JUDGMENT : The appellants/defendants No. 2 and the legal representatives of the deceased/defendant No. 3 have filed the appeal under section 96 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 12-5-2006 passed by the Court of First Additional District Judge, Shivpuri (Shri J. M. Chaturvedi) in Civil Suit No. 60A/05 decreeing the suit filed by the respondent No. I/plaintiff for specific performance of the contract dated 19-11-1999 Ex-P/1 and also declaring the sale deed dated 4-5-2000 executed by the respondent No. 2/defendant in favour of the appellants/defendants as null and void. In this appeal, the appellants are referred as 'defendants No. 2 and 3', respondent No. 1 as 'plaintiff and respondent No. 2 as 'defendant No. 1 . 2. Admitted facts are that the defendant No. 1 Ramjeet was the Bhumiswami of the disputed land Survey No. 19 area 5 Bigha 9 Biswa survey No. 2 area 4 Bigha 9 Biswa situated at village Noharikhurd, District Shivpuri. He had sold the disputed land vide registered sale deed dated 4-5-2002 to the defendant No. 2 Vivek Jha and his brother Vishal Jha who has died and his legal representatives are the defendant No. 3 (a) and 3 (b) being his heirs. 3. Facts in brief of the plaint are that the plaintiff Bharat Suman had contracted to purchase the disputed land from the defendant No. 1 Ramjeet for consideration of % 50,000/-. The defendant Ramjeet executed a document of agreement to sell on 19-11-1999 receiving ? 50,0007- from the plaintiff. The contract was to be performed by 19-11-2002. Before expiry of the said date defendant No. 1 sold the disputed land to Vivek Jha and Vishal Jha. When the plaintiff came to know about the sale transaction he met the defendant No. 1 Ramjeet and asked as to why he had executed the sale deed Ex-P/2 in favour of the purchaser Vivek Jha and Vishal Jha. Upon this Ramjeet told him that he had already sold the disputed land and the plaintiff could do whatever he wanted to do. The plaintiff has further alleged that the said sale deed is not binding on the plaintiff. Consequently, the plaintiff filed the suit for specific performance of the contract against the defendants. 4. Upon this Ramjeet told him that he had already sold the disputed land and the plaintiff could do whatever he wanted to do. The plaintiff has further alleged that the said sale deed is not binding on the plaintiff. Consequently, the plaintiff filed the suit for specific performance of the contract against the defendants. 4. The defendant No. 1 denying the allegations of the plaint has submitted that he did not contract to sell the disputed agricultural land to the plaintiff on 19-11-1999 and did not execute the alleged document of agreement to sell Ex-P/1 in favour of the plaintiff on receiving Rs 50,000/- from him. The defendant has further alleged that the document Ex-P/1 is a fake and fabricated document. No amount of consideration was given by the plaintiff. Entire suit is based on false and bogus facts, hence, the plaintiff was not entitled to get any relief as prayed by him in the plaint. The defendant has further made an additional plea that the stamp used in preparation of Ex-P/1 is also fake as on the alleged date of execution of Ex-P/1, there was no stamp vendor of the name of Smt. Anjana Sharma operating at Shivpuri. 5. The defendants No. 2 and 3 submitting their written statement have alleged that the said document of agreement to sell Ex-P/1 is a forged one. The defendant Ramjeet had never contracted to sell the disputed land to the plaintiff. They further pleaded that they are bona fide purchasers having paid the full consideration of Rs 4,50,000/-. The defendants No. 2 and 3 having purchased the land are in possession of the same since the date of purchase. The said agreement to sell Ex-P/1 has been prepared after the execution of sale deed Ex-P/2, hence the suit be dismissed. 6. The learned trial Court after framing issues and after recording evidence having discussed the evidence decreed the suit in favour of the plaintiff as mentioned earlier. 7. The following questions crop up for consideration in this appeal - 1. Whether or not the defendant Ramjeet had contracted to sell on 19-11-1999 the disputed agricultural land to the plaintiff Bharat Suman and executed the document of agreement to sell Ex-P/1? 2. Whether the sale deed Ex-P/2 executed by Ramjeet in favour of defendant No. 2 Vivek Jha and his brother Vishal Jha is null and void? 3. Whether or not the defendant Ramjeet had contracted to sell on 19-11-1999 the disputed agricultural land to the plaintiff Bharat Suman and executed the document of agreement to sell Ex-P/1? 2. Whether the sale deed Ex-P/2 executed by Ramjeet in favour of defendant No. 2 Vivek Jha and his brother Vishal Jha is null and void? 3. Whether the findings recorded by the learned trial Court are based on proper reasonings? 8. Arguments of both the parties were heard and the record was perused. 