TaxTMI 
TaxTMI 
2006 (5) TMI 515
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....ed by the Punjab and Haryana High Court at Chandigarh in Civil Revision No. 1077 of 2005 dismissing his revision application arising out of an order dated 9.2.2005 passed by the Civil Judge (Junior Division), Chandigarh. 3. An agreement to sell dated 26.03.1990 was entered into by and between the parties hereto in relation to the premises bearing House No. 86, situate in Sector 18A, Chandigarh. A sale deed was executed pursuant to the said agreement to sell on 27.03.1991. However, a suit for declaration was filed by the respondent herein alleging that the said sale deed dated 26.3.1991 was a forged, fabricated and was a void document. The appellant filed his written statement in the said suit denying or disputing the allegations containe....
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....other hand, it is the case of the defendant that the said sale deed is valid and genuine document. The sale deed itself is in possession of the defendant. In such a situation, the defendant is in a dominating position to prove the document affirmatively, whereas it will be difficult for the plaintiff to prove the same. Negatively, who is not even in possession of the sale deed in question. After the defendant proves the validity and genuineness of the sale deed, the turn will come of the plaintiff to prove the document negatively. In this view of the matter, I am of the considered opinion that the trial court has rightly re- framed issue No. 2 and put the onus on the defendant to prove whether the same is valid and genuine document. There i....
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....s made in the plaint. 8. Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side. 9. The fact that the defendant was in a dom....
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....tation or undue influence is upon the person, in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of 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 relation to another has a duty to protect the interest given to his care and the Court watches with jealously 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 ag....
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....aintiff fails to prove the existence of the fiduciary relationship or the position of active confidence held by the defendant- appellant, the burden would lie on him as he had alleged fraud. The trial Court and the High Court, therefore, in our opinion, cannot be said to be correct in holding that without anything further, the burden of proof would be on the defendant. The learned trial Judge has misdirected himself in proceeding on the premise "it is always difficult to prove the same in negative a person/party in the suit." 14. Difficulties which may be faced by a party to the lis can never be determinative of the question as to upon whom the burden of proof would lie. The learned Trial Judge, therefore, posed unto himself a wrong q....
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....cumstances, if any, which would disentitle the plaintiff to the same. 16. In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Anr. [JT 2004 (6) SC 442], the law is stated in the following terms : "29. In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma v. A. Chenchamma there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting....