesh Kumar (who died in year 1988 whose widow Smt. Shashikala is A 2). Late Mathura Prasad had executed a sale-deed on 15.9.1960 in favour of Dayashankar son of Ramnath Choubey for Rs. 2,000/-. A rent-note was also executed by late Mathura Prasad on monthly rent of Rs. 40/-. An agreement for reconveyance was simultaneously executed which was renewed on 14.9.1962. On 9.1.1963 said Dayashankar son of Ramnath Choubey and late Mathura Prasad executed a sale-deed in favour of Jagdamba Prasad (R 1) for Rs. 2,500/-. 3. As per plaint, late Mathura Prasad required money for marriage of his daughter. He had taken a loan of Rs. 2,000/- from Dayashankar son of Ramnath Choubey the sale-deed dated 15.9.1960 was executed as a security for repayment of loan. However, late Mathura Prasad could not arrange money for repayment. He had to approach Jagdamba Prasad (R 1) for loan. Dayashankar and late Mathura Prasad executed the sale-deed in favour of Jagdamba Prasad (R 1) and loan of Dayashankar was paid. Jagdamba Prasad (R 1) had agreed to reconvey the house on payment of Rs. 3,300/-. It was claimed that Jagdamba Prasad (R 1) had agreed to take Rs. 50/- as interest which was being paid as rent by the tenant Kailash Chandra Choubey (R 3). Late Mathura Prasad always requested for re-conveyance yet Jagamba Prasad (R 1) avoided. Jagdamba Prasad (R 1) somehow got mutated the name of Dilip Kumar (R 2) to the suit house and a quit notice was given on 6.9.1989 to Kailash Chandra Choubey (R 3) claiming that Satish Kumar (A 1) and his brother Ramesh Kumar (since dead) were sub-tenant of Kailash Chandra Choubey (R 3), hence the suit for execution of sale-deed after taking Rs. 3,300/-, for declaration that any conveyance by Jagdamba Prasad (R 1) in favour of Dilip Kumar (R 2) was null and void and that Kailash Chandra Choubey (R 3) is really a tenant of the appellants. 4. On the other hand, both Jagdamba Prasad (R 1) and Dilip Kumar (R-2) in their joint written statement disclaimed that either of the sale-deeds executed on 15.9.1960 or 9.1.1963 was mere security for loan. 4. On the other hand, both Jagdamba Prasad (R 1) and Dilip Kumar (R-2) in their joint written statement disclaimed that either of the sale-deeds executed on 15.9.1960 or 9.1.1963 was mere security for loan. It was claimed that sale in favour of Jagdamba Prasad (R 1) was an out and out sale with facility for re-conveyance. Late Mathura Prasad had sold his right of conveyance also. Late Mathura Prasad was tenant of Jagdamba Prasad (R 1) on monthly rent of Rs. 50/-. On 16.12.1965 Satish Kumar (A 1) and his bother Ramesh Kumar (since dead) had paid Rs. 1,800/- as arrears of rent and Rs. 170/- as cost of extra facility. An agreement for re-conveyance was reduced on 16.12.1965. It was claimed that both the brothers had vacated the suit house on 1.6.1967 and Kedar Nath Choubey, the brother of Kailash Chandra Choubey (R 3) was inducted as a tenant on monthly rent of Rs. 50/- which was enhanced to Rs. 100/- in due course. Anyhow it was claimed that Kailash Chandra Choubey (R 3) had left the suit house in August 1989 inducting the appellants as his sub-tenants. It was further claimed that suit for specific performance of contract was badly barred by limitation. Prices of immovable property had risen and now it will be unfair and inequitable to grant any such specific performance. 5. After record of evidence, the trial Court held that sale-deed dated 9.1.1963 had not conveyed any title to Jagdamba Prasad (R 1). Sale-deed was executed as a security for loan. Anyhow on 16.12.1965 Jagdamba Prasad (R 1) had agreed to reconvey the house on payment of Rs. 3,300/-. However, the appellants were not vigilant to get executed the sale-deed in their favour in time. Kailash Chandra Choubey (R 3) has not proved to be a tenant of appellants. Anyhow the civil suit for specific performance of a contract dated 16.12.1965, filed on 24.10.1989 was barred by limitation and thus the civil suit was dismissed. The first appellate Court held that the sale-deed dated 9.1.1963 was an out and out sale in favour of Jagdamba Prasad (R 1). On 16.12.1965 Jagdamba Prasad (R 1) had merely conceded a facility of re-coveyance which was not utilised by the appellants within time. Thus, the decree of trial Court was confirmed. 