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Thursday, December 12, 2013

Sec.101,102 of Evidence Act - Sec.100 of C.P.C = Suit for Declaration of title and consequential reliefs = Goa - Portuguese civil code - Suit for declaration & possession & cancellation of document = with out producing any documentary proof in respect of title - no suit be decreed on vague admission -Sec.101,102 - burden of proof & onus of proof - both are distinct - former never changes - later changes from time to time from one shoulder to other's shoulder - first plaintiff has to prove his title - then only other things will be considered = sec.100 C.P.C. - when decree was passed on erroneous law and fact , high court can interfere in second appeal - High court rightly set aside the decree and judgement of lower courts = Sebastiao Luis Fernandes (Dead) Through Lrs. & Ors. … Appellants Vs. K.V.P. Shastri (Dead) Through Lrs. & Ors. … Respondents = Published in / Cited in /Reported in judis.nic.in/supremecourt/filename=41061

Sec.101,102 of Evidence Act - Sec.100 of C.P.C = Suit for Declaration of title and consequential reliefs = Goa - Portuguese civil code - Suit for declaration & possession & cancellation of document = with out producing any documentary proof in respect of title - no suit be decreed on vague admission -Sec.101,102 - burden of proof & onus of proof  - both are distinct - former never changes - later changes from time to time from one shoulder to other's shoulder - first plaintiff has to prove his title - then only other things will be considered = sec.100 C.P.C. - when decree was passed on erroneous law and fact , high court can interfere in second appeal - High court rightly set aside the decree and judgement of lower courts = 

1) The plaintiffs not having  produced  any  document  of
                     title, could the courts below decree the suit? /
(1) In the absence of documentary proof, whether oral evidence  can  be
    relied upon for granting a decree declaring  the rights of a party?
Therefore, the High Court
      has rightly come to the conclusion and held that  the  answer  to  the
      first substantial question of law is to be answered  in  the  negative
      and  held  that  since  plaintiff-appellants  have  not  produced  any
      document of title in relation to the suit schedule property, the grant
      of decree in favour of them is  erroneous  in  law.  

2) The decision is contrary to the pleadings. The  courts
                     below committed breach of procedure  in  holding  that
                     there was admission  of  original  plaintiff,  in  the
                     pleading when there is no such admission. /
(3) Whether improper admission or rejection of evidence can be a ground
    for new trial or reversal of any decision in any case? =

Therefore,  the  High  Court  has  arrived  at  the   right
      conclusion and held that the courts below committed serious  error  in
      holding that there was admission of defendants in the  pleadings  with
      respect to ownership of 1/3rd of the suit  schedule  property  by  the
      plaintiff.

2) Whether  the  High  Court  in  a  Second  Appeal  should  set-aside
    concurrent findings of fact upon re-appreciating evidence?  =
    
Section  100  of  the  Code,
      power to set aside concurrent finding of fact can  be  exercised  only
      when a substantial question of law exists  irrespective  of  the  fact
      that the finding of fact is erroneous. =

Hero Vinoth (minor) v. Seshammal[10], wherein the  principles
      relating to Section 100 of the CPC were summarized in para  24,  which
      is extracted below :

