JUDGMENT : D. Dash, J. - This appeal has been filed challenging the judgment and decree passed by the learned Ad hoc Additional District Judge, (Fast Track Court IV), Bhubaneswar in R.F.A. No.05 of 2004. The respondent as the plaintiff had filed the suit numbered as O.S. No.322 of 2000 (O.S. No.53 of 1991) for setting aside the sale deed dated 11.05.1988 and for permanent injunction. The suit having been dismissed by the trial court the unsuccessful plaintiff had carried the appeal. The lower appellate court has allowed the appeal and set aside the judgment and decree passed by the trial court. The impugned sale deed has been declared to be illegal, void and not binding on the plaintiff-respondent; ex-consequenti, his right, title and interest have been declared. It may be stated here that the original defendant having died during suit, the present appellants were substituted in his place as his legal representatives in the trial court, and they having lost the legal battle in the lower appellate court, are now the appellants here. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. The case of the plaintiff is that he had purchased the suit land in the year 1974 and has been residing thereon by remodelling his double storied building. It is stated that the natural born son of the plaintiff was not pulling on well with him for which he was residing at Berhampur and on 29.01.1988 the plaintiff's wife passed away. The plaintiff was allotted with a shop room in the railway market at Khurda road and he was running his business there. A notice was issued to him to cancel the said lease hold plot on the false allegation that there has been encroachment at his end concerning the immovable properties. Then serious disturbance was going on in the family and a dispute among the family members of the plaintiff was pending in High Court. Thus, the plaintiff was under terrible mental pressure as being tortured due to above. When such was the state of affair in the month of May, 1988, he fell ill. Then serious disturbance was going on in the family and a dispute among the family members of the plaintiff was pending in High Court. Thus, the plaintiff was under terrible mental pressure as being tortured due to above. When such was the state of affair in the month of May, 1988, he fell ill. It is alleged that taking advantage of all these situations, the defendant no.1 in the garb of getting a power of attorney executed in his favour to look after the matters of the plaintiff; in connivance with the scribe and other witnesses created a sale deed and got it executed in respect of the suit land. The said sale deed is said to be the outcome of manipulation. The plaintiff never intended to sale the suit property to the defendant and he at that point of time was even aware of it. It is stated that the plaintiff believing that he and the defendant had gone to the Sub-Registrar for execution of a deed of power of attorney as it was so necessary then in the described situation had done everything. However, it was taken undue advantage of by the defendant, who managed to obtain the sale deed in respect of the suit land showing it to have been sold for a megre consideration of Rs. 4,000/- when the market price of the suit land at that relevant point of time was Rs. 1,00,000/- at the minimum. The plaintiff asserts that he was never aware of the nature of the said deed as sale deed nor its contents were ever read over and explained to him and in fact, he was then not in a fit state of mind. He under good faith just put his signatures at the places indicated in the deed and as desired by the scribe, who had also connived with the defendants. On a fine morning when the defendant threatened to dispossess the plaintiff advancing his right, title and possession based on the sale deed purported to have been executed by him in favour of the defendant, it was to the utter surprise of the plaintiff. So, he obtained the certified copy of the sale deed and found to his astonishment as to how fraud was practised upon him and the situations which were then prevailing have been taken undue advantage of. So, he obtained the certified copy of the sale deed and found to his astonishment as to how fraud was practised upon him and the situations which were then prevailing have been taken undue advantage of. It is also stated that the plaintiff had absolutely no necessity to execute the said sale deed. So, he filed the suit claiming the reliefs as already stated. 4. The defendants contested the suit by filing written statement. While traversing the plaint averments, they have stated that the plaintiff was all along mentally fit even after the death of his wife and he was running his business and managing the restaurant. It is also admitted that the natural born son of the plaintiff was not pulling well with him and then the defendant was looking after the plaintiff having good relationship with him. He claims to have never persuaded the plaintiff to execute any power of attorney to look after the case matter. It is stated that the plaintiff on his own wanted to install weight grind machine in order to have better earning and with a view to install such a machine, he was in need of money. So when he approached the defendant to finance for the same, he also out of his love and affection towards the defendant wanted to sale the eastern half of the disputed plot to him as he then is said to have given land to the western half of the disputed plot to his natural son Santosh. It is the further case of the defendant that as per the instruction of the plaintiff the sale deed was scribed and out of his free will and volition, after having fully understood the nature of the deed and its contents and he then signed on the sale deed. The defendant has denied the case of the plaintiff that he had ever managed to get the sale deed by practicing fraud or exercising undue influence over the plaintiff. He asserts the sale deed to be valid and genuine and claims that the title in respect of the suit land has flown to his hands by virtue of the said sale deed executed by the plaintiff for valuable consideration and he has been clothed with the title for the same. 5. With the above rival pleadings, the trial court framed seven issues. 5. With the above rival pleadings, the trial court framed seven issues. Taking up issue no.3 for decision at first, upon analysis of evidence at its level, answer has been rendered against the plaintiff. The sale deed has been held to be valid and genuine to have clothed the defendant with the title in respect of the suit land. In respect of issue no.4, the same answer has been given and those findings have practically led the trial court to dismiss the suit. 6. The unsuccessful plaintiff having moved the lower appellate court by carrying an appeal, there had arisen the need on the part of the lower appellate court to examine the pregnability of the findings of the trial court mainly in respect of the validity of the sale deed dated 11.05.1988 (Ext.1). The lower appellate court approached the matter by first of all given emphasis on the admitted relationship between the plaintiff and the defendant that the defendant is the adopted son of the plaintiff. In that view of the matter, it has placed the burden of proving the due execution of the sale deed and in turn its acceptability as also the right claimed by the defendant banking on it upon the defendant. It has then gone to examine the evidence of the defendant in the back drop of all the prevailing conditions and circumstances concerning the parties, their mental state as also the nature of the property in question to ascertain the sustainability of the transaction. The lower appellate court held that the trial court has erred in law by not approaching the matter in that way. At the end of that exercise, in the ultimatum the sale vide Ext.1 has been held to have not been duly established as such, repelling all the suspicious circumstances surrounding the same and accordingly the sale deed has been held to be invalid in the eye of law. Consequently, the finding has emerged that the defendant has acquired no right, title and interest over the suit land by virtue of that so-called sale deed (Ext.1). With the above, the trial court's findings have been negated and the judgment and decree non-suiting the plaintiff having been set aside, finally the suit has been decreed granting the relief as prayed for. 7. The appeal has been admitted on the following substantial questions of law. With the above, the trial court's findings have been negated and the judgment and decree non-suiting the plaintiff having been set aside, finally the suit has been decreed granting the relief as prayed for. 7. The appeal has been admitted on the following substantial questions of law. "(a) Whether any fiduciary relationship as to the adoption between the plaintiff (present sole respondent) and the defendants (present appellants) as held by the lower appellate court be elicited in view of lucid bar under the law and the conditions sine-qua-non for a valid adoption? (b) Whether the burden of proof can be shifted to the adversary in a case where a party instituting the suit based upon his own plea and allegation as to the factum of fraud?" 8. Learned counsel for the appellant submits that the lower appellate court without any legal justification has upset the findings of the trial court being simply swayed away by the relationship of the plaintiff and the defendant as that of the adoptive father and adopted son. According to him, law does not create a bar for the father to sale any immovable property to his son for valuable consideration and that itself is not a circumstance to be so viewed with suspicion against the validity of the transaction of sale. It is his next submission that the circumstances stated by the plaintiff to be prevailing then at the time of sale ought to have been held to be the creations for the purpose. It is submitted that when on his own showing the plaintiff is a literate person running a restaurant and carrying out business activity, simply because of this relationship, it was not proper on the part of the lower appellate court to place the burden of proof as regards the valid execution of the sale deed by the vendor being aware of the nature of the transaction and the contents thereon upon the dependent. According to him, it is not permissible in law in that case to call upon the vendee to establish all those. Thus, he contends that the lower appellate court instead of calling upon the plaintiff to establish the case of fraud and undue influence, misrepresentation etc. has erroneously cast the said liability upon the defendant. According to him, it is not permissible in law in that case to call upon the vendee to establish all those. Thus, he contends that the lower appellate court instead of calling upon the plaintiff to establish the case of fraud and undue influence, misrepresentation etc. has erroneously cast the said liability upon the defendant. He also submits that in the facts and circumstances of the case and in view of the evidence on record, the findings of the trial court are to be restored as those are just, proper, based on sound appreciation of evidence on record with the legal backing. 