JUDGMENT Hon’ble Surya Prakash Kesarwani, J.—Heard Sri M.A. Qadeer, learned senior Advocate assisted by Sri Shakti Dhar Dubey, learned counsel for the appellant/defendant No. 6 and Sri C.L. Pandey, learned senior Advocate assisted by Sri K.K. Mani, learned counsel for the plaintiff respondent No. 1. Submissions of the parties: 2. Learned counsel for the defendant-appellant submits as under: (i) No cause of action accrued as per plaint within the jurisdiction of District Court, Ballia rather as per allegations in the plaint, the cause of action accrued at Ranchi and, therefore, the suit filed by the plaintiff respondent No. 1 at Ballia, was not maintainable due to lack of territorial jurisdiction. (ii) The plaintiff respondent No. 1 failed to prove that there was any concluded contract between the plaintiff-respondent No. 1 and the defendant appellant. He neither led any evidence in this regard nor filed in evidence the alleged allotment order of 1620 MT coal. (iii) The plaintiff respondent No. 1 miserably failed to prove and place any evidence on record that the alleged payment of Rs. 4,10,000/-, was made by him to the defendant-appellant. Neither complete particulars of the alleged two bank-drafts including the name of the bank, the issuing branch and denomination of each bank drafts, were disclosed in the plaint nor any evidence in this regard were filed and as such the Court below committed a manifest error of law and facts to decree the suit without there being any evidence of payment of Rs. 4,10,000/- by the plaintiff-respondent No. 1 to the defendant appellant through alleged bank-drafts. 3. In support of his submissions, learned counsel for the appellant has referred to the contents of notice dated 3.7.1985 (paper No. 54Ga/1) under Section 80 C.P.C., various paragraphs of the plaint (paper No. 88Ka/2), cross-examination of the plaintiff-respondent No. 1 dated 15.3.2008 (paper No. 88Ka/2/10), letters of the plaintiff-respondent No. 1 dated 21.9.1984 (paper No. 54ga/11), dated 12.10.1984 (paper No. 54Ga/12), dated 26.11.1984 (paper No. 54Ga/14) and dated 15.10.1984 (paper No. 54Ga/15), FIR dated 11.6.1987 lodged by the Supply Inspector, District Ballia showing commission of offence on 2.8.1984 (paper No. 72Ga/1), and statements of DW-1 dated 1.4.2008 and 2.4.2008 (paper No. 98A2). 4. Sri C.L. Pandey, learned senior Advocate for the plaintiff respondent No. 1 submits that in 1984, there was a coordinated system of supply of coal by the State Government and the coal companies. 4. Sri C.L. Pandey, learned senior Advocate for the plaintiff respondent No. 1 submits that in 1984, there was a coordinated system of supply of coal by the State Government and the coal companies. There were two systems of supply namely linkage system and sponsorship system. Under the sponsorship system, the plaintiff respondent No. 1 applied before the District Supply Officer, Ballia for supply of 2000 MT coal. The application was processed and recommendation was made by the Director of Movement U.P. Lucknow, who issued permit of 1620 MT coal, a copy of which was sent to the defendant appellant and pursuant thereto, the plaintiff respondent No. 1 deposited a sum of Rs. 4,10,000/- for obtaining the supply and as such the cause of action arose within the territorial jurisdiction of Civil Court, Ballia. Thus, no error was committed by the Court below while deciding issue No. 6 by order dated 28.11.2007 on the question of jurisdiction. 5. He further submits that pursuant to the aforesaid permit, the plaintiff-respondent No. 1 deposited a sum of Rs. 4,10,000/- with the defendant appellant through two bank drafts totalling Rs. 4,10,000/- but the supply was neither made to the plaintiff respondent No. 1 nor the defendant appellant refunded the amount and consequently, the suit was lawfully decreed by the Court below. The onus to prove that the aforesaid two bank drafts were not received, was on the defendant appellant which they completely failed to prove while the plaintiff respondent No. 1 had proved by evidence that the aforesaid two bank drafts were given to the defendant appellant and the payment of 1620 MT coal was received by them from the plaintiff respondent No. 1. He refers to two supply orders dated 28.9.1984 and 25.10.1984 for supply of 150 MT and 50 MT coal issued by the defendant appellant, copies of which have been filed as Annexures-5 and 6 to the affidavit accompanying the stay application of the defendant appellant. On the basis of these two papers, he submits that payment of a sum of Rs. 4,10,000/- was received by the defendant appellant. He admits that these two papers were not filed in evidence by the defendant appellant or the plaintiff respondent No. 1 either before the Court below or before this Court. 