ANIL RISHI versus GURBAKSH SINGH

Citation: [2006] SUPP. 1 S.C.R. 659 · Decided: 02-05-2006 · Supreme Court of India · Bench: S.B. SINHA, P.K. BALASUBRAMANYAN · Disposal: Appeal(s) allowed

Judgment (excerpt)

ANILRISHI 
A 
v. 
GURBAKSH SINGH 
MAY 2, 2006 
[S.B. SINHA AND P.K. BALASUBRAMANY AN, JJ.] 
B 
Evidence Act, I872: 
ss. JOI and I02-Burden of proof-Suit for declaring sale deed as 
void-Forgery and fabrication of document alleged-Held, with a view to C 
prove forgery or fabrication in a document, possession of the same by 
defendant would not change legal position-Initial burden of proof would 
be on plaintiff-The fact that defendant was in a dominant position must be 
proved by plaintiff at the first instance. 
Evidence-Burden of proof and onus of proof-Distinction between- D 
Explained. 
Words and Phrases: 
Expressions 'burden of proof' and 'onus of proof'--Connotation of in 
the context of Evidence Act. 
Suit-Framing of issues-Practice and Procedure. 
Pursuant to an agreement of sale between respondent and appellant, a 
E 
sale deed was executed on 26.3.1991. Later, the respondent filed a suit for 
declaration that the said sale deed was void as the same was forged and F 
fabricated. The defendant-appellant denied the allegations. On pleadings of 
the parties the trial court framed the following issue: 
"Whether the sale deed dated 26.3.1991 is forged and fabricated as 
prayed for?" 
On an application by the plaintiff, the trial court observed that onus to 
prove an issue was to be discharged in affirmative and it would always be 
·•·· difficult to prove the same in negative, and reframed the issue as under: 
"Whether the alleged sale deed dated 26.3.1991 is a valid and genuine 
659 
G 
H 
660 
SUPREME COURT REPORTS [2006] SUPP. I S.C.R. 
A document?" 
The revision application of the defendant was dismissed by the High 
Court observing that defendant was in a dominant position to prove the 
document affirmatively. Aggrieved, the defendant filed the present appeal. 
B 
Allowing the appeal, the Court 
HELD: 1.1. In view of Section IOI of the Evidence Act, the initial burden 
of proof would be on the plaintiff. The trial court and the High Court proceeded 
on the basis that the defendant was in a dominating position and there had 
been a fiduciary relationship between the parties. The appellant in his written 
C statement denied and disputed the said averments made in the plaint. The fact 
that the defendant was in a dominant position must be proved by the plaintiff 
at the first instance. [662-H; 663-B-C; E[ 
D 
E 
Krishna Mohan Ku/ @ Nani Charan Ku/ & Anr. v. Pratima Maity & 
Ors., AIR (2003) SC 4351, distinguished. 
1.2. With a view to prove forgery or fabrication in a document, 
possession of the original sale deed by the defendant would not change the 
legal position. A party in possession of a document can 11lways be directed to 
produce the same. The plaintiff could file an application calling for the said 
document from the defendant and the defendant could have been directed by 
the Trial Judge to produce the same. [655-D-El 
2. It should be borne in mind that a distinction exists between 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 
F 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. The 
elementary rule in Section IOI is inflexible. In terms of Section 102 the initial 
G onus is always on the plaintiff and if he discharges that onus and makes out 
a case which entitled him to a relief, the onus shifts to the defendant to prove 
those circumstances, if any, which would disentitle the plaintiff to the same. 
[655-F-H; 666-AI 
R. VE. Venkatachala Gounder v. Arulmigu Viswesaraswami & VP. Temple 
H and Anr., JT (2004) 6 SC 442, relied on. 
ANIL RISH! v. GURBAKSH SINGH [S.B. SINHA, J.] 
661 
3. The order reframing the issue is set aside thus reviving the issue A 
originally framed. (666-D) 
CIVIL APPELLATE JURISDICTION: Civil Appeal No, 2413 of2006. 
From the Order dated 14.12.2005 of the High Court of Punjab and 
Haryana at Chandigarh in C.R. No. 1077/2005. 
B 
Suresh Kumari and A.P. Mohanty for the Appellant. 
Shalil Sagar, Pratap Venugopal and E. Venu Kumar for Mis. K.J. John 
& Co., for the Respondent. 
The Judgment of the Court was delivereq by 
S.B. SINHA, J. Leave g

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