      “24. The principles relating to Section 100 CPC relevant for this case
      may be summarised thus:
          (i) An inference of fact  from  the  recitals  or  contents  of  a
          document is a question of fact. But the legal effect of the  terms
          of a document is a question of law.  Construction  of  a  document
          involving the application of any  principle  of  law,  is  also  a
          question of law. Therefore, when there  is  misconstruction  of  a
          document or wrong application of a principle of law in  construing
          a document, it gives rise to a question of law.
          (ii) The High Court should be satisfied that the case  involves  a
          substantial question of law, and not a mere  question  of  law.  A
          question of law having a material bearing on the decision  of  the
          case (that is, a question, answer to which affects the  rights  of
          parties to the suit) will be a substantial question of law, if  it
          is not covered by any specific provisions of law or settled  legal
          principle  emerging  from  binding  precedents,  and,  involves  a
          debatable legal issue. A substantial question  of  law  will  also
          arise in a contrary situation, where the legal position is  clear,
          either  on  account  of  express  provisions  of  law  or  binding
          precedents, but the court below has  decided  the  matter,  either
          ignoring or acting contrary to such legal principle. In the second
          type of cases, the substantial question of law arises not  because
          the law is still debatable, but because the decision rendered on a
          material question, violates the settled position of law.
          (iii) The general rule is that High Court will not interfere  with
          the concurrent findings of the courts below.  But  it  is  not  an
          absolute rule. Some of the well-recognised  exceptions  are  where
          (i) the courts below have ignored material evidence or acted on no
          evidence; (ii) the courts have drawn wrong inferences from  proved
          facts by applying the law erroneously; or (iii)  the  courts  have
          wrongly cast the burden of proof. When we refer to “decision based
          on no evidence”, it not only refers to  cases  where  there  is  a
          total dearth of evidence, but also refers to any case,  where  the
          evidence,  taken  as  a  whole,  is  not  reasonably  capable   of
          supporting the finding.”


We have to place reliance on the afore-mentioned case to hold that the  High
Court has framed substantial questions of law as  per  Section  100  of  the
CPC, and there is no error in the judgment of the High Court in this  regard
and therefore, there is no need for this Court to interfere with the same.


   burden  of  proof  and  onus  of proof.   =
In the matter of onus of proof and burden of proof  as  per  Sections
      101 and 102 of the Evidence Act, we have to hold that it was upon  the
      plaintiff-appellants to furnish proof  regarding  ownership  of  1/3rd
      share of the suit schedule property  and  discharge  their  burden  of
      proof as per the afore-mentioned sections. 
The relevant  extract  from
      Anil Rishi v. Gurbaksh Singh (supra) is reproduced below:-
       “19. There is another aspect of the matter which should be borne  in
       mind. 
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 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 101 is inflexible. 
In terms of Section  102  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 same.

“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  Addagada  Raghavamma  vs Addagada 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 of onus is a continuous process in
           the evaluation of evidence.  
In  our  opinion,  in  a  suit  for
           possession based on title once the plaintiff has  been  able  to
           create a high degree of probability so as to shift the  onus  on
           the defendant it is for the defendant to discharge his onus  and
           in the  absence  thereof  the  burden  of  proof  lying  on  the
           plaintiff shall be held to have been discharged so as to  amount
           to proof of the plaintiff’s title.”




We therefore do not  find  any  reason  whatsoever  to  interfere  with  the
impugned judgment and decree passed by the High Court on this aspect of  the
case as well.

  26. For the reasons stated above, the appeal is dismissed,

     REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.6183 OF 2001



Sebastiao Luis Fernandes (Dead) Through
Lrs. & Ors.                                 … Appellants

Vs.

K.V.P. Shastri (Dead) Through Lrs.
& Ors.                                            … Respondents



                               J U D G M E N T




V. Gopala Gowda, J.

      This civil appeal is filed by the appellants as they are aggrieved  by
the judgment and decree of the  High  Court  of  Bombay  at  Goa  passed  on
14.9.1998 by the learned single Judge  in  Second  Appeal  No.  30  of  1986
raising various questions of law and grounds in  support  of  the  same.  In
this judgment for the sake  of  convenience  the  rank  of  the  parties  is
described  according  to  their  position  before  the  trial   court.   The
appellants  are  the  legal  representatives  of  the  plaintiff   and   the
respondents are the legal representatives of the defendants.  The  suit  was
instituted by the original plaintiff  in  the  Court  of  Civil  Judge,  Sr.
Division at Quepem (hereinafter referred to as “the trial court”)  in  Civil
Suit No.14091 of 1948.

   2. The relevant brief facts are stated for the  purpose  of  appreciating
      the rival legal contentions with a view to examine and find out as  to
      whether the impugned judgment of the High Court  of  Bombay   warrants
      interference  by  this  Court  in  this  appeal  in  exercise  of  its
      jurisdiction under Article 136 of the Constitution of India.