6. On the basis of these two papers, he submits that payment of a sum of Rs. 4,10,000/- was received by the defendant appellant. He admits that these two papers were not filed in evidence by the defendant appellant or the plaintiff respondent No. 1 either before the Court below or before this Court. 6. In support of his submissions on the question of territorial jurisdiction, he relied upon a Division Bench judgment of this Court in the case of Mamta Coal and Coke Pvt. Ltd. and others v. State of U.P. and others, 1993 (1) EFR 208 (para-11) and another Division Bench judgment in the case of M/s Singh Coal Traders v. General Manager (Sales) Northern Coal Fields Ltd. Singrauli and another, 1991 (2) EFR 324. With respect to burden of proof, he relied upon a decision of this Court in the case of Dhanesra and two others v. Smt. Sabira, 2004 (2) AWC 1686 (LB) and Sobaran Singh and another v. Shyam Singh, 2004 (2) AWC 1094 (para-13). 7. Replying the submissions in rejoinder, Sri Qadeer, learned senior Advocate submits that the plaintiff-respondent No. 1 could not even point out before this Court that what was the amount of each bank drafts, by which bank and branch it was issued and when it was delivered to the defendant appellant. He submitted that there was no evidence filed by the plaintiff respondent No. 1 that the aforesaid two alleged bank drafts were received and encashed by the defendant-appellant. No evidence of issuance of permit of 1620 MT coal, was filed by the plaintiff respondent No. 1. Two supply orders filed as Annexures 5 and 6 to the affidavit accompanying the stay application and relied by the plaintiff respondent No. 1 before this Court, do not support the case of the plaintiff respondent No. 1 inasmuch as in both the aforesaid two supply orders, separate receipts of Rs. 37203/- and Rs. 9303.15 being cost for supply of specific quantity of coal of 150 MT and 50 MT respectively, are mentioned. It goes to show that the case set up by the plaintiff-respondent No. 1 for payment of Rs. 4,10,000/- through two alleged bank drafts, is wholly baseless and without any evidence on record. He also admits that these two supply orders were neither filed in evidence before the Court below nor have been filed as additional evidence before this Court. It goes to show that the case set up by the plaintiff-respondent No. 1 for payment of Rs. 4,10,000/- through two alleged bank drafts, is wholly baseless and without any evidence on record. He also admits that these two supply orders were neither filed in evidence before the Court below nor have been filed as additional evidence before this Court. Facts, Discussion and Findings : 8. I have carefully considered the submissions of the learned counsel for the parties and with their consent, following three points are framed to decide the controversy involved in this appeal: (i) Whether the Court of of Civil Judge (S.D.), Ballia was having territorial jurisdiction to entertain the O.S. No. 147 of 2006, Janardan Singh v. State of U.P. and others. (ii) Whether there was a concluded contract between the defendant-appellant and the plaintiff-respondent No. 1 for supply of 1620 MT coal. (iii) Whether the plaintiff respondent No. 1 has made payment of Rs. 4,10,000/- through alleged two bank drafts to the defendant-appellant and the payment was proved by the plaintiff-respondent No. 1. 