6. The first appellate Court held that the sale-deed dated 9.1.1963 was an out and out sale in favour of Jagdamba Prasad (R 1). On 16.12.1965 Jagdamba Prasad (R 1) had merely conceded a facility of re-coveyance which was not utilised by the appellants within time. Thus, the decree of trial Court was confirmed. 6. On 2.3.2000, this Court admitted the appeal on following substantial questions of law : (i) Whether the lower appellate Court was right in reversing the finding of the trial Court that the sale deed executed in favour of Jagdamba Prasad dated 9.1.1963 was a nominal transaction? (ii) Whether the reasons given by the Court below for negativing the circumstances that the sale deed 'dated 9.1.1963 was not a loan transaction in the judgment are perverse? (iii) Whether the mistake in Court below by the counsel for the appellants in claiming the relief for specific performance of contract would negative the claim of the appellants? 7. Having heard the advocates of both the parties and perused the judgments of both the Courts below, I proceed to decide these questions in seriatim. 8. Despite bar of section 92 of the Evidence Act, it is well settled that oral evidence is admissible to prove that a document though executed was a nominal or sham document, Islzwar Das Jain v. Solzanlal ( AIR 2000 SC 426 ), relied upon the decision in Gangabai v. Chhabubai ( AIR 1982 SC 20 ), for the proposition that it is permissible for a party to a deed to contend that deed was not intended to be acted upon but was only a sham document. D.A. Desai, Judgment in later case was quoted: "The bar imposed by section 92 (1) applies only when a party seeks to rely upon the document embodying the terms of the transaction and not when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether 'and what is recorded in the document was intended to be of no consequence whatever. Such a question arises when the party asserts that there was a different transaction altogether 'and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether not recorded in the document was entered into between the parties". 9. This Court has also consistently held the same view in Lekhraj v. Sardar Sawall Singh ( 1971 JLJ 545 = AIR 1971 MP 172 (D.B.) Mandas v. Manbai ( 1972 JLJ 632 (D.B.). Kodu Satnami v. Ramdayal (1986 (I) MPWN 114). Balnt Khan v. Malzila Narayan Devi (1993 (1) Vidhi Bhaswar 93 to quote a few. However certainly execution of a registered document is a solemn affair and the party who alleges that he did not do what otherwise appears to have been done by him has to prove such allegation. Necessarily burden to prove such an allegation lies on the plaintiff, Subhra Mukherjee v. Bharat Coking Coal Ltd. ( AIR 2000 SC 1203 ). Thus, evidence led by the parties have to be scanned and appreciated in such perspective. However, It is also well settled that even if burden of proof lies on a party to the civil suit standard of proof in civil cases differs from what is required in criminal cases. In a civil case mere preponderence of probabilities is sufficient. Absolute certainty is not required. Section 3 of the Evidence Act defines the word 'Proved' in the following language :, 'Proved" -- A fact is said to be proved, when after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case to act upon this supposition that it exists". Thus of course what a reasonable and prudent man would in given facts and circumstances consider to have happened has to be taken as proved. Best says:-- "There is a strong and marked difference as to the effect of evidence in civil and criminal proceedings. Thus of course what a reasonable and prudent man would in given facts and circumstances consider to have happened has to be taken as proved. Best says:-- "There is a strong and marked difference as to the effect of evidence in civil and criminal proceedings. In the former a mere preponderence of probability due regard having had to the burden of proof, is a sufficient basis of decision, but in the latter specially when the offence charged amounts to a treason or felony, a much higher degree of assurance is required section 95, while civil cases may be proved by a mere preponderence of the evidence, in criminal case the prosecution must prove the charge beyond reasonable doubt. Mancini v. D.P.P. 1942 Act. 11 and Woolmington v. D.P.P. 1935 Act 462. 