9. Assailing the findings recorded by the learned trial Court, the learned counsel for the appellants submit that the approach of the learned trial Court in appreciation of evidence is not only superficial but also in cavalier manner. The counsel further submits that the learned trial Court has committed an error in holding that Rs 50,000/- was given by the plaintiff to the defendant Ramjeet because no consideration was in fact paid by the plaintiff to the defendant No. 1. The counsel further pleads that as per allegations of the plaintiff Rs 50,000/- i.e. entire consideration was paid to the defendant Ramjeet vide Ex-P.l. If it was correct why the sale deed was not got executed by the plaintiff on the same day. No reason in this regard has been explained by the plaintiff. Moreover, the plaintiff resides at Gram Toriya Khalsa, Tehsil Pohari whereas the defendant Ramjeet resides at village Noharikhurd, District Shivpuri and the distance between both the villages is more than 60 kilometers what was the need for the plaintiff for purchasing the disputed agricultural land at village Noharikhurd. It was also not explained by him. The document is not registered. Name of the stamp vendor is not disclosed in Ex-P. 1. Besides, the statement of stamp vendor was not got recorded on behalf of the plaintiff whereas it was specifically pleaded in para 10 of the written statement that Smt. Anjana Sharma was not stamp vendor on 19-11-1999. The learned counsel further pleads that the said document was never acted upon since its execution. It was prepared by the plaintiff after the execution of sale deed Ex-P/2 with connivance of his close associates. The learned counsel further submits that the learned trial Court has not paid attention to these facts in appreciation of the evidence in this regard. 10. It was prepared by the plaintiff after the execution of sale deed Ex-P/2 with connivance of his close associates. The learned counsel further submits that the learned trial Court has not paid attention to these facts in appreciation of the evidence in this regard. 10. The learned counsel for the respondent No. 1 submits that as per agreement Ex-P/1 the defendant Ramjeet after having received the entire consideration had executed the document of agreement to sell Ex-P/1 in favour of the plaintiff Bharat Suman and the plaintiff has successfully proved not only the execution of the Ex-P/1 but also given the consideration of Rs 50,000/- to the defendant by his own statement as well as the statement of his witnesses. The learned counsel further submits that the learned trial Court has duly appreciated the evidence of both the parties and had arrived at conclusion that the plaintiff was entitled to get the relief of specific performance. No sufficient reasons have been assigned on behalf of the appellants to interfere in the findings of the learned trial Court and he requests to dismiss the appeal. 11. As per pleadings of both the parties, the plaintiff has alleged that the defendant on receiving Rs 50,000/- contracted to sell the disputed land and executed the agreement to sell Ex-P/1 in his favour whereas the defendant vehemently denying the contents of the Ex-P/1 has claimed it to be fake and forged document and has further asserted that he had not signed. As per sections 101 and 102 of the Evidence Act, if a party alleges a fact to be in existence and other party denies the fact in such a situation the burden of proof shall lie on the party who alleges the fact to be in existence. As held by High Court in Dhani Ram vs. Karan Singh, 1985 M.P.W.N. 540. In the instant case, the plaintiff has relied on the existence of Ex-P/1, on the basis of which, the relief of the suit is based. The defendant No. 1 is a agricultural labour and illiterate (As per para 13 of the plaintiffs statement). As held by High Court in Dhani Ram vs. Karan Singh, 1985 M.P.W.N. 540. In the instant case, the plaintiff has relied on the existence of Ex-P/1, on the basis of which, the relief of the suit is based. The defendant No. 1 is a agricultural labour and illiterate (As per para 13 of the plaintiffs statement). Hence, the burden of proof goes to the plaintiff that the document Ex-P/1 was executed by the defendant No. 1 Ramjeet having received Rs 50,000/- making contract to sell the disputed land but the learned trial Court has improperly shifted the burden of proof in para 11 of the judgment as it was obligatory on the part of the plaintiff to prove the contents and execution of the Ex-P/1 and then the defendant No. 1 was to prove to rebut the said document. In the instant case, the learned trial Court has committed grave error holding and misjudging the execution of the document on the basis that it was not proved by the defendant No. 1 and it was not signed by him. 12. On perusal of the Ex-P/1, it becomes clear that the document is prepared on a stamp of Rs 50/-. It was neither got registered nor was it notarized. By this document, it is alleged that Rs 50,000/- was paid to the defendant but such a big sum was neither paid by cheque nor by bank draft. The plaintiff has not produced any document showing the source of money where from the said amount was given to the defendant. Moreover, no document has been produced by the plaintiff showing that the sum was deposited anywhere in the account of defendant on the same date. If such a document had been produced, it could not have been inferred that the said sum was transferred to the defendant. 