9. Point No. (i) Whether the Court of of Civil Judge (S.D.), Ballia was having territorial jurisdiction to entertain the O.S. No. 147 of 2006, Janardan Singh v. State of U.P. and others: So far as question of territorial jurisdiction is concerned, it has not been disputed by the defendant-appellant that under the sponsorship system of supply of coal, application was used to be moved before the District Supply Officer of the District concerned who could recommend and send the application to the Director of Movement U.P., Lucknow and on consideration of the application, a permit could be issued by the Director of Movement U.P. Lucknow to be sent to the Coal Company concerned and thereupon, applicant could obtain supply of coal. There is no denial of the fact that an application was moved by the plaintiff respondent No. 1 before the District Supply Officer, Ballia and the same was processed by the authorities concerned. However, the receipt of the alleged payment for supply of coal and issuance of permit have been denied by the defendant-appellant. Thus, cause of action arose within the territorial jurisdiction of District Court, Ballia. The Court below has considered the question of jurisdiction while deciding issue No. 6. I do not find any illegality in the judgment of the Court below on the question of territorial jurisdiction. Thus, cause of action arose within the territorial jurisdiction of District Court, Ballia. The Court below has considered the question of jurisdiction while deciding issue No. 6. I do not find any illegality in the judgment of the Court below on the question of territorial jurisdiction. Consequently, it is held that the issue No. 6 regarding territorial jurisdiction of Civil Court, Ballia, was lawfully decided by the Court below. 10. Point No. (ii) Whether there was a concluded contract between the defendant-appellant and the plaintiff-respondent No. 1 for supply of 1620 MT coal AND Point No. (iii) Whether the plaintiff respondent No. 1 has made payment of Rs. 4,10,000/- through alleged two bank drafts to the defendant-appellant and the payment was proved by the plaintiff-respondent No. 1: The points No. (ii) and (iii) framed above, are interlinked and therefore, they are being decided together. In the impugned judgment, while deciding issues No. 1, 2 and 3, the Court below recorded a finding that a sum of Rs. 4,10,000/- was paid by the plaintiff-respondent No. 1 to the defendant-appellant through two bank drafts dated 24.9.1984 and 26.9.1984. To reach to the aforesaid conclusion, the Court below has relied upon the contents of the FIR dated 11.6.1987, the assessment order passed by the Sales Tax Officer, Ballia (paper No. 129Ga), the oral evidence of P.W.-1, oral evidence of OPW-1, Sri Sunil Kumar Singh and failure of the defendant-appellant to disprove that the aforesaid two alleged bank drafts were not received by them. While recording the aforesaid finding, the Court below has drawn adverse inference against the defendant-appellant on the ground that since bank draft numbers were disclosed and as such it was the responsibility of the defendant-appellant to prove that they have not deposited these bank drafts in their account or these bank drafts were not submitted by the plaintiff respondent No. 1 with them and the same were not encashed. 11. The plaintiff respondent No. 1 issued a notice dated 3.7.1985 (paper No. 54Ga/1) under Section 80 C.P.C. to the defendant-appellant and five others. In paragraph-8 of the notice, it was merely stated that bank drafts dated 24.9.1984 and 26.9.1984 amounting to Rs. 4,10,000/-, were deposited with the defendant-appellant against supply of 1620 MT coal. In paragraph-8 of the plaint (paper No. 50ka), same averment was made. In paragraph-8 of the notice, it was merely stated that bank drafts dated 24.9.1984 and 26.9.1984 amounting to Rs. 4,10,000/-, were deposited with the defendant-appellant against supply of 1620 MT coal. In paragraph-8 of the plaint (paper No. 50ka), same averment was made. Neither in the notice under Section 80 C.P.C. nor in the plaint, the plaintiff-respondent No. 1 has disclosed any particulars of the amount of each bank drafts, the name of the bank and the issuing branch. The plaintiff respondent No. 1 gave his oral evidence on 19.12.2007 (paper No. 88Ga/2). Neither in the notice under Section 80 C.P.C. nor in the plaint, the plaintiff-respondent No. 1 has disclosed any particulars of the amount of each bank drafts, the name of the bank and the issuing branch. The plaintiff respondent No. 1 gave his oral evidence on 19.12.2007 (paper No. 88Ga/2). In his cross-examination dated 15.3.2008 (paper No. 88Ga/2), he stated as under: ^^l'kiFk ftjg lk{kh tuknZu flag iq= Jh c`tuanu flag us dgk fd MªkV ls iSlk tek djrs le; izkFkZuki= fn;k FkkA ftldh izfr yh FkhA izkFkZuki= esa cSad MªkV ij fy[kk FkkA jlhn esjs ikl ugh gS esjs