JUDGMENT D.R. Deshmukh, J. 1. Being aggrieved by the dismissal of Civil Appeal No. 23-A of 2000 by the Additional District Judge, Mungeli vide judgment and decree dated 22-2-2002 affirming the judgment and decree dated 15-9-2000 passed by the Civil Judge Class I, Mungeli in Civil Suit No. 24-A of 1978 decreeing the suit for possession of suit land, the appellant/defendant has preferred this second appeal. 2. In this appeal, the following facts are not disputed: (A) The appellant/defendant is in possession of the suit land bearing Kh. No. 378/3 area 4.30 acre, Kh. No. 378/6 area 0.48 acres and Kh. No. 380/3 area 0.05 acre, total area 4.83 acres (hereinafter referred to as the 'suit lands') situated in Village Semarsal since 1973. (B) A subsequent suit (Civil Suit No. 19-A of 1989) filed by respondent-plaintiff Rajendra Kumar (legal representative of Chandan Bai brought on record during the pendency of Civil Suit No. 24-A of 1978) for declaration of title, possession and damages in relation to Kh. 163/8 in area 1.73 acres on the basis of a registered Will executed by Chandan Bai in his favour on 25-6-1979 was decreed in his favour. (C) Civil Suit No. 24-A of 1978 was instituted by Chandan Bai on the ground that the appellant/defendant had got a forged registered sale deed of the suit land executed in his favour on 21-9-1972. (D) First Appeal No. 82 of 1994 preferred by Ravi Shankar against the judgment and decree passed in Civil Suit No. 19-A/1989 was dismissed. It was held by the High Court of Madhya Pradesh that on 25-6-1979 Chandan Bai had willfully executed the Will in favour of Rajendra Kumar Dubey in presence of attesting witnesses and got the same registered whereunder the respondent/plaintiff Rajendra Kumar Dubey acquired title over the suit property, i.e., Kh. No. 163/8 area 1.73 acre, and therefore, the sale deed executed by Ravi Shankar, the appellant/defendant herein in favour of one Rajendra Kumar Pandey did not confer any valid title over land Khasra No. 163/8 area 1.73 acre. 3. Brief facts are that Chandan Bai, the original plaintiff in Civil Suit No. 24-A of 1978, filed a suit for possession simplicitor against Ravi Shankar, the appellant/defendant herein on the ground that on the basis of a forged registered sale deed for Rs. 14,500/- dated 21-9-1972, Ravi Shankar, had forcibly taken possession of the suit land in 1973. 3. Brief facts are that Chandan Bai, the original plaintiff in Civil Suit No. 24-A of 1978, filed a suit for possession simplicitor against Ravi Shankar, the appellant/defendant herein on the ground that on the basis of a forged registered sale deed for Rs. 14,500/- dated 21-9-1972, Ravi Shankar, had forcibly taken possession of the suit land in 1973. Chandan Bai sought relief for possession of the suit land. During pendency of the suit, Chandan Bai died. Rajendra Dubey, the respondent/plaintiff was substituted as her legal representative on the basis of a registered Will. 4. Appellant/defendant resisted the suit on the ground that Chandan Bai was in need of money to repay the bank loan and a loan taken from one Kamta Prasad as also for her personal and agricultural expenses, and therefore had, on 21-9-1972 after receiving consideration of Rs. 14,500/-, executed a registered sale deed in his favour and had put him in possession of the suit land. 5. In Civil Suit No. 24-A of 1978 the Civil Judge Class I, Mungeli granted a decree for delivery of possession of the suit land in favour of the respondent/plaintiff Rajendra Dubey and against Ravi Shankar, the appellant/ defendant herein on the ground that execution of sale deed by Chandan Bai in favour of Ravi Shankar was not proved. It also recorded a finding that the registered sale deed dated 21-9-1972 purporting to be executed by Chandan Bai in favour of Ravi Shankar was a forged document. Ram Khilawan and Panchram who were the attesting witnesses of the registered sale deed dated 21-9-1972 were not examined since they were dead. Evidence for the plaintiff in Civil Suit No. 24-A of 1978 commenced on 15-2-2000 on which date Chandan Bai, the original plaintiff in Civil Suit No. 24-A of 1978 was also not alive, therefore, she also could not be examined. Manharanlal Pathak, the scribe of the sale deed was also not examined by either party to the suit. 6. The First Appellate Court upheld the finding recorded by the Lower Court that the registered sale deed dated 21-9-1972 was a forged document. Manharanlal Pathak, the scribe of the sale deed was also not examined