JUDGMENT N. Chaudhury, J. 1. This second appeal has been preferred by the defendants challenging the concurrent findings of both the Courts below. The suit of the plaintiff was decreed by the trial Court and title appeal preferred there against had failed. The appeal is ready in regard to service. Orders passed in this appeal on previous occasions show that the matter was heard at some length and the parties were required to furnish translated version of the deposition of DW 2. Accordingly, this case is taken up for final disposal as prayed for by both the parties. The respondents/plaintiffs instituted Title Suit No. 23/1998 in the Court of Munsiff, Nalbari against their own brother defendant No. 1 praying, inter alia, for declaration that sale deed No. 3148/1996 registered under the Sub-Registrar, Nalbari allegedly by the plaintiff in favour of the defendant No. 1 is forged and fraudulent and for cancellation of the same and for issuance of precept to the Sub-Registrar, Nalbari for making necessary endorsement in the records. 2. Case of the plaintiff is that the plaintiff Nos. 1 and 2 and the defendant No. 2 are brothers. By way of the family arrangements arrived on 08.02.1987 they have been residing separately, but the mother of the plaintiffs and the defendant No. 1 (who has surviving at that time) was residing with the defendant No. 1. As per the averments of the parties, a plot of land measuring 5 bighas was allotted to their mother at the time of family arrangement along with a house for the purpose of her maintenance, whereas the brothers were enjoying their respective shares individually. The mother died on 29.09.1996. The land allotted to her was equally divided among the three brothers. But the defendant No. 1 who is only entitled to one third share of the said land, refused to part with balance two third part of the land saying that the same had been gifted to him by the deceased mother. It is pleaded that Title Suit No. 24/1997 was previously filed with a prayer for partition of land and in course of the said proceeding the defendant No. 1 made disclosure about execution of the registered sale deed No. 3148/1996. The plaintiffs claimed that they did not execute any such plot and the same was forged and fraudulent one. It is pleaded that Title Suit No. 24/1997 was previously filed with a prayer for partition of land and in course of the said proceeding the defendant No. 1 made disclosure about execution of the registered sale deed No. 3148/1996. The plaintiffs claimed that they did not execute any such plot and the same was forged and fraudulent one. As the sale deed is forged one, the plaintiffs instituted the instant suit for cancellation of the sale deed along with consequential relief. 3. The defendant No. 1 filed the written statement not only denying the case of the plaintiffs but further claiming that the said sale deed was witnessed by the proforma defendant No. 3 as attesting witness and the proforma defendant No. 2 was a scribe of the said sale deed. The defendant further claimed that the land was actually gifted to defendant No. 1 by the deceased mother considering the service rendered by him to her but as there was no mutation of their mother the said land could not be mutated in favour of defendant No. 1 and this on being informed to the plaintiffs they executed the sale deed in question with their full knowledge and that, too, on receipt of consideration. The defendant prays for dismissal of the suit with cost. 4. On these rival contentions, the learned Court framed as many as 7 (seven) issues and the same are as below:- (i) Whether there is any cause of action for the suit? (ii) Whether the suit is maintainable in law specially u/s. 10 of CPC? (iii) Whether the suit is bad for waiver and acquiescence? (iv) Whether the plaintiffs executed the registered sale deed No. 3148/1996 dated 06.01.1996 in favour of the defendant No. 1? (v) Whether the plaintiffs are entitled to the relief as claimed for? (vi) To what other relief/reliefs the parties are entitled? 