      The original plaintiff, Inacinha Fernandes filed Civil Suit No.  14091
of 1948 on 1.1.1948 before the trial court for declaration that she  is  the
lawful  owner  in  possession  of  1/3rd  of  the  property   bearing   land
registration  No.16413  and  consequential  relief   for   cancellation   of
registration in favour of the  defendants-respondents  in  respect  of  such
1/3rd share in the suit schedule property and to register the  same  in  the
name of the plaintiff.
Presently the legal representatives of  the  original
plaintiff are before us as appellants. It is  the  case  of  the  plaintiff-
appellants  that
suit  schedule  property  is  bearing  land   registration
No.16413 and the claim of the plaintiff-appellants is that  it  belonged  to
three brothers namely, Francisco Fernandes (who  was  the  father-in-law  of
the original plaintiff), Francisco  Fernandes  junior  and  Pedro  Sebastiao
Fernandes and they owned  and  possessed  the  same  jointly  and  in  equal
shares.
The defendant No. 2-Tereza is the daughter  of  Francisco  Fernandes
junior and 
the original plaintiff-Inacinha Fernandes is  the  wife  of  Luis
Fernandes, the son of Francisco Fernandes, the first brother.  
It  is  their
further case that on the death of Francisco Fernandes, he  was  survived  by
the husband of the original plaintiff.
It is their case that  on  the  death
of said Francisco Fernandes, the 1/3rd share of the suit  schedule  property
devolved upon Luis the late husband of the original  plaintiff  and  it  was
accordingly enjoyed by the plaintiff.
Further  case  of  the  plaintiff   is
that on account of a debt of Rs.198/- to one Naraina Panduronga Porobo,  the
property was attached and thereafter  the  liability  was  paid  by  way  of
subrogation of rights in favour  of  the  father  of  the  first  defendant,
K.V.P. Shastri who bought this property which was sold in public auction  on
26th April, 1935 and thereafter granted aforementioned  property  in  favour
of the husband of Tereza, namely, Tomas Fernandes vide perpetual  lease.
It
is the case of the plaintiff that the right of subrogation in favour of  the
father of the first defendant should have  been  granted  by  the  defendant
No.2-Tereza only in respect of 1/3rd  share  and  not  in  relation  to  the
entire property.


   3. The case of the plaintiff was sought to be contested by the  defendant
      No.1 inter alia contending  that 
the claim of the plaintiff  is  false
      and ownership and possession of  the  suit  schedule  property  stands
      transferred in favour of the defendant No.1 with effect from 26.4.1935
      and he had acquired right by way  of  prescription   as  it  has  been
      enjoyed for 10  years,  pursuant  to  the  registration  of  the  suit
      schedule property in his name.
The defendant No.2 also denied the case
      of  the  plaintiff  and  claimed  to  be  in  possession  pursuant  to
      conveyance thereof by the defendant No.1.

   4. On the basis of the pleadings of the parties issues  were  framed  and
      the matter went for trial and both the parties  adduced  evidence.  On
      appreciation of evidence on record the trial court  decreed  the  suit
      vide its judgment dated 29.4.1978.
The trial court  decreed  the  suit
      holding it to be tenable and directed the  defendants  to  acknowledge
      that the plaintiff along with her children  is  the  lawful  owner  in
      possession of 1/3rd share of the suit schedule property and to release
      that 1/3rd share in favour of the plaintiff, by declaring to  be  null
      and void the inscription done  in  the  Land  Registration  Office  in
      respect to the said property which is described under No. 16413 in  so
      far as it covered the  1/3rd  part  of  the  plaintiff.
Further,  the
      defendants were  directed  to  pay  damages  caused  to  the  original
      plaintiff by depriving her of the income corresponding  to  her  1/3rd
      portion. The trial court held that the alleged prescription  does  not
      operate because the defendant Shastri was never in the  possession  of
      the property, much less in good faith.
It was also observed that it is
      proved from the proceedings by a  fact  otherwise  admitted  that  the
      plaintiff has her residential house in the suit schedule property with
      a common wall with the house of the defendant-Tereza and this  is  one
      more important fact to corroborate the  case  of  the  plaintiff,  for
      being relatives descending from the same common trunk having ancestral
      house.