9. Learned counsel for the respondent, on the other hand, supports the findings of the lower appellate court and the judgment and decree passed in favour of the plaintiff. According to him, the trial court had committed grave error of law by overlooking the aspect that in view of the rival case of the parties, it was for the defendant to establish by leading, clear, cogent and acceptable evidence as to how he has acquired the right, title and interest over the suit land and that in the case in hand, necessarily, by proving valid execution of the sale deed by the vendor removing all the suspicious circumstances which are admitted as also have come out in evidence. It is his submission that in view of the relationship between the vendor and the vendee, the court is to proceed to approach the matter with due care and caution which has been rightly resorted to by the lower appellate court. He finally submits that the finding of the lower appellate court are unassailable being based on sound appreciation of evidence on record in the touchstone of the settled position of law covering the subject and the grave error both in law and fact as committed by the trial court having been duly rectified and set at right, no interference with the same is warranted. 10. Often the sale transactions between the parties in a fiduciary relationship are questioned on the ground of fraud, misrepresentation or undue influence. When fraud misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. 10. Often the sale transactions between the parties in a fiduciary relationship are questioned on the ground of fraud, misrepresentation or undue influence. When fraud misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position and he has to prove that there was fair play in the transaction and that the apparent is real, in other words that the transaction is genuine and bona fide. In such a case, the burden of proving the good faith in the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relationship to another has a duty to protect the interest given to his care and the Court watches with jealousy all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast against the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, and that no advantage has been taken of his position. 11. Section 111 of the Evidence Act says that when there is a question as the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence. In the case in hand the undisputed position stands that natural born son of the plaintiff was not pulling on well with the plaintiff and he was staying at a distant place. The defendant is the adopted son of the plaintiff whose wife died on 29.01.1988 whereas the transaction was taken place on 11.05.1988 just after three and half months. In the case in hand the undisputed position stands that natural born son of the plaintiff was not pulling on well with the plaintiff and he was staying at a distant place. The defendant is the adopted son of the plaintiff whose wife died on 29.01.1988 whereas the transaction was taken place on 11.05.1988 just after three and half months. So in such state of things and in that mental conditions there arises a reasonable inference, that the plaintiffs being dependent upon the defendant and the plaintiff must be then reposing confidence upon the defendant. So, even if fraud is alleged by the plaintiff because of the fiduciary relationship as also the prevailing circumstances as narrated above, the burden certainly lies on the defendant to prove due execution of the said deed by the plaintiff that it was his free and voluntary act both physical and mental. In the instant case accepting the parties none have been examined. The original defendant's wife is the lone witness from his side. None of the witnesses of the sale have been brought to the witness box. The original sale deed has also not seen the light of the day and instead its certified copy has been proved. There remains no such explanation. P.W.1 has no personal knowledge as regards execution of Ext.1. The scribe has also not come to depose that he had scribed the document as per the instruction of the plaintiff. The plaintiff has specifically stated that he had gone to execute the power of attorney in favour of the defendant and instead the sale deed has been taken out by the defendant in connivance with the scribe and witnesses to the deed. Thus the defendants being under the legal obligation to adduce clear, cogent and acceptable evidence in establishing the execution of Ext.1 are found to have failed in discharging that when the plaintiff has stated that at the point of time he has no necessity to sale the land and there was no passing of consideration in order to counter the same, there remains no evidence from the side of the defendants. Moreover, the very pleading of the defendants in the written statement that the plaintiff wanted to give half of the disputed plot to the original defendant as he had already given the other half to his natural born son, rather runs counter to the case of the defendant that there was a sale transaction with passing of consideration. Thus, it is seen that the defendants have utterly failed to discharge the burden of proof in sustaining the transaction (Ext.1) and this Court is unable to cull out any justifiable reason so as to arrive at a finding to the contrary. The discussions as above provide the answers to the substantial question of law framed for the purpose of admission of the appeal. No other substantial question of law has been urged in course of hearing of the appeal for being answered. 12. In the result, the appeal stands dismissed. In the facts and circumstances, there would be no order as to cost. Final Result : Dismissed