JUDGMENT : (M.I. ARUN, J.) Aggrieved by the judgment and decree dated 02.01.2018 passed by III Additional City Civil and Sessions Judge, Bengaluru in O.S.No.1620/2005, defendant no.1 therein has preferred this appeal. 2. For the sake of convenience, the parties are referred to as per their status before the trial court. 3. Plaintiff no.1 is the mother and plaintiff no.2 was her son. He has died subsequent to filing of the original suit and his wife was impleaded as plaintiff no.2(a). It is further submitted that at the time of filing of the present appeal, plaintiff no.2(a) has been impleaded as respondent no.2 herein. She also died during the course of the proceedings and her daughter has been impleaded as respondent no.2(a) in the present proceedings. 4. Plaintiffs were said to be the owners of the suit schedule property. The same has been sold in favour of defendant No.1 by virtue of a registered sale deed dated 27.02.2002 for a valuable sale consideration of Rs.1,80,000/-. It is the case of the plaintiffs that they never intended to sell the suit schedule property. It is submitted that they required money for their personal needs and defendant No.2 who was a private financier agreed to arrange for the same and it was agreed that a sum of Rs.1,80,000/- would be paid to the plaintiffs upon they executing a usufructuary mortgage deed in respect of the suit schedule property and believing his words, they had gone to the Sub-Registar's office and by playing fraud on them, the defendants have got executed a sale deed dated 27.02.2002 and the plaintiffs were unaware as to execution of the same as they don't know English, the language in which the sale deed is drafted. It is further contended that defendant no.2 has signed the document as a witness. It is also submitted that the plaintiffs have received only a sum of Rs.1,40,000/- by way of cash and the remaining Rs.40,000/- was in fact taken by defendant No.2. It is further contended that defendant no.2 has signed the document as a witness. It is also submitted that the plaintiffs have received only a sum of Rs.1,40,000/- by way of cash and the remaining Rs.40,000/- was in fact taken by defendant No.2. On the said grounds, the plaintiffs filed O.S.No.1620/2005 with the following prayers: "Wherefore, the plaintiffs pray that this Hon'ble court be pleased to pass a judgment and decree declaring: (a) For declaration that the sale deed dated 27/02/2002 registered as Document No.14668/2001-02 in Book-I, Volume No.2363, at pages 56-58 in the office of the Sub- Registrar, Krishnarajapuram, Bengaluru executed by the plaintiffs in favour of the defendant is voidable and the defendant did not acquire any interest under the sale deed; (b) For cancellation of the sale deed dated 27.02.2002 registered as Document No.14668/2001-02 in Book-I, Volume No.2363, at pages 56-58 in the office of the Sub- Registrar, Krishnarajapuram, Bengaluru to the defendant to deliver possession of the portion of the schedule property to the plaintiffs and plaintiffs are ready to deposit Rs.1,80,000/-. (bb) To direct the defendant no.1 and all other persons claiming under him to quit, vacate and deliver the vacant possession of the portions of the Schedule A premises in which they are in the unauthorized possession. (c) Restraining the defendant from interfering, meddling, trespassing or dispossession the plaintiffs from the schedule property by an order of permanent injunction; (d) Any other relief or reliefs as this Hon'ble court deems fit to grant in the circumstances of the case, in the interest of justice and equity." 5. Upon service of notice, defendant Nos.1 and 2 entered appearance before the trial court. However, defendant No.1 alone has contested the suit and defendant No.2 has not taken any interest in the same. Defendant No.1 has denied all the allegations made by the plaintiffs and has contended that what has been executed in his favour is a sale deed. It is submitted that the same has been voluntarily executed by the plaintiffs and there was no fraud or misrepresentation in execution of the same. Defendant No.1 has denied all the allegations made by the plaintiffs and has contended that what has been executed in his favour is a sale deed. It is submitted that the same has been voluntarily executed by the plaintiffs and there was no fraud or misrepresentation in execution of the same. It is further submitted that the suit schedule property consists of four portions and though the possession of the property was handed over to defendant No.1 upon execution of the sale deed, the plaintiffs requested some time to vacate one portion of the suit schedule property and took permission of defendant No.1 to stay in the property for some time. As they did not vacate even after considerable time, defendant No.1 took steps to have them vacated, which has resulted in the plaintiffs filing a false case against defendant No.1. It is further submitted that the khatha has been changed in the name of defendant No.1 and he has been paying the necessary taxes after purchase of the property. On the said grounds, it is prayed that the suit filed by the plaintiffs be dismissed. 6. Based on the pleadings, the trial court has framed the following issues. "ISSUES 1. Whether plaintiffs prove that they are the owners of the suit schedule property as alleged? 2. Whether plaintiffs prove that the defendant having approached them, they have executed mortgage deed in favour of the defendant in respect of plaint A schedule property, as alleged in para no.4 of the plaint? 3. Whether plaintiffs prove that the defendant played a fraud against them and misrepresenting and fraud created the mod into sale deed, as alleged? 