lkFk tks vkneh Fkk mlds ikl gSA mudk uke rkjk 'kadj mik/;k; gSA rkjk 'kadj mik/;k; esjh QeZ dk dk;Z ns[krs FksA rkjk 'kadj mik/;k; esjh QeZ esa dk;Z djrs FksA bl ckr dk fyf[kr izek.k ugh gSA MªkV ua0 3106 fdl cSad ls cuok;k Fkk] ;kn ugha gSA mlesa fdruh /kujkf'k vafdr Fkh] ;kn ugh gSA nwljk MªkV MhŒ,yŒ 065853@461 fnukad 24-9-84 rkjk 'kadj mik/;k; nksuks MªkV cuokdj yk;s FksA nksuks eSaus gh ns[kk FkkA eSa cSad x;k FkkA udn ysdj x;k FkkA eSus iSlk udn lw;Z nso flag] fuoklh /kuckn ls fy;k FkkA dtZ ugh fy;k FkkA lEcU/k vPNs gksus ds ukrs iSlk eq>s fn;k FkkA eSus MªkV dk fooj.k fn;k gSA eSus cSad ls ;g ekywe ugh fd;k Fkk fd MªkV dk Hkqxrku gks x;k gSA cSad ls dksbZ izek.ki= MªkV ds lEcU/k esa ugh fy;k FkkA ds0,l0Vh0 QkeZ eSus tek ugh fd;k FkkA eSus lsy VSDl vkfQl ls QkeZ fy;k FkkA ysfdu MªkV ds le; ysdj ugh x;k FkkA lh,lVh QkeZ dks;yk ysus ds fy;s tek djuk t:jh gksrk gSA vHkh eSus ;g dgk Fkk fd nks fnu esa QkeZ tek dj nsxsa eSus lh,lVh QkeZ tek ugh fd;k gSA eSus viuk iSlk ysus ds fy;s dksbZ izkFkZuki= ugh fn;k gS eSus lIykbZ vkfQl ds fy;s iSls ds lEcU/k esa fy[kk FkkA esjk dksbZ fookn rkjk 'kadj mik/;k; ls ugh gSA ,QvkbZvkj ls igys esjh fy[kk i<+h py jgh FkhA uksfVl eSus ,QvkbZvkj ds ckn fnyk;k ;k ugh] ugh ekyweA esjs f[kykQ ,QvkbZvkj ntZ gqbZ FkhA ,QvkbZvkj blfy;s gqbZ fd eSus Åij vf/kdkfj;ksa ds f[kykQ f'kdk;r dh FkhA ftlls dqN vf/kdkjh fuyfEcr gq,A bldk fyf[kr izek.k esjs ikl ugh gSA LikUljf'ki tkjh gksus ds ckn ftyk iwfrZ vf/kdkjh dh Hkwfedk jgrh gSA eSus ftykiwfrZ vf/kdkjh dks 15-10-1984 dks lwpuk nhA rFkk MkjDVj vkWQ ewohesaV dks lwpuk fnuakd 10-10-1984 dks lhlh,y ds eSustj dks lwpuk nhA eSus iSls tek djus dh ckr fy[kh FkhA ;g dguk xyr gS fd eS LikUlj'khi dks csprk FkkA ;g dguk Hkh xyr gS fd cSad MªkVksa dk dksbZ otwn uk gksA eS lsUVªy dksy fQYMl eas dksbZ iSlk u tek fd;k gksA** 12. Thus, in his cross-examination, the plaintiff-respondent No. 1 stated that one Sri Tara Shankar Upadhyay was looking after the work of his firm, he did not remember from which bank he got prepared the bank drafts, he has no receipt, he did not remember what was the amount mentioned in the bank drafts, he went to the bank carrying cash for preparation of bank drafts which amount was taken by him from one Sri Surya Dev Singh of Dhanbad but he did not remember name of the bank and he had neither inquired from the bank whether the bank drafts were encashed nor any certificate was obtained from the bank. He further stated that both the bank drafts were got prepared by Sri Tara Shankar Upadhyay. He also stated that he has not moved any application for refund of his money and he has no dispute with Sri Tara Shankar Upahyay. In his letter dated 12.10.1984 (paper No. 54Ga/12) addressed to the Director of Movement U.P. Lucknow, he alleged that the aforesaid Sri Tara Shankar Upahdyay is the proprietor of M/s Chandra Coal Agency Bada Garaha, Ballia and has submitted forged papers and fraudulently completed formalities to obtain supply of coal and, therefore, the delivery of coal be stopped. In the aforesaid paper No. 54Ga/12, he made allegations of forgery against Sri Tara Shankar Upadhayay but in his cross-examination dated 15.3.2008 (paper No. 88Ka/2), he stated that he has no dispute with Sri Tara Shankar Upadhyay who got prepared the aforesaid two bank drafts. Thus own evidence of plaintiff-respondent No. 1 (PW-1) dated 15.3.2008 (paper No. 88Ka/2/10) clearly indicates that he completely failed to give particulars of the two alleged bank drafts. He has not even disclosed the name of the bank and the issuing branch from where he allegedly got prepared two bank drafts. He also did not produce Sri Tara Shankar Upadhayay in evidence. Thus, in the absence of disclosure of particulars of the alleged two bank drafts and any receipt of the defendant appellant, there was no occasion for the defendant-appellant who are said to receive thousands of bank drafts every day, to give negative evidence that the alleged two bank drafts were not encashed by them. In his afore-quoted cross-examination, he made conflicting statement. In his afore-quoted cross-examination, he made conflicting statement. His statement that he himself alongwith one Sri Tara Shankar Upadhyay went to the bank carrying money for preparation of two bank-drafts totalling Rs. 4,10,000/-, is wholly unbelievable and not supported by any evidence inasmuch as he could neither file receipts for preparation of bank-drafts nor could disclose the name of the bank and the branch issuing the alleged bank-drafts nor could disclose the denomination of the alleged two bank-drafts. He had not even produced in evidence the aforesaid Sri Tara Shankar Upathyay. 