JUDGMENT 1. Being aggrieved by judgment dated 23.3.10, passed by II Additional Distt. Judge (Fast Track) Jobat, in Civil Suit No. 14-A/09 whereby judgment and decree dated 1.09.09 passed by Civil Judge Class II in Civil Suit No. 50-A/08, whereby the suit filed by respondent No.1 for declaration and possession was dismissed, was decreed, present appeal has been filed. This appeal was admitted on the following substantial questions of law:- (1) Whether in the facts and circumstances of the case learned Appellate Court committed an error in allowing the appeal and setting aside the judgment and decree passed by the learned trial Court? 2. Whether learned appellant Court committed an error in holding that burden of proof that fraud was played over respondent No. 1 on the appellants? 2. Short facts of the case are that respondent No. 1 filed a suit for declaration, possession and for cancellation of the sale deed dated 21.9.05, alleging that respondent No. 1 is owner of land bearing survey Nos. 37, 730, 150 and 308 measuring 3.15 hectares, situated at village Pahadwa, Tehsil Jobat, Distt. Alirajpur. It was alleged that respondent No. 1 is an old man and is handicapped. It was alleged that Kamaria, who is son of respondent No. 1, and is looking after agricultural land owned by respondent No. 1. It was alleged that respondent No. 1 sustained fracture in his leg at that time Kamaria son of respondent No. 1 took loan of Rs. 2000/- from appellant No.2 for his treatment and land of survey No. 150 was kept with appellant No.2 for cultivation in security and it was agreed that no interest shall be payable by respondent No. 1. Further case of respondent No. 1 was that at the relevant time appellant No.2 was the Sarpanch of the village and was influential person, therefore, respondent No. 1 trusted on appellant No.2. Further case of respondent No. 1 was that in the year 2005, appellant No.2 got the sale deed executed in favour of appellant No. 1 of the land bearing survey No. 150 measuring 0.43 hectares fraudulently, taking advantage of his position as Sarpanch. It was alleged that the fact that sale deed has been executed was not known either to respondent No.2 or to Kamaria. It was alleged that the fact that sale deed has been executed was not known either to respondent No.2 or to Kamaria. Further case of respondent No. 1 was that Kamaria son of respondent No. 1 went to appellant No.2 in year 2008 for refund of Rs. 2000/- at that time appellant No.2 refused to take back the amount and informed that he has got suit property transferred in the name of appellate No. 1 and appellants shall not return the field. It was alleged that upon enquiry with Patwari and upon collection of revenue record respondent No. 1 came to know that the land of respondent No. 1 has been reduced and the name of appellant No. 1 has been recorded on the basis of illegal sale deed dated 21.9.05 as respondent No. 1 has executed the sale deed in favour of appellant No. 1. It was alleged that in fact piece of land of Survey No. 150 was given to the appellant No.2 for cultivation in security of loan amount of Rs. 2000/-. It was alleged that in the facts and circumstances of the case, the sale deed dated 21.9.05 is not valid sale deed and is illegal and deserves to be declared as void. It was prayed that suit filed by the respondent No. 1 be decreed and it be declared that respondent No.1 is the owner of land bearing survey No. 150 and the sale deed be declared as null and void as it has been got executed by fraud. It was also prayed that decree of possession be passed in favour of respondent No. 1 and against the appellants. 3. The suit was contested by appellants by filing written statement where all plaint allegations were denied. It was denied that respondent No. 1 was handicap. It was also denied that loan of Rs. 2000/- was taken by respondent No. 1, as respondent No. 1 has sustained fracture and money was required for his treatment. It is prayed that suit be dismissed. It was denied that respondent No. 1 was handicap. It was also denied that loan of Rs. 2000/- was taken by respondent No. 1, as respondent No. 1 has sustained fracture and money was required for his treatment. It is prayed that suit be dismissed. After framing of issues and recording evidence learned trial Court dismissed the suit filed by respondent No. 1 against which the appeal was filed by respondent No. 1, which was allowed whereby judgment and decree passed by trial Court was set aside and decree was passed in favour of respondent No. 1 holding that the sale deed is null and void and it was directed that respondent No. 1 be put into possession against which the present appeal has been filed. 4. To prove the case respondent No. 1 has filed documents Exhibit P/1, which is the sale deed dated 21.9.05, Exhibit P/2 is the revenue record for the year 1991-92 wherein name of respondent No.1 has been recorded as Bhoomi Swami on the land bearing survey No. 150. Apart from this, respondent No.1 has examined himself as PW 1, Roop Singh as PW 2, Juban Singh as PW 3, and Kamaria as PW 4. While appellants has filed document Exhibit D/1 agreement to sale dated 11.5.01. Exhibit D/2 sale deed and Exhibit D/3 intimation notice issued by SDM Jobat, dated 5.9.08, whereby appellants were intimated to appear before SDM Jobat on 9.9.08 as respondent No. 1 has lodged the complaint that respondent No. 1 has mortgaged the suit land and has kept the suit property as security. Apart from this appellants has examined appellant No.2 as DW.1, Ratu as DW 2, Edibai as DW 3, and Babu Singh Chauhan as DW 4. 