by either party to the suit. 6. The First Appellate Court upheld the finding recorded by the Lower Court that the registered sale deed dated 21-9-1972 was a forged document. It also held that on the basis of the judgment and decree passed in First Appeal No. 82 of 1994 by the High Court of Madhya Pradesh, Rajendra Dubey, the respondent/plaintiff herein had acquired title to the suit property on the basis of registered Will dated 25-6-1979 and was, therefore, entitled to possession of the suit land. 7. Shri P.P. Sahu, learned Counsel for the appellant/defendant argued that the Trial Judge instead of placing the initial burden on respondent/plaintiff to prove that the registered sale deed dated 21-9-1972 was a forged document, placed it on the appellant/defendant to establish genuineness of the said sale deed, which was contrary to law because the burden of proving even the non-existence of certain facts is on one who alleges such non-existence of facts. Chandan Bai did not enter the witness box till before her death on 6-5-1988 whereas the suit was filed by her on 30-3-1978. Neither Chandan Bai nor the respondent/plaintiff examined Ram Khilawan and Panchram, the attesting witnesses or the scribe Manharanlal Pathak in support of their contention that Chandan Bai did not execute the sale deed in favour of Ravi Shankar on 21-9-1972. In the absence of any evidence being adduced by Chandan Bai or Rajendra Kumar Dubey to prove the non-existence of facts in relation to the sale deed dated 21-9-1972, both the Courts below ought to have held that Chandan Bai or the respondent/plaintiff had failed to discharge the burden of proving that the sale deed dated 21-9-1972 was a forged document. Reliance was placed on Anil Rishi v. Gurbaksh Singh and M. Krishnaswami Naidu vs. Secretary of State represented by Collector of Tanjore and Ors. reported in AIR (30) 1943 Madras 15. 8. It was also contended that the sale deed dated 21-9-1972 being a registered document, there was a presumption of its genuineness which stood wholly unrebutted since the respondent/plaintiff did not adduce any evidence to discharge the initial burden on him. reported in AIR (30) 1943 Madras 15. 8. It was also contended that the sale deed dated 21-9-1972 being a registered document, there was a presumption of its genuineness which stood wholly unrebutted since the respondent/plaintiff did not adduce any evidence to discharge the initial burden on him. Learned Counsel for the appellant/defendant also submitted that Ravi Shankar was in possession of the suit land since 1973 and had not only testified in the Lower Court but had also adduced the evidence of Narayan Prasad (D.W. 2), which established the factum of execution of sale deed by Chandan Bai in favour of Ravi Shankar on 21-9-1972. It was also contended that the registered Will dated 25-6-1979 executed by Chandan Bai in. favour of Rajendra Prasad, the validity of which was upheld in Civil Suit No. 19-A of 1989 as also in First Appeal No. 82 of 1994, clearly revealed that Rajendra Kumar could, on the basis of the Will, succeed to the suit land only on proving that the sale deed dated 21-9-1972 was a forged document. It was, therefore, urged that the judgment and decree passed in favour of Rajendra Dubey in Civil Suit No. 19-A of 1989 and affirmed in First Appeal No. 82 of 1994 was of no avail to the respondent/plaintiff. 9. On the other hand, Shri Rajiv Shrivastava, learned Counsel for the respondent/plaintiff urged that the initial burden on the respondent/plaintiff to prove the non-existence of facts necessary to prove that sale deed dated 21-9-1972 was a forged document, was discharged by showing the existence of facts, which were already on record, and on the basis of preponderance of probability in his favour. In view of the fact that both the parties had led evidence relating to sale deed dated 21-9-1972, the question of burden of proof would loose its relevance. It was contended that on showing the existence of facts constituting heavy preponderance of probability in favour of non-execution of sale deed dated 21-9-1972 by Chandan Bai in favour of Ravi Shankar, the onus of proof shifted on the appellant/defendant. Evidence led by the appellant/defendant clearly revealed that no consideration had passed before the Sub Registrar, Mungeli. No evidence was led to show that Chandan Bai had taken loan from a bank or from Kamta Prasad or she required money for her personal or agricultural expenses. Evidence led by the