13. The document Ex-P/1 is said to have been written between the plaintiff and the defendant No. 1 as well but as to why the plaintiff did not sign the Ex-P/1, it has not been explained by the plaintiff in this regard. In this case the defendant No. 1 has not only denied the execution of the document Ex-P/1 but also has claimed it to be a fake and forged document. In this case the defendant No. 1 has not only denied the execution of the document Ex-P/1 but also has claimed it to be a fake and forged document. In view of the said facts, it appears that the plaintiff had apprehension in his mind that if he signed the document, he could be implicated in any criminal case otherwise there was no reason for the plaintiff for not signing the document. 14. In paras 1 and 7 of the statement of Bharat Suman (PW/1) and in paras 1 and 4 of the statement Indrajeet (PW/2), it has come on record that the entire consideration of Rs 50,000/- was paid on 19-11-1999 when the document was executed. As per Ex-P/1 the contract was to be performed on 19-11-2002. This clearly appears to be not only dubious but also unnatural as if the entire consideration had been paid to the defendant the document would have been registered on the said date or in a day or two but it was not done so. No reason has been given further in the Ex-P/1 as to why the date of performance of the contract was fixed for three and half years after the date of execution. Though the plaintiff has deposed in para 7 saying that the defendant told him that after settlement of the dispute he would execute the registry. The explanation appears to be false and based on afterthought as it has neither been mentioned in the document Ex-P/1 nor any document indicating the dispute pending in any Court has been filed on record. This fact leads to suspicion that the document has been prepared after the execution of sale deed Ex-P/2 dated 4-5-2002 in favour of the defendant No. 2 and his brother. That is why, the date of performance of the contract has been mentioned as 19-11-2002. 15. It is not clear from the document Ex-P/1 from whom it was got typed and the statement of said typist was not got recorded to prove the execution of the document. Besides, it was the responsibility of the plaintiff to clarify all the doubts existing in the execution of the document and the statement of stamp vendor was also required to prove that the said stamp of Rs 50/- was issued on 19-11-1999 but it was not done so. Besides, it was the responsibility of the plaintiff to clarify all the doubts existing in the execution of the document and the statement of stamp vendor was also required to prove that the said stamp of Rs 50/- was issued on 19-11-1999 but it was not done so. Besides, the defendant has produced the Ex-D/3 and Ex-D/4 showing that the licence of the stamp vendor Smt. Anjana Sharma was not renewed and she was not authorised to sell the said stamp. To prove this fact, it was necessary for the plaintiff to get the statement of Smt. Anjana Sharma recorded in this case as the plaintiff is direct beneficiary of the said stamp. However, the learned trial Court in paras 8 to 10 has again erred in unduly relying on the said stamp without verifying the truth as to whether the said stamp was issued by Smt. Anjana Sharma on the date of execution i.e. 19-11-1990 which could have become clear only by recording the statement of Smt. Anjana Sharma. 16. In para 5 of the plaintiff Bharat Suman Sharma's statement, it has come on record that before making the contract to purchase the disputed land from the defendant No. 1 he had not seen it. On this basis, the said contract appears to be inappropriate and improvable as the plaintiff does not resides in the vicinity of the village where the disputed land is existing. Moreover, the plaintiff has not made it clear that his relatives were living there. On the contrary, the fact remains that the plaintiffs residence is 60 kilometers away from the disputed land as mentioned earlier. It is also pertinent to mention here that normally no one would go for purchasing a property without seeing it in person, when it was a matter of investing a big sum of Rs 50,000/- in the year 1999. 17. The defendant No. 1 Ramjeet has deposed in para 2 of his statement that he does not know the plaintiff nor he had ever seen him before and in para 3 the witness has clearly refused to have made the said contract and executed the document Ex-P/1 in favour of the plaintiff. Further, in the cross-examination it has been found that nothing has come on record to disbelieve his statement. Over and above, even the plaintiff has not clarified satisfactorily that how this contract materialised between both the parties. Further, in the cross-examination it has been found that nothing has come on record to disbelieve his statement. Over and above, even the plaintiff has not clarified satisfactorily that how this contract materialised between both the parties. 