13. The finding of the Court below that the defendant-appellant should have obtained a certificate from the bank regarding non-encashment of the bank drafts, was to put a negative burden on the defendant-appellant and that too in the circumstances when absolutely no relevant particulars of the alleged two bank drafts were disclosed by the plaintiff respondent No. 1. The defendant-appellant has clearly denied the receipt of alleged two bank drafts. 14. In his evidence dated 1.4.2008 and 2.4.2008 (paper No. 98A/2), Sri Sunil Kumar Singh (DW-1), clearly stated as under: ^^;g fd oknh }kjk izLrqr okn esa o"kZ 1984 esa 1620 fefVªd Vu dks;ys ds vkoaVu dk dFku fd;k x;k gSA mDr vof/k eas dks;ys ds ewY; dk dksbZ cSad MªkV rFkk lsUVªy dksy fQYM fyfeVsM njHkaxk gkml jkaph ds uke nh x;h LikUlj'khi vkMZj dh 6&7 izfr fyfi;ka tks lacaf/kr LFkkuksa ij Hksth x;h gS] muesa ls ,d vkosnu i= ,oa cSad MªkV ds lkFk lsUVªy dksy fQYM ds lacaf/kr dk;kZy; esa tek fd;k tkuk FkkA ijUrq oknh }kjk dksbZ Hkh cSad MªkV o vkosnu i= lsUVªy dksy fQYM fyfeVsM ds fdlh Hkh dk;kZy; esa tek ugh fd;k x;k gSA ;g fd oknh }kjk fnukad 24-09-1984 ;k fnukad 26-09-1984 ;k fnukad 21-09-1984 vFkok fdlh fnu MªkV ua0 3106 vFkok MªkV ua0 Vh0 ,y0 065853@451 vFkok dksbZ Hkh cSad MªkV lsUVªy dksy fQYM fyfeVsM ds lacafèkr dk;kZy; esa ugh tek fd;k x;k gSA** 15. In paragraph-9 of the written statement (paper No. 61ka/1), the defendant-appellant clearly stated that the plaint is vague and no required information is furnished, no details of so called bank drafts of Rs. 4,10,000/- is given and no document showing payment to the defendant-appellant, i.e. the receipts have been filed or referred in the plaint itself. In paragraph-9 of the written statement (paper No. 61ka/1), the defendant-appellant clearly stated that the plaint is vague and no required information is furnished, no details of so called bank drafts of Rs. 4,10,000/- is given and no document showing payment to the defendant-appellant, i.e. the receipts have been filed or referred in the plaint itself. In paragraph-11 of the written statement, it was clearly mentioned that no documents showing details of link, i.e. the basis of allotment of coal or the demand drafts or details regarding bank and branch etc. have been furnished in the plaint and no bank statement showing credit/debit and encashment details are furnished in the plaint or in evidence. No details regarding the area of CCL/Colliery/Project office where the alleged amount was deposited, has been given in the plaint. 16. The mechanism of supply of coal has been briefly mentioned in paragraph-12 of the written statement. In paragraph-15 of the written statement, the contents of paragraphs 7 and 8 of the plaint, were denied being vague and devoid of information. It was further stated that the plaintiff claimed having deposited bank drafts of Rs. 4,10,000/- on 24.9.1984 and 21.9.1984 but has not given any details in this regard about those bank drafts, their numbers, date, name of issuing bank nor has produced the copy of the sale order which ought to have been issued to him or his unit as the case may be. The contents of paragraphs 15 and 16 of the plaint, were denied in paragraphs 21 and 22 of the written statement being wholly incorrect and baseless. 17. A perusal of the aforementioned pleadings and evidences, leave no manner of doubt that the plaintiff-respondent No. 1 has completely failed to establish that payment of a sum of Rs. 4,10,000/- was made by him to the defendant-appellant through alleged two bank drafts and there was a concluded contract between him and the defendant appellant for supply of 1620 MT coal. The plaintiff-respondent No. 1 has set up the case and filed the suit on the ground that he had made payment to the defendant-appellant through two bank drafts totalling to Rs. 4,10,000/- and as such burden was on him to disclose full particulars of alleged two bank-drafts and to prove that those alleged bank drafts were received by the defendant-appellants against supply of coal and the same were encashed by them. 18. 