5. Plaintiff examined 7 (seven) witnesses and exhibited several documents. Defendant No. 1 examined himself with one more witness, namely defendant No. 2. The learned trial Court after hearing the parties and on perusal of the materials on record, decreed the suit by judgment dated 23.12.2010 with the following findings:- (i) That the defendant No. 1 stated in his examination in chief that Rs. Defendant No. 1 examined himself with one more witness, namely defendant No. 2. The learned trial Court after hearing the parties and on perusal of the materials on record, decreed the suit by judgment dated 23.12.2010 with the following findings:- (i) That the defendant No. 1 stated in his examination in chief that Rs. 5,000/- was to be given by the plaintiff to the defendant as per their family arrangements arrived at the time of their separation and accordingly, executed the sale deed Ext. 1 in respect of their shares over the 5 (five) bighas of land meaning thereby that the defendant No. 1 did not pay any price for the land by cash. (ii) In his cross-examination the same defendant No. 1 stated that he purchased the suit land for Rs. 4,000/- and after execution he paid money to the plaintiff in their house. (iii) That the contention of Ext. 1 does not support the version of D.W. 1 made in his examination-in-chief regarding the facts and circumstances leading the execution of Ext. 1. (iv) All the contradictions and discrepancies referred to above, according to the learned trial Court create suspension about the genuineness of the Ext. 1. 6. Aggrieved by the decree passed by the learned trial Court, the present appellants approached the First Appellate Court through Title Appeal No. 7/2011. The learned First Appellate Court has discussed the evidence on record. 7. It was shown that the disputed signature of plaintiff No. 1 was not found to be identical with his specimen signature, the same of the plaintiff No. 2 over Ext. 1 was found to be identical with his specimen signature and so arguments were made before the Lower Appellate Court that the Ext. 1 was really executed by the plaintiffs. The learned Appellant Court placed reliance on the case of Sashi Kumar Banerji Vs. Subodh Kumar Banerji, reported in AIR 1964 SC 529 and held that the expert evidence of hand expert writing is merely an opinion and it is necessary to get the same corroborated either by clear direct evidence or by circumstantial evidence. Discussing the direct evidence on the plea of execution of Ext. 1 the trial Court observed that defendant no. Subodh Kumar Banerji, reported in AIR 1964 SC 529 and held that the expert evidence of hand expert writing is merely an opinion and it is necessary to get the same corroborated either by clear direct evidence or by circumstantial evidence. Discussing the direct evidence on the plea of execution of Ext. 1 the trial Court observed that defendant no. 1 in para-4 of the written statement denied the fact that the mother of the plaintiffs and the defendant No. 1 is with him and she was given a plot of land measuring 6 bighas along with a chali house with 3 pairs of pakka pillars. It has been observed that there is nothing in the averments of the DW 1 as to why and under which circumstances the plaintiffs came to know all about the execution of the sale deed alleged to have been executed by them and that the plea raised as to how objection under Section 10 of the CPC was not tenable. He claimed that the land in question mentioned in the sale deed is nothing but the land which was given by his mother during his life time in his favour by way of gift and the subsequent claim is that the sale deed was executed by the plaintiffs on consideration of Rs. 4,000/-, appeared to be contradicted. 8. Moreover, the defendant No. 2, Jogen Kalita who is claimed to be attesting witness of the sale deed not having being examined the reasons for best known to him to the learned First Appellate Court was obvious. The learned first Appellant Court perused the evidence of DW 2 also arrived at the finding of the fact that he did not witnessed all the developments as stated in the Ext. 1 and thereafter on totality of circumstances. 9. The appeal was dismissed by the impugned judgment dated 20.03.2012 upholding the judgment of the learned trial Court. The present second appeal is directed against the aforesaid concurrent findings of fact. 10. The central question to be considered in this case is whether the Ext. 1 sale deed was executed in favour of the defendant. The Ext. 1 is claimed to have been written by the defendant No. 2 who is scribe and the sole attesting witness has been impleaded in this case as defendant no. 2. 10. The central question to be considered in this case is whether the Ext. 1 sale deed was executed in favour of the defendant. The Ext. 1 is claimed to have been written by the defendant No. 2 who is scribe and the sole attesting witness has been impleaded in this case as defendant no. 2. On being questioned he had stated that he was informed by the executant that a sale deed was executed. He did not say that he saw execution of the deed himself. So, he cannot be treated as attesting witness. Thus sole the attesting witness (defendant No. 3) not having been examined, the execution of the deed cannot be said to have been proved. 