   5. Being aggrieved  by  the  said  judgment  and  decree  the  defendants
      preferred Civil Appeal No. 237 of 1981 before the  District  Court  at
      Margao and the same was disposed of by judgment  dated  16.12.1985  by
      recording reasons.
The first appellate court held that the evidence on
      record shows that neither the  original  plaintiff  nor  the  original
      defendants were able to produce any documentary  evidence  to  support
      their title to the suit schedule property, besides the claim  made  by
      them that  the  property  was  acquired  from  the  common  ancestors.
     
Further, it observed that the learned trial judge rightly pointed  out
      that the specific claim made by  the  plaintiff  with  regard  to  the
      common ownership to the suit schedule property and the houses was  not
      specifically denied by the defendants being a fact that only defendant
      No.1 namely, Venctexa Govinda Porobo Shastri took a definite stand  in
      this respect.
It was thus held that the trial Judge was  justified  in
      holding that the common ownership of the suit  schedule  property  had
      been admitted by the defendants in their written  statement  and  
that
      they could not prove how the suit schedule property in  view  of  this
      fact this common ownership could subsequently  belong  exclusively  to
      the daughters of one of the co-owners of the  suit  schedule  property
      who were the heirs of one of the sons of the original title holder  of
      the property. 
Further,  the  circumstances  of  Tereza  and  Conceicao
      having   acquired  their  right  through  the  creditor  Shastri   who
      purchased their property in a public auction after its  attachment  by
      the court from the heirs of one of the  co-owners  are  certainly  not
      binding  on  the  respondents  who  were  not  parties  in  the   said
      proceedings being  also  a  fact  that  simply  because  the  original
      plaintiff did not react either against the attachment or the  auction,
      it cannot be said that this circumstance made her lose  her  right  of
      the share acquired by her husband through his father who  was  one  of
      the sons of the original owner of the suit schedule property.
Besides,
      the evidence on record shows  that  the  original  plaintiff  and  her
      family were residing in  the  house  situated  in  the  suit  schedule
      property even at the time of the filing of the suit  and  subsequently
      they shifted their residence after  their  ancestral  house  collapsed
      having built another house in a  different  property  which  had  been
      acquired by the plaintiff. 
It was further held by the first  appellate
      court that the trial Judge has  correctly  assessed  the  evidence  on
      record while adjudicating  the rights of the parties to  the  suit  in
      favour of the plaintiff, and the judgment could not be said as  having
      caused any grievance to the defendants-respondents and must  be  fully
      affirmed.

   6. Being aggrieved by the said judgment Second Appeal No. 30 of 1986  was
      filed by the defendants before the learned single Judge  of  the  High
      Court by urging certain substantial questions of law as required under
      Section 100 of the Civil Procedure Code, 1908 (for short  “the  CPC”).
      The  High  Court  admitted  the  appeal  by  framing   the   following
      substantial questions of law :-
                  1) The plaintiffs not having  produced  any  document  of
                     title, could the courts below decree the suit?


                  2) The decision is contrary to the pleadings. The  courts
                     below committed breach of procedure  in  holding  that
                     there was admission  of  original  plaintiff,  in  the
                     pleading when there is no such admission.

                  3)  The  courts  below  failed  to  consider   that   the
                     defendants had pleaded prescription and  that  Article
                     526(2) was fully attracted.