4,10,000/- and as such burden was on him to disclose full particulars of alleged two bank-drafts and to prove that those alleged bank drafts were received by the defendant-appellants against supply of coal and the same were encashed by them. 18. The Court below, as evident from the pleadings briefly noted above; has missed the basic principle that a suit has to be tried on the basis of the pleadings of contesting parties which is filed in the suit in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting defendant in the form of issues emerging out of that. 19. Section 101 of the Indian Evidence Act defines the phrase “burden of proof” 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.” 20. The aforesaid provision clearly provides that the burden of proof of fact, always lies upon the person who asserts it. Until such burden is discharged, the other party is not required to be called upon to prove his case. The Court has to examine as to whether the person upon whom the burden lies, has been able to discharge his burden and until the Court arrives at such a conclusion, it may not proceed on the basis of weakness of the other party. In the present set of facts, the plaintiff-respondent No. 1 has alleged that he made the payment of Rs. 4,10,000/- through two bank drafts to the defendant-appellant but could not prove it. Neither in the notice under Section 80 C.P.C. nor in the plaint nor in his any evidence, the plaintiff-respondent No. 1 has disclosed the particulars of the alleged bank drafts, namely, the name of the issuing bank and branch, amount of each bank draft and the receipts. He has also not filed any evidence to establish that the alleged two bank drafts were given to the defendant-appellant as payment against alleged supply of 1620 MT coal. He had also not filed any certificate of the issuing bank that the alleged two bank drafts were encashed by the defendant appellant. He has also not filed any evidence to establish that the alleged two bank drafts were given to the defendant-appellant as payment against alleged supply of 1620 MT coal. He had also not filed any certificate of the issuing bank that the alleged two bank drafts were encashed by the defendant appellant. Neither there was any pleading in the plaint nor any evidence was led by the plaintiff respondent No. 1 that the alleged two bank drafts were prepared in the name of the defendant-appellant. Thus, in view of the provisions of Section 101 of the Evidence Act, 1872, the burden was on the plaintiff-respondent No. 1 to prove the fact of making payment of Rs. 4,10,000/- to the defendant-appellant through the alleged two bank drafts which he miserably failed to do. 21. The elementary Rule under Section 101 of the Evidence Act, is inflexible. Ordinarily, the burden to prove the fact rests on the party who substantially asserts affirmative of the issue and not on the party who denies it. In terms of Section 102 of the Act, the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would dis-entitle the plaintiff to the relief. In the case of Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558 (para-19), Hon’ble Supreme Court held that a distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. 22. In the case of Rangmmal v. Kuppuswami and another, (2011) 12 SCC 220 (para-21), Hon’ble Supreme Court held that Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lies upon the person who asserts the fact. 22. In the case of Rangmmal v. Kuppuswami and another, (2011) 12 SCC 220 (para-21), Hon’ble Supreme Court held that Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lies upon the person who asserts the fact. Until such burden is discharged, the other party is not required to be called upon to prove his case. The Court has to examine as to whether the person upon whom burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party. In paragraph 29 of the judgment, Supreme Court further held that the party who alleged the sale-deed to be not genuine, sham or bogus, had to prove nothing until the party relying upon the document, establishes its genuineness. In the present set of facts, the plaintiff respondent No. 1 has neither proved the alleged two bank drafts nor its encashment by the defendant appellant and thus failed to discharge the buraden to prove. 