11. Relying on the judgment in the case of M.L. Abdul Jabbar Sahib Vs. Venkata Shastri & Sons and Ors, reported in AIR 1969 SCC 1147 paragraph 8, learned counsel for the respondents Mr. Banerjee has submitted that a scribe cannot be attesting witness under the facts and circumstances. The law laid down in AIR 1929 Mad 1 (FB) and the aforesaid judgment i.e. AIR 1969 SCC 1147 provide that normally a scribe cannot be attesting witness unless he deposed on the question of attestation as well as. 12. To understand the facts of the case particularly on this question, learned counsel for the appellant was requested to submit a translated copy of the deposition of DW 2 (the scribe) and the said is accordingly being brought on record. It appears from the said deposition that scribe (DW 2) did not claim to have witnessed the actual act of execution and has only deposed to the fact that he was intimated by the plaintiff about execution of the sale deed. 13. Section 59 of the Evidence Act requires that a fact which can be seen has to be proved to have been seen and the fact which can be heard has to be proved to have been so heard. Execution of a sale deed is obviously a matter to be seen by the witnesses and hence in the absence of direct evidence to that effect adduced by some one and unless someone supposed to have seen the execution does not depose to have seen the same, it cannot be said as per Section 59 of the Evidence that execution has been proved. This being the position in law, execution of Ext. This being the position in law, execution of Ext. 1 sale deed in the present case has not been proved by preponderance of probability. 14. Heard Mr. D. Choudhury, learned counsel for the appellant and Mr. B. Banerjee, learned counsel appearing for the contesting respondents/plaintiffs. 15. From perusal of the materials on record it is clear that both the parties have led evidence to prove as well as to disprove the execution of Ext. 1 (regd. sale deed) from their respective stand. Where both the parties have led evidence to prove or disprove a fact the question of burden pales into insignificance. So, the submission of the learned counsel for the appellants that the Courts below wrongly shifted the onus on the defendant to disprove execution of the sale deed whereas the initial burden was discharged by defendant No. 1, cannot be countenanced. The second submission of the learned counsel for the appellants was that as per the expert opinion, namely, the handwriting expert atleast signature of plaintiff No. 1 on Ext. 1 has been established and as such it was wrong on the part of the Court below to hold that Ext. 1 was not executed by the plaintiffs. The learned first appellate court has discussed this aspect of the matter in the light of the decision of Hon'ble Supreme court in the case of Ishwari Prasad Mishra v.-Md. Isha reported in AIR 1963 SC 1728 . Since, no document can be said to have been duly executed merely depending on expert opinion of Hand writing expert, and since in the case in hand there is no direct or circumstantial evidence as to execution, mere expert opinion that one of the two plaintiffs signed the deed cannot be of any help so far as the proof of execution of the deed is concerned. On the other hand the findings of the trial Court as well as the Appellate Court to show that even the very basis of the claim of the defendant No. 1 as to execution of the sale deed appeared to be contradictory on facts. While on one hand it has been described, it as an act in pursuance of the family arrangement without any actual payment of consideration, on the other hand, a specific stand of has been taken saying that a sum of Rs. 4,000/- as paid towards consideration. While on one hand it has been described, it as an act in pursuance of the family arrangement without any actual payment of consideration, on the other hand, a specific stand of has been taken saying that a sum of Rs. 4,000/- as paid towards consideration. A document has to be proved in accordance with the law. Here in this case execution of a document is disputed. 16. In this view of the fact and circumstances, no substantial question of law arises for consideration by this Court under Section 100 of the Code of Civil Procedure. 17. Accordingly this second appeal cannot be admitted and the same is accordingly dismissed. However, no order as to cost. Appeal dismissed