10. The following are the most potent facts and circumstances of the present case: -1. As per Ex. D-1 the sale deed, late Mathura Prasad had executed a sale deed on 15.9.1960 for Rs. 2,000/- in favour of Daya Shanker. He had executed a rent note on 16.9.1960. Daya, Shanker had executed an agreement for reconveyance. Such reconveyance agreement was renewed on 14.9.1962. Satish Kumar (PW 1) and his witnesses Kalash Chandra Choubey (PW 2) had claimed that the same was a loan transaction. Jagdamba Prasad (DW 1) R.I., in paras 1.7 and 12 had, admitted in clear words that this was, a loan transaction: 2. Exhibit D-1 was executed by late Mathura Prasad and Daya Shanker jointly. This time consideration was Rs. 2,500/- out of which Rs. 2,000/- were taken by Daya Shanker and Rs. 500/- were taken by late Mathura Prasad. Though ostensibly this was a sale deed yet obviously Satish Kumar (A 1) and his brother Ramesh Kumar (since deceased) had paid Rs. 1,970/- on 16.12.1965 vide Ex. D-2 that amount being called as rent @ 50 per month for three years and had agreed to pay Rs. 50/- per month as rent. In effect an agreement for reconveyance of the suit house on payment of Rs. 3,300/- was also written. Obviously the nature of this transaction was similar to the first transaction entered into between Late Mathura Prasad and Daya Shanker on 15.9.1960. There has been no reason to suppose that the essential nature of this clear transaction was different in any way from the previous transaction: 3. 3,300/- was also written. Obviously the nature of this transaction was similar to the first transaction entered into between Late Mathura Prasad and Daya Shanker on 15.9.1960. There has been no reason to suppose that the essential nature of this clear transaction was different in any way from the previous transaction: 3. Obviously Late Mathura Prasad and afater his death his sons Satish Kumar (A 1) and Ramesh Kumar (Since deceased) continued in possession of the suit house. Though it is claimed that they vacated the suit house on 1st June 1967 but however Jagdamba Prasad (DW 1) is the single witness on the point. It is against all probability that Satish Kumar (A 1) or Ramesh Kumar (since deceased) would have vacated the suit house on 1.6.1967 when there was already an agreement Ex. D-2 dated 16.12.1965 in existence which permitted to repurchase the suit house on payment of Rs. 3,300/-. 4. Obviously Satish Kumar (A 1) and Ramesh Kumar (since deceased) got renewed the lease from nazul of the land on which suit house was situate on 22.4.1989 vide Ex. P-3. Names of Raj Bahadur and his son Late Mathura Prasad continued in assessment list vide Ex. P-8 from 1959-60 to 63-64 vide Ex. P-7 from 1971-72 to 75-76, Ex P-6 from 1964-65 to 1969-70, Ex. P-5 from 76-77 to 1980-81 and EX.P-4 from 1979-80 to 1983-84. Respondents attempted to get their names mutated in said list only on 4.8.1988 vide Ex. D-6 in other words there was no mutation for about 25 years or odd after execution of sale deed. During all this period Late Mathura Prasad and after his death Satish Kumar (A 1) and Ramesh Kumar (Since deceased) continued to pay the municipal taxes: 5. Suit house is situate in Hanuman, Phootatal Ward in Jabalpur city. Its size is 30'x5'3" = 1506 sq. feet. Some building was also there on such plot. Vide Ex. P-9 the market value of suit house could be about Rs. 41,200/- in year 1965. Satish Kumar (PW 1) had proved such estimate in para 7 of his statement. There has been no effective cross examination on the point. On 20.2.1995 the advocate for respondents admitted this estimate Ex. P-9 without any reservation whereupon the appellant closed their evidence. The learned first appellate Court has given a long tortuous argument for disbelieving the same. Satish Kumar (PW 1) had proved such estimate in para 7 of his statement. There has been no effective cross examination on the point. On 20.2.1995 the advocate for respondents admitted this estimate Ex. P-9 without any reservation whereupon the appellant closed their evidence. The learned first appellate Court has given