23. Apart from this, the evidences led by the plaintiff respondent No. 1 and the defendant-appellant clearly shows that the plaintiff respondent No. 1 has completely failed to establish that the alleged two bank drafts in question were got prepared by him and were given by him to the defendant-appellant towards cost of 1620 MT coal. In the case of Bala Shankar Mama Shankar Bhattji v. Charity Commissoner, Gujrat State, 1995 Suppl. (1) SCC 485 (para-19), Hon’ble Supreme Court held that burden of proof would mean that a party has to prove an allegation before he is entitled to a judgment in his favour. Either of the two contending parties has to introduce evidence on a contested issue. The question of onus is material only when the party on which it is placed, would eventually lose if he failed to discharge the same. Where, however, parties joined the issue and led evidence then such evidence can be weighed in order to determine the issue and in that situation, the question of burden becomes academic. 24. The question of onus is material only when the party on which it is placed, would eventually lose if he failed to discharge the same. Where, however, parties joined the issue and led evidence then such evidence can be weighed in order to determine the issue and in that situation, the question of burden becomes academic. 24. In Subhra Mukherjee v. Bharat Coling Coal Ltd., (2000) 3 SCC 312 , Hon’ble Supreme Court held that the party that makes allegation, must prove it but where the question before the Court was “whether the transaction in question was a bona fide and genuine one” the party relying upon the transaction has to prove its genuineness first and only thereafter would the defendant be required to dislodge such proof and prove that the transaction was sham and fictitious. 25. In the case of Deena v. Union of India, 1983 (4) SCC 645 , Hon’ble Supreme Court held that the question of burden of proof ceases to have the same importance when the entire evidence is before the Court, each side having placed before it such material as it considers necessary to support its case. But then, the fact that parties have produced their respective data before the Court does not absolve the Court from considering the question whether, on the basis of the entire material before it, the burden can be said to have been discharged by the party on whom it lies. 26. The plaintiff-respondent No. 1 completely failed to lay any evidence to establish that he made payment to the defendant-appellant through the alleged two bank drafts. In the case of State of J. & K. v. Hindustan Forest Company, (2006) 12 SCC 198 , Hon’ble Supreme Court held that the onus is on the plaintiff to establish positively its case on the basis of material available and it cannot rely on the weakness or absence of defence to discharge onus. In the case of Corporation of City of Bengalore v. Zulekha Bi, (2008) 11 SCC 306 , it was held that it is for the plaintiff to prove his title to the property. 27. In the case of Corporation of City of Bengalore v. Zulekha Bi, (2008) 11 SCC 306 , it was held that it is for the plaintiff to prove his title to the property. 27. In the judgment of this Court in the case of Sobaran Singh v. Shyam Singh (supra) relied by the learned counsel for the plaintiff-respondent No. 1, it was held that the parties cannot be permitted to travel beyond from pleadings and no evidence can be looked into with respect to which there is no pleading. This judgment does not support the case of the plaintiff respondent. 28. In the case of Dhanesra v. Smt. Sabira (supra), the Court was considering the provisions of Section 11 of the Evidence Act which deals with the situation that when fact not otherwise relevant becomes relevant. 29. In view of the above discussion, the impugned judgment and decree passed by the Court of Civil Judge (S.D.), Ballia, Court No. 9 in O.S. No. 147 of 2006, Janardan Singh, Proprietor, Anuj Coal Agency v. State of U.P. and five others, is hereby set aside and the plaintiff’s suit is dismissed with costs. 30. Any amount deposited by the defendant-appellant in terms of the interim order dated 5.11.2008 passed in this first appeal, shall be returned to the defendant-appellant by the Court concerned within a month alongwith interest accrued on such deposit, if any. 31. Appeal is allowed as indicated above.