18. The plaintiff witness Indrajeet (PW/2) has tried to prove the execution of the Ex-P/1 by the defendant on receiving Rs 50,000/-. The witness Indrajeet is neither resides in the defendant Ramjeet village Noharikhurd nor is a relative of Ramjeet. He belongs to village Behata Pargana Pohari, District Shivpuri whereas the defendant Ramjeet is resident of village Noharikhurd. The said witness has deposed in para 3 of his statement that village Toriya (the plaintiffs village) is 12 miles away from his village where plaintiff Bharat Suman resides. In para 3 it is also come on record that the brother of plaintiff, Jagdish Master had been teacher there and, owing to which, he is acquainted with Jagdish and plaintiff Bharat Suman. The witness has admitted in para 4 that he was not acquainted with the defendant Ramjeet. As per his statement he saw him (Ramjeet) first time on the alleged execution of Ex-P/1 i.e. 19-11-1990. The witness Indrajeet's statement cannot be relied upon as he was not familiar with the person who signed the Ex-P/1 in his presence as stated by him in his statement. When the witness Indrajeet did not know the defendant Ramjeet how could he identify a person who signed the document was the defendant Ramjeet? No photographs of the defendant Ramjeet is affixed on Ex-P/1. Moreover his statement was recorded on 20-4-2006 before the trial Court. On that day the defendant Ramjeet was not present there. 19. The statement of the plaintiff Bharat Suman Sharma and Indrajeet (PW/2) are contradictory to each other regarding payment of consideration to the defendant. The plaintiff Bharat Suman has stated in para 7 that the amount was paid when the agreement was typed in Shivpuri Court premises whereas witness Indrajeet has deposed in para 4 that Rs 50,000/- was given to the defendant Ramjeet out of the Court premises. No definite place has been pointed out by the witness regarding payment. 20. The witness Indrajeet has admitted in para 11 that the notice sent by defendant Ramjeet was received by him through the postal receipt Ex-D/2. The said notice was not replied by him. No definite place has been pointed out by the witness regarding payment. 20. The witness Indrajeet has admitted in para 11 that the notice sent by defendant Ramjeet was received by him through the postal receipt Ex-D/2. The said notice was not replied by him. The contents of notice were not denied by this witness whereas the defendant Ramjeet has threatened all the aforesaid persons in it that he would prosecute them under sections 420, 467, 468, 471 read with section 34 of Penal Code as the alleged document Ex-P/1 which has been prepared in his name is forged and fabricated document. A copy of the notice dated 28-2-2006 is enclosed in the lower Court record in which the defendant Ramjeet has specifically mentioned that agreement dated 19-11-1999 has been prepared as fake and forged document with the connivance of Indrajeet, Rambharosi (PW/3), plaintiff Bharat Suman Sharma and stamp vendor Smt. Anjana Sharma. 21. Considering the said facts, it is concluded that the document of agreement to sell Ex-P/1 was not executed by the defendant Ramjeet in the presence of the witness Indrajeet. He has witnessed falsely in this case owing to his familiarity with the plaintiff Bharat Suman Sharma and his brother Jagdish Sharma who was teacher in his village. 22. The plaintiffs witness Rambharosi has deposed the statement in favour of the plaintiff. This witness has admitted in para 4 that elder brother of the plaintiff Shri Jagdish Prasad Sharma, teacher used to come to him for 10 years. He was teacher in his village. Presence of this witness is also suspicious. The plaintiff has deposed in para 6 that he had brought Rambharosi (PW/3) from village Nohari to Shivpuri for execution of Ex-P/1. As to why this witness was brought from the village. No sufficient reason has been brought on record in this regard. By profession this witness is a munshi of advocate and he is well versed with the Court working. 23. Rebutting the plaintiffs evidence the defendant Ramjeet has deposed in para 6 that a quarrel took place between Rambharosi and his son Vijay. Apart from this, the defendant Ramjeet in para 7 of his statement has denied having taken the consideration from the plaintiff Bharat Suman and having executed the document Ex-P/1. However, he has admitted that he took some money from Jagdish teacher i.e. brother of plaintiff who was posted in his village. Apart from this, the defendant Ramjeet in para 7 of his statement has denied having taken the consideration from the plaintiff Bharat Suman and having executed the document Ex-P/1. However, he has admitted that he took some money from Jagdish teacher i.e. brother of plaintiff who was posted in his village. In these circumstances, it is inferred that the witness Indrajeet and Rambharosi were in association of the plaintiffs brother Jagdish Sharma who was posted at the defendant's village Noharikhurd as well as Indrajeet's village. There was some transaction between Jagdish Sharma and the defendant Ramjeet, owing to which, the document Ex-P/1 has been prepared at the direction of Jagdish Sharma in his brother's name Bharat Suman Sharma with the connivance of Rambharosi and Indrajeet. The defendant Ramjeet has specifically denied in his statement to have borrowed money from the plaintiff and executed the document Ex-P/1 and further stated that the document Ex-P/1 is a forged and fake document. Nothing has been brought on record during cross-examination to discredit his statement where the defendant specifically alleged that the document Ex-P/1 was fake and forged. It was onus on the plaintiff to have examined and compared the signature of the defendant by a hand writing expert but he did not do so. 24. It would be apt to mention here that the plaintiff had not got a public notice issued in any newspaper before contracting to purchase the disputed land. The document was never exhibited by the plaintiff. Moreover, no notice was