5. Learned counsel for the appellants argued at length and submit that impugned judgment passed by the learned Appellate Court is illegal, incorrect and deserves to be set aside. It is submitted that the findings of the appellate Court are based on due appreciation of evidence, therefore, there was no justification on the part of the appellate Court to set aside the findings recorded by the learned trial Court. Learned counsel submits that since the case of respondent No. 1 is that appellant No.2 has got the sale deed executed from respondent No. 1 by fraud, therefore, burden to prove the fraud was on respondent No. 1. Learned counsel submits that since the case of respondent No. 1 is that appellant No.2 has got the sale deed executed from respondent No. 1 by fraud, therefore, burden to prove the fraud was on respondent No. 1. It is submitted that since the respondent No. 1 failed to prove that fraud was played, therefore, the learned appellate Court committed error in decreeing the suit. For this contention reliance is placed on a decision of this Court in the matter Kishandas Ram Kumar Agrawal v. Sharvan Kumar Parmanand Bhai Patel reported in 1975 MPLJ 556 wherein this Court has held that fraud has to be established beyond reasonable doubt. It was also alleged that the burden of proof to prove fraud lies on the party who alleges it. It is submitted that since respondent No. 1 failed to prove the fraud, therefore, there was no justification on the part of learned appellate Court to decree the suit in favour of respondent No. 1. It is submitted that appeal be dismissed. 6. Ms. Rekha Shrivastava, learned counsel for respondent No. 1 submits that after taking into consideration the evidence on record, which shows in volume that the fraud was played by the appellants over respondent No. 1, the learned appellate Court rightly set aside the findings recorded by the trial Court and decreed the suit. It is submitted that the appellants are also tribal, but at the relevant time appellant No.2 was Sarpanch of the Village. Learned counsel submits that it has come in evidence that respondent No.1 sustained fracture and at that time respondent No. 1 was in need of money and loan was given by appellant No.2 for his treatment. It is submitted that the attesting witnesses are Keku and Nasru, but both of them were not examined. Similarly, the sale deed was prepared by Shri K.C. Jain, Advocate, who was not examined. It is submitted that in the facts and circumstances of the case no illegality has been committed by the learned appellate Court in setting aside the findings recorded by learned trial Court and also by decreeing the suit filed by the respondent No.1. It is submitted that the appeal be dismissed. So far as the law laid down in the matter of Kishandas, Ramkumar Agrawal (supra), is concerned the facts of that case are quite distinguishable. It is submitted that the appeal be dismissed. So far as the law laid down in the matter of Kishandas, Ramkumar Agrawal (supra), is concerned the facts of that case are quite distinguishable. In the present case while coming to the conclusion that respondent No.1 has never sold the suit property to the appellant No. 1, learned Appellate Court has taken into consideration various aspects of the case, apart from the aspects which were taken into consideration by the Appellate Court. There are some other aspects of the case on the basis of which it can be said that findings recorded by learned Appellate Court are just and proper which are as under:- 1. Ex D/1 is the agreement which is in favour of appellant No. 1 according to which the transaction is of Rs. 23000=00 out of which Rs. 6000=00 were paid to respondent No.1 previously and Rs. 5000=00 was paid at the time of execution of document D/1. There is absolutely no evidence about payment of Rs. 6000=00. Even the date of payment of Rs. 6000/- is not on record. 2. Payment of Rs. 5000/- is shown at the time of execution of document, in presence of witnesses Sursingh, Narpsingh, Methu, Karan, Ratu, Chitu, Nasaru, Kaku and Sumji and Habu but only Ratu was examined whose statement has rightly been disbelieved by learned Appellate Court. 3. Ex-P/1 is the sale deed which is not of Rs. 23000=00 but for Rs. 24000=00. No evidence has been adduced to prove the fact that why the amount of sale was enhanced to 24000=00. 4. In the sale deed Ex. P-1 it is alleged that the possession has been handed over by the respondent No. 1 to appellant No. 1 while respondents No.1 was not in possession as the possession was given by the respondent No. 1 to appellant No.2 at that time of execution of agreement Ex. P/1 itself. 5. Ex-P/1 is sale deed which was executed in presence of Keku, and Nasaru but none of the witness were examined. The sale deed was drafted by K.C. Jain, Advocate but he was not examined. 6. As per the evidence of appellant No. 1 payment of Rs. 13,000/- was made at the place of her advocate but he was not examined. Ex-P/1 is sale deed which was executed in presence of Keku, and Nasaru but none of the witness were examined. The sale deed was drafted by K.C. Jain, Advocate but he was not examined. 6. As per the evidence of appellant No. 1 payment of Rs. 13,000/- was made at the place of her advocate but he was not examined. It is true that it was the case of respondent No.1 that he has never executed the sale deed and fraud was played by the appellants. To prove the case respondent No. 1 has examined himself. Initially burden was on respondent No.1 to prove that the fraud has been played. After recording of his evidence burden was on the appellants to prove that transaction took place between the parties was genuine and no fraud was played by appellants but the appellants utterly failed to prove that the sale was with full of consideration and the consideration was paid by the appellants to respondent No. 1. In the facts and circumstances of the case this Court is of the view that learned Appellate Court committed no error in allowing the appeal and setting aside judgment and decree passed by learned trial Court. This Court is also of the view that learned Appellate Court rightly held that burden was on the appellants to prove that no fraud was played, specially in the present case appellant No.2 was Sarpanch of village at the relevant time and respondent No. 1 is illiterate. In view of this the appeals filed by the appellants have no merits and the same stands dismissed. No order as to costs.