appellant/defendant clearly revealed that no consideration had passed before the Sub Registrar, Mungeli. No evidence was led to show that Chandan Bai had taken loan from a bank or from Kamta Prasad or she required money for her personal or agricultural expenses. It was also borne out from the evidence of the appellant/ defendant that fiduciary relationship existed, due to which, Ravi Shankar was in a position to dominate the will of Chandan Bai who was an illiterate lady. There was nothing to show that Chandan Bai had affixed her thumb impression after understanding and agreeing to the contents of the sale deed dated 21-9-1972. Manharanlal Pathak, the scribe of the registered sale deed dated 21-9-1972 although available was not examined by the appellant/defendant. It was also strongly urged that the appellant/defendant had specifically pleaded in the written statement that on the death of Chandan Bai, he was entitled to her property by succession which clearly proved that there was no necessity for Chandan Bai to execute the sale deed dated 21-9-1972 in favour of Ravi Shankar for consideration. It was also argued that the testimony of Narayan Prasad (D.W.2) who was an interested witness being near relative of Ravi Shankar, that Ravi Shankar had, at the time of registry paid Rs. 14,500/- to Chandan Bai was falsified by an endorsement on the sale deed that the consideration was not paid in presence of the Sub Registrar, Mungeli. Reliance was placed on Ramjan Khan and Ors. vs. Baba Raghunath Dass and Ors. reported in AIR 1992 MP 22, in support of the contention that where an illiterate person had affixed his thumb impression to a document, the onus of proof that the document was properly explained to the person so as to make him understand its true import is on the person relying on the document. Lastly, it was urged that finding recorded in Civil Suit No. 19-A/1989 and affirmed in First Appeal No. 82 of 1994 by the High Court of M.P. that the respondent/plaintiff herein had acquired title over the suit land through a registered Will executed by Chandan Bai had become final. Lastly, it was urged that finding recorded in Civil Suit No. 19-A/1989 and affirmed in First Appeal No. 82 of 1994 by the High Court of M.P. that the respondent/plaintiff herein had acquired title over the suit land through a registered Will executed by Chandan Bai had become final. Since the appellant/defendant did not even make a whisper of the sale deed either in the subsequent Civil Suit No. 19-A/1989 or before the High Court in First Appeal No. 82 of 1994, he was estopped from taking a plea of execution of sale deed in his favour by Chandan Bai on 21-9-1972. 10. The following substantial questions of law arise for determination in this Second Appeal are as under: (A) Whether both the Courts below were justified in placing the onus of proof of sale deed dated 21-9-1972 by Chandan Bai in favour of Ravi Shankar on the appellant/defendant? (B) Whether both the Courts below were justified in recording a finding that execution of sale deed by Chandan Bai in favour of Ravi Shankar was not proved? 11. Having heard rival submissions, I have perused the record of Civil Suit No. 24-A of 1978 with utmost circumspection. Chapter VII of the Indian Evidence Act, 1872 deals with burden of proof. Sections 101 and 102 read as under: 101. Burden of Proof.--Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 102. On whom burden of proof lies.--The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side. 12. It is settled law that the burden of proof in civil matters is not as strict as in criminal cases and may be discharged by showing heavy preponderance of probabilities existing in favour of a person alleging the non-existence of facts which he asserts. Applying the test laid down in Section 102 of the Evidence Act, 1872, the question would be what would be the fate of the case if no evidence was led by either side. Applying the test laid down in Section 102 of the Evidence Act, 1872, the question would be what would be the fate of the case if no evidence was led by either side. Obviously, since the sale deed dated 21-9-1972 was a registered document, presumption would arise regarding its genuineness and the respondent/plaintiff would have failed. Therefore, initially the burden of proving the non-existence of facts necessary to prove that the sale deed dated 21-9-1972 was forged, was on the respondent/plaintiff. Where both parties had led evidence, the Court would not shut its eyes towards the evidence led by the appellant/defendant and focus only on the evidence led by the respondent/plaintiff. Where both the parties had led evidence, it is open to a party pleading the non-existence of certain facts, to show by referring to the evidence adduced by the other party, that such facts necessary to prove the execution of the sale deed dated 21-9-1972 by Chandan Bai were non-existent. 