4. Whether plaintiffs prove that the defendant is in possession of suit schedule A property, as a mortgagee only? 5. Whether defendant proves that he has purchased suit schedule property on 27.2.2002 for valuable consideration, as alleged in para No. 7 of W.S.? 6. Whether suit of the plaintiffs is properly valued and court fees paid is correct? 7. Whether suit of the plaintiffs is within time? 8. Whether plaintiffs are entitled to the reliefs sought for? 9. What order or decree?" 7. In order to prove the case, plaintiff No.1 got examined herself as PW.1 and two other witnesses as PWs.2 and 3 and got marked 138 documents as Exs.P1 to P138. 7. Whether suit of the plaintiffs is within time? 8. Whether plaintiffs are entitled to the reliefs sought for? 9. What order or decree?" 7. In order to prove the case, plaintiff No.1 got examined herself as PW.1 and two other witnesses as PWs.2 and 3 and got marked 138 documents as Exs.P1 to P138. Defendant No.1 got examined himself as DW.1 and got marked 39 documents as Exs.D1 to D39. 8. Based on the pleadings and the evidence let in, the trial court has answered the aforementioned issues as follows : "Issue No.1 – In the affirmative Issue No.2 – In the affirmative Issue No.3 – In the affirmative Issue No.4 – In the affirmative Issue No.5 – In the negative Issue No.6 – In the negative Issue No.7 – In the affirmative Issue No.8 – In the affirmative Issue No.9 – As per final order for the following" The trial court has passed the following: "ORDER Suit is decreed with costs. It is declared that the impugned sale deed dt.27.2.2002 is null and void and not binding on the plaintiffs. The defendant no.1 is directed to quit, vacate and hand over the vacant possession of the schedule A property within three months from the date of this judgement. The defendants are permanently restrained from interfering in the plaintiffs’ lawful possession and enjoyment of the remaining portion of the schedule property excluding the A schedule property. The plaintiffs shall pay the deficit court fee of Rs.20,655/- and office to prepare the decree only on payment of said fee." Aggrieved by the same, the present appeal is filed by defendant No.1. 9. During the pendency of the appeal, an impleading applicant by way of I.A.No.1/2025 has sought to implead himself in the proceedings to participate in the proceedings and assist the Court on the ground that plaintiff No.1 has sought to alienate the suit schedule property in his favour. As the appeal is being allowed in favour of defendant No.1 and also the impleading applicant would be a subsequent purchaser from plaintiff No.1, and hence, he would not acquire any right over the suit schedule property, the application-I.A.No.1/2025 is hereby dismissed. 10. As the appeal is being allowed in favour of defendant No.1 and also the impleading applicant would be a subsequent purchaser from plaintiff No.1, and hence, he would not acquire any right over the suit schedule property, the application-I.A.No.1/2025 is hereby dismissed. 10. The trial court based on the evidence let in has believed the version of the plaintiffs that a fraud was played against them in executing the sale deed and what they intended to do so was only to execute a mortgage deed for the amount received and on the said ground has decreed the suit. 11. The question that arises for consideration in the instant appeal is as under: Whether the trial court has properly appreciated the evidence to come to the conclusion that it has arrived at? 12. The burden of proof lies on the plaintiffs to establish the facts alleged by them. PW.1-plaintiff No.1 has reiterated her averments made in the plaint in her examination-in-chief. Ex.P1 is an agreement of sale executed by the vendor of plaintiff No.1 in her favour on 25.07.1996. The plaintiffs have sought to rely on the said document to show that the consideration for the site in the year 1996 was Rs.3,80,000/- which was much more than Rs.1,80,000/- mentioned in the sale deed said to have been executed in favour of defendant No.1 on 27.02.2002 for the same property. 13. Defendant No.1 has countered the same by stating that in order to save the stamp duty the consideration amount has been shown at lowest in the sale deed. In his evidence, he has stated that the actual amount of Rs.5,70,000/- for execution of the sale deed was paid to the plaintiffs. 14. PW.1 in her cross examination has admitted that the property consists of four portions and defendant No.1 is in possession of two portions and one Jayaraj is in possession in respect of one portion and that she is in possession of one portion. She has further stated that she has not paid the property taxes since 2001, though she has sought to justify the same by stating that she is a poor person. She has also admitted that the said Jayaraj is paying rents to defendant No.1 for the portion of the property which is under his occupation and that she has not taken any action regarding payment of rents. She has also admitted that the said Jayaraj is paying rents to defendant No.1 for the portion of the property which is under his occupation and that she has not taken any action regarding payment of rents. She has also admitted that defendant No.1 got issued a legal notice dated 03.02.2005 to the plaintiffs calling upon them to vacate the portion of the property which is in their possession. She has stated that she is not aware as to whether she has replied to the said notice or not. Admittedly, the suit has been filed subsequent to the said notice. She has also stated that it may be true that khatha and corporation records in respect of the property stand in the name of defendant No.1. She has further stated that in the year 2005 she came to know about execution of the sale deed instead of the mortgage deed and immediately she has filed the suit. She has also stated that she is not paying electricity and water bills in respect of three portions of the property and she is paying the same only in respect of one portion which is in her possession. 