a long tortuous argument for disbelieving the same. He has concluded that such report was admitted by the advocate merely because the appellants were taking adjournments for their evidence. Obviously such explanation of respondents was past belief. No reasonable man could have accepted such an explanation. Besides this it is note worthy that the suit house was rented out for Rs. 50/- per month which clearly shows that its value was much more than only Rs. 2500/- or Rs. 2,000/-. Jagdamba Prasad (DW. 1) in Para 2 had admitted that he had spent Rs. 25.000/- between 1968-73 in rebuilding one room and repairs of the suit house. In para 11 he had reiterated such a claim of course it is past belief that the house which was purchased with plot of about 1506 sq. feet for Rs. 2,500/- would require such vast expenditure in rebuilding and repairs. Obviously any reasonable man would come to the conclusion that the market value of the house with plot was much above Rs. 2,500/- on 9.1.1963 when Ex. D. 1 was executed. 6. Kailash Chandra Chouhey (PW. 2) had claimed himself to be a tenant of late Mathura Prasad. He had handed over the vacant possession of the house to Satish Kumar (A 1) and his brother in year 1989 when he vacated the same. Such a conduct of tenant has also confirmed the theory of appellants. 7. The trial Judge has accepted such theory of the appellants. However the learned first appellate Court ignored all these relevant facts and, circumstances of the case and has given a naive and tortuous argument to explain away the admission of advocate of the respondents on 20.2.1995. 11. Obviously the first appellate Court had not only ignored material evidence and circumstances of the case which if he considered would have come to an opposite finding. Obviously his conclusions were perverse and arbitrary. He has misread the evidence leading to miscarriage of justice. Rohini Prasad v. Kastoor Chand ( AIR 2000 SC 1283 ) and lshwar Das Jain v. Sohanlal. AIR (2000 SC 426). Obviously his conclusions were perverse and arbitrary. He has misread the evidence leading to miscarriage of justice. Rohini Prasad v. Kastoor Chand ( AIR 2000 SC 1283 ) and lshwar Das Jain v. Sohanlal. AIR (2000 SC 426). Obviously such a finding has to be set aside. 12. Actually when the trial Court had found that the sale dated 9.1.1993 was nominal and no title was conveyed to Jagdamba Prasad (RI) under the sale deed, he should have found that Ex. D.2 agreement was also nominal and sham. Jagdamba Prasad (RI) having no title to the suit house was not in a position to execute any sale deed and convey any title to the appellants which he himself did not have. Actually the Courts below were mislead in negativing the claim of the appellants as they had prayed specific performance of the agreement dated 9.1.1963. Suit for such relief filed on 25.10.1989 i.e. after 24 years of its execution was clearly barred by limitation. Obviously it was a mistake on the part of the advocate of appellants to have sued for specific performance of a contract. He should have merely sued for declaration of title. However, if the plaint of the appellants is read as a whole it is clear that they had sought a declaration of their title also though they were not specific on the point. 13. Ordinarily cases are decided on pleadings of the parties and only reliefs can be granted as are claimed by the plaintiff. However, in cases where the real relief is camouflaged in verbiage, the Court can look to the real intention of the parties lifting the veil of jargon. Hence, a decree for declaration could have also been given. 14. Obviously the respondents No. 1 and 2 had not claimed return of their loan. They had not claimed that there was any mortgage. There is no question of return of money now. Respondents No.1 and 2 have gained sufficient benefit from the appellants. All these three questions answered accordingly. 15. As such this appeal is allowed. It is hereby declared that the sale deed dated 9.1.1963 executed by Late Mathura Prasad in favour of Jagdamba Prasad (RI) was sham and nominal document and did not convey any title to him. However, both the parties shall bear their own costs of both the Courts below. Advocate's fee as per schedule.