1. This appeal arises out of a suit brought for specific performance of an agreement to sell property the case for the plaintiff being that on the 20th of January 1919 the defendant had executed a written agreement undertaking to convey certain immoveable property to him. The story was that on the day aforesaid, the property of the defendant, Tula Ram, was up for sale in execution of a decree and that this agreement was entered into in order to enable Tula Ram to avoid a public sale of his property and to enable him to satisfy the decree.
2. The document upon whish the plaintiff sued was brought into Court. The defendant, Tula Ram, filed a written statement on the 15th July 1919, in which he denied that he had entered into any agreement with the plaintiff, Pirbhu Dayal. In substance his story was that he had come to Some arrangement with his decree-holders and that any agreement relating to the sale of the property was with them and not with the plaintiff. It farther appears from an extract from the order-sheet on the record that Tula Ram was brought into Court on the 19th January 1920, the date fixed for hearing, and was examined as a party. The document upon which the plaintiff sued was shown to him and he admitted that the paper on which the document was written bore both his signature and his thumb impression bat he declared that when he put his signature and thumb-impression on this place of paper, it was blank, and consequently, he denied that he was responsible for the agreement to sell which the plaintiff had produced in Court, On this statement being made, it appears from the order-sheet that the Pleader for the plaintiff informed the Court that inasmuch as the burden of proof lay upon the defendant, he (plaintiff's Pleader) was not willing to open the case and to call evidence. He informed the Court that he bad already filed such documentary evidence as he had to rely on.
3. The Pleader for the defendant called no evidence, and, in this state of things, the learned Judge came to the conclusion that the suit must fail inasmuch as that the plaintiff had failed to prove his case. It has been argued, before, us, that the Court below was wrong in holding, in the circumstances above indicated, that the burden of proof lay on the plaintiff. This argument, however, does not command itself to us. It is obvious, in any case, that the burden of proving the case lay upon the plaintiff, Pirbhu Dayal. We cannot concede in favour of the appellant that any admission which was made by the defendant regarding the putting of a signature or a thumb-mark on the document in question, amounted to such an admission of execution as to thrust the burden of proving the case upon him. Obviously, there was no admission of execution of the document upon Which the plaintiff relied when the defendant stated that he had put his signature and his thumb-mark on a blank piece of paper.
4. We have no doubt at all that in view of the pleadings, it was for the plaintiff to prove the due execution of the document upon which he was suing. We may further observe, and it is apparent from the printed record, that the plaintiff had filed a list of no less than ten witnesses on whose evidence, no doubt, he relied for the purpose of showing that an agreement had been executed in his favour by the defendant.
5. In spite of this we find the Pleader taking his stand upon the legal point and assuming in his own favour that no burden of proof lay upon the plaintiff but that it was for the defendant to open the case. The result is unfortunate for the plaintiff, but we cannot allow the appeal to prevail notwithstanding. There cannot be the slightest doubt that, on the facts which were before the Court, it was for the plaintiff to make out his case and he could only do that by proving due execution of the agreement itself on the part of the defendant. We affirm the judgment of the Court below and dismiss this appeal with costs including in this Court fees on the higher scale, if any.