15. PW.2 is said to be a Secretary of one Mookambika Mahila Sangha. She has deposed on behalf of the plaintiffs and stated that it was agreed between the plaintiffs and defendant No.1 that defendant No.1 shall pay the plaintiffs a sum of Rs.1,80,000/- and a mortgage deed shall be executed by the plaintiffs. She has stated that she has not been a witness to execution of the document and she does not know whether the same was explained to the plaintiffs or not. In other words, she does not know whether the contents of the document (sale deed) was explained to the plaintiffs or not. 16. PW.3 has also stated that she knows the plaintiffs and the defendants and that it was agreed between the plaintiffs and the defendants to pay Rs.1,80,000/- to the plaintiffs by the defendants for which the plaintiffs would execute a mortgage deed. But, he has stated that no document was executed in his presence. 17. All other documents produced in the evidence by the plaintiffs does not reflect anything upon the transaction between the plaintiffs and defendant No.1. 18. Defendant No.1 on the other hand has reiterated his averments made in the written statement in his examination-in-chief. But, he has stated that no document was executed in his presence. 17. All other documents produced in the evidence by the plaintiffs does not reflect anything upon the transaction between the plaintiffs and defendant No.1. 18. Defendant No.1 on the other hand has reiterated his averments made in the written statement in his examination-in-chief. It is his specific contention that the sale deed has been executed voluntarily by the plaintiffs in his favour and there has been no misrepresentation or fraud. His evidence has not been impeached in the cross examination. 19. The admitted facts are that the registered sale deed at Ex.P2, the original of which is marked as Ex.D2, has been executed by the plaintiffs in favour of defendant No.1 for a valuable consideration of Rs.1,80,000/-, wherein the suit schedule property has been conveyed in favour of defendant no.1. It is not the case of the plaintiffs that the amount of Rs.1,80,000/- is below the valuation of the Sub- Registrar. The execution of the sale deed is not in dispute. 20. The contention of the plaintiffs is that they were made to execute the sale deed by playing fraud on them making them to believe that they were executing a mortgage deed. The burden of proving the same is on the plaintiffs. Except making an averment in the plaint as well as in the evidence let in, no other evidence is adduced either documentary or circumstantial to show that any fraud has been played on them. The sole contention is that plaintiff No.1 did not understand English and the sale deed has been executed in English. Perusal of Ex.D2 shows the sale deed executed by both plaintiff No.1 (mother) and plaintiff No.2 (son) where plaintiff No.1 has signed in Kannada and plantiff No.2 has signed the same in English. The signature of plaintiff No.2 is not denied by plaintiff No.1. The plaintiffs have not examined any of the witnesses to the sale deed. It is also seen that the sale deed is executed on 27.02.2002. Thereafter, two portions of the suit schedule property is in the possession of defendant No.1 and one portion is let out to one Jayaraj who pays rent to defendant No.1 and only one portion is with the plaintiffs. This is admitted by them in their evidence. It is also seen that the sale deed is executed on 27.02.2002. Thereafter, two portions of the suit schedule property is in the possession of defendant No.1 and one portion is let out to one Jayaraj who pays rent to defendant No.1 and only one portion is with the plaintiffs. This is admitted by them in their evidence. The case of defendant No.1 is that the plaintiffs requested to stay in a portion of the property for some time before they found an alternative accommodation and he permitted them to do so, which is very much believable. It is also seen that the plaintiff has subsequently executed several documents in English and the plaint is also in English. Further, the suit is filed only after defendant No.1 initiated action against the plaintiffs to have them vacated from the suit schedule property. Under the said circumstances, one has to conclude that the execution of the sale deed in favour of defendant No.1 leads to a presumption that the same is valid in law and the plaintiffs having failed to prove otherwise and for that reason, the suit is liable to be dismissed. 21. Unfortunately, the trial court, though has framed the issues properly, has in its judgment based on the premise that the defendants have failed to prove their case, has decreed the suit. This is erroneous. The plaintiffs having failed to prove their case, the suit ought to have been dismissed. 22. Hence, the following: ORDER (i) The appeal is allowed; (ii) The judgment and decree dated 02.01.2018 passed by III Additional City Civil and Sessions Judge, Bengaluru in O.S.No.1620/2005 is hereby set aside; (iii) O.S.No.1620/2005 on the file of III Additional City Civil and Sessions Judge, Bengaluru is dismissed; (iv) Pending applications, if any, stand disposed of.