13. In Anil Rishi vs. Gurbaksh Singh (supra), the question was whether the issue regarding the execution of sale deed should be couched in the positive or the negative. In the present case, the Lower Court had framed both the issues, i.e., in the positive as also in the negative. In Anil Rishi vs. Gurbaksh Singh (supra), the facts were that the sale deed which was alleged to be forged was preceded by an agreement to sell and the appellant/defendant had in his written statement denied and disputed the plaint allegations that he was in a dominating position and a fiduciary relationship existed between the parties. However, in the present case, it is not so. No such agreement to sell is shown to exist. The appellant-defendant Ravi Shankar admitted in his testimony that Chandan Bai was an old lady and was issueless and was wholly dependent upon him. Narayan Prasad (D.W. 2) also clearly admitted that Ravi Shankar used to take care of every thing in relation to Chandan Bai who was completely dependant upon him. In this view of the matter, the existence of fiduciary relationship between Chandan Bai and Ravi Shankar is clearly established. Ravi Shankar did not utter even a word that Chandan Bai had taken a loan from the Bank or had to repay the loan taken from one Kamta Prasad or that she was in need of money for her personal or agricultural expenses. Ravi Shankar did not utter even a word that Chandan Bai had taken a loan from the Bank or had to repay the loan taken from one Kamta Prasad or that she was in need of money for her personal or agricultural expenses. Kamta Prasad was also not examined. Any document evidencing loan taken by Chandan Bai from Bank was neither filed nor proved. On the other hand, it was admitted by him that Chandan Bai never took any loan from him. In case of Anil Rishi v. Gurbaksh Singh (supra), there was an agreement to sale which had preceded the sale deed which was alleged to be a forged document. However, in the present case, Ravi Shankar himself admitted that Chandan Bai never took any loan from him and no agreement to sale was executed by Chandan Bai. He also admitted that during the life time of Chandan Bai he was in possession of the entire land owned by Chandan Bai. Narayan Prasad (D.W. 2) also clearly admitted that Chandan Bai had 14-15 acres of land and was thus possessed of sufficient means to lead a comfortable life. The appellant/defendant specifically pleaded in Para 10 of his written statement that he would have succeeded to the entire property of Chandan Bai on her death. Thus, the existence of certain facts to show heavy preponderance of probability that the sale deed dated 21-9-1972 was a forged document, was clearly made out by the respondent/plaintiff. 14. There is nothing on record to show that Chandan Bai who was an old and illiterate lady executed the sale deed dated 21-9-1972 after she had understood the contents of the sale deed. So far as the consideration for the sale is concerned, the testimony of Narayan Prasad (D.W. 2) that at the time of registry Ravi Shankar had paid Rs. 14,500/- to Chandan Bai is proved to be completely false in view of the endorsement on the sale deed itself that no consideration had passed in the presence of Sub Registrar, Mungeli. 15. It is also pertinent to note here that the respondent/plaintiff had in an earlier suit (Civil Suit No. 19-A of 1989) established the execution of registered Will by Chandan Bai in his favour on 25-6-1979 which was upheld in First Appeal No. 82 of 1994 by the High Court of Madhya Pradesh. 15. It is also pertinent to note here that the respondent/plaintiff had in an earlier suit (Civil Suit No. 19-A of 1989) established the execution of registered Will by Chandan Bai in his favour on 25-6-1979 which was upheld in First Appeal No. 82 of 1994 by the High Court of Madhya Pradesh. A perusal of the Will clearly shows that Chandan Bai had mentioned therein that a forged sale deed had been got executed by Ravi Shankar in relation to the suit land. The respondent/plaintiff Rajendra Kumar had made a clear assertion in his testimony that the sale deed got executed by Ravi Shankar from Chandan bai was a forged document. This testimony remained wholly unrebutted in cross-examination. Thus, the appellant/defendant had discharged the initial burden of proving non-existence of facts constituting the validity of Will by showing strong preponderance of probability in his favour. Therefore, the onus of proof shifted on the appellant/defendant to prove existence of facts to prove the validity of the sale deed dated 21-9-1972. The appellant/defendant did not examine Manharanlal Pathak, the scribe of the sale deed who was alive. Narayan Prasad (D.W. 2) is an interested and chance witness. His testimony is belied by the contents of the sale deed showing that consideration had not passed from Ravi Shankar to Chandan Bai in presence of Sub Registrar, Mungeli. Ravi Shankar had a fiduciary relationship with Chandan bai and was in dominating position being her successor and in possession of her entire property. There was thus no necessity for Chandan Bai to execute the sale deed in favour of Ravi Shankar. The testimony of Narayan Prasad (D.W. 2) shows that the Kejha who was present at the time of the execution of the document was also present in Court on the date of his testimony. However, Kejha was also not examined by Ravi Shankar. 16. From the above discussion, the following facts emerge: (A) That Ravi Shankar had a fiduciary relationship with Chandan Bai and was in a position to dominate her Will since Chandan Bai was wholly dependant on Ravi Shankar for everything. (B) That Chandan Bai had absolutely no necessity for executing the sale deed in favour of Ravi Shankar who was already in possession of the suit land being her successor. (B) That Chandan Bai had absolutely no necessity for executing the sale deed in favour of Ravi Shankar who was already in possession of the suit land being her successor. It is not proved that Chandan Bai had taken a bank loan or a loan from one Kamta Prasad or needed money for her personal or agricultural expenses. (C) That consideration of the sale transaction was not paid to Chandan Bai by Ravi Shankar before the Sub Registrar, Mungeli on 21-9-1972. (D) It is also not proved that the contents of the sale deed dated 21-9-1972 were explained to Chandan Bai and Chandan Bai had affixed her thumb impression only after the document was explained to her and consented to by her. (E) Ravi Shankar did not make even a whisper of the sale deed in Civil Suit No 19-A/1989 and had only pleaded that he was the successor of Chandan Bai. (F) Even in the present suit, the appellant/defendant had pleaded in written statement that he being the successor of Chandan Bai was in possession of the suit property. (G) The factum of possession of the suit land since 1973 was of no consequence to the appellant/defendant since he was already in possession of the entire property of Chandan Bai during her life time being her successor. Therefore, the mere fact of possession would not lend any credence to the pleading of execution of the sale deed by Chandan Bai in favour of Ravi Shankar. 17. On the basis of the above, substantial questions of law are answered as follows: (a) The initial burden to prove the non-existence of facts to show that the sale deed dated 21-9-1972 was a forged document having been discharged by the respondent/plaintiff by showing a strong preponderance of probability in his favour as also by his unrebutted testimony, the onus to prove the execution of sale deed dated 21-9-1972 by Chandan Bai in favour of Ravi Shankar was rightly shifted by both the Courts below on the appellant/defendant. (b) Both the Courts below were justified in recording a finding that execution of sale deed by Chandan Bai in favour of Ravi Shankar was not proved. 19. (b) Both the Courts below were justified in recording a finding that execution of sale deed by Chandan Bai in favour of Ravi Shankar was not proved. 19. In Civil Suit No. 19-A of 1989, the respondent/plaintiff having succeeded in proving acquisition of title over the suit lands through a registered Will, the execution of which by Chandan Bai was affirmed by the High Court of Madhya Pradesh in First Appeal No. 82 of 1994 was thus entitled to recover possession of the suit lands from the appellant/defendant. Both the Courts below thus rightly decreed the suit in favour of the respondent/plaintiff. In the result, this appeal must fail and is accordingly dismissed. There shall be no order as to costs. A decree shall be drawn.