   7. After hearing the learned counsel for the parties  and the  translated
      pleadings from Portuguese language  to  English  in  the  plaint  with
      regard to the claim of ownership of the plaintiff and the pleadings of
      defendants, the learned single Judge of the High  Court  has  examined
      the rival legal contentions urged with reference  to  the  substantial
      questions of law framed by it at the time of admission of  the  second
      appeal and placed reliance upon the judgment of this Court in the case
      of Hira Lal and Anr. v. Gajjan and Ors.[1]
wherein  this  Court  laid
      down the statement of law regarding the substantial questions  of  law
      in the second appeal under  Section  100  of  the  CPC.  The  relevant
      portion of paragraph 8  from the aforesaid judgment reads thus :-
               “8.…if in dealing with a question of  fact  that  the  lower
               appellate court has placed the onus on wrong party  and  its
               finding of fact is the result substantially  of  this  wrong
               approach that may be regarded as a defect in procedure. When
               the  first  appellate  court  discarded  the   evidence   as
               inadmissible and  the  High  Court  is  satisfied  that  the
               evidence was admissible  that  may  introduce  an  error  or
               defect in procedure. So also in a case where the court below
               ignored the weight  of evidence and allowed the judgment  to
               be influenced by inconsequential  matters,  the  High  Court
               would be justified in reappreciating the evidence and coming
               to its own independent decision.”

With reference to the statement of law  laid  down  by  this  Court  in  the
aforesaid case, the learned single Judge of  the  High  Court  proceeded  to
answer the substantial questions of law Nos. 1 and 2 together  by  recording
its reasons in paragraphs 7, 8 and  9  of  the  impugned  judgment.  In  the
second appeal, the High Court on the basis of  the  statement  of  law  laid
down by this Court in Hira Lal case (supra) examined the correctness of  the
concurrent findings of fact recorded by the first appellate court to  answer
the substantial questions of law referred to supra. The High Court  has  re-
appreciated the evidence in the backdrop of the statement of law  laid  down
by this Court after noticing the fact that  the  courts  below  ignored  the
pleadings of the defendants-respondents and the  weight  of  their  evidence
and allowed its judgments  to  be  influenced  by  inconsequential  matters,
therefore, the High Court was of the  view  that  it  is  justified  in  re-
appreciating the  evidence  and  coming  to  its  independent  decision  and
answered the substantial questions of law Nos. 1 and  2  in  favour  of  the
defendants holding  the  findings  of  the  courts  below  on  the  relevant
contentious issues as perverse. In this regard, at  paragraph  7,  the  High
Court considered the evidence on record and non-appreciation of the same  by
the courts below, particularly, the finding recorded by the first  appellate
court that the plaintiff-appellants have established their title in  respect
of the suit schedule property, that the defendant  Shastri  had  not  denied
the claim of ownership of the plaintiff-appellants and  further  that  there
is no specific denial of the ownership by Tereza,  holding  that  the  lower
courts have erroneously recorded findings on these aspects. The  High  Court
has further proceeded to hold that the  fact  remains  that  Tereza  is  not
claiming right independently herself  but  her  claim  to  the  property  is
through said Shastri. The case of the defendants before the trial  court  is
that the said property was purchased by  Shastri  in  a  court  auction  and
subsequently conveyed to Tereza. Therefore, the case of the defendants   was
accepted by the High Court stating that the pleading of  K.V.P.  Shastri  in
relation to the denial of ownership of the plaintiff is  more  relevant  and
material  rather  than  that  of  Tereza.  The  High  Court   further   made
observation that denial of Tereza without there being  any  such  denial  by
Shastri  would have  been  of  no  consequence  because  consequent  to  the
auction to the property through court,  Tereza  is  claiming  right  to  the
property only through Shastri and not  independently.  Therefore,  the  High
Court has arrived at valid  finding  on  this  aspect  of  the  matter  that
irrespective of the denial of such claim of  Tereza,  had  Shastri  accepted
the claim of the plaintiff then such denial of Tereza  would  have  been  of
no consequence in the facts and circumstances of the case.  The  High  Court
has arrived at a conclusion on the  basis  of  pleadings  that  undisputedly
Shastri has denied the claim of the ownership  of  the  plaintiff-appellants
in respect of the suit schedule property, therefore, the  findings  of  both
the courts below that there is no denial of the plaintiff’s  case  regarding
the ownership right of the suit schedule property is not  factually  correct
and the said finding is held to be totally contrary to the  record  and  the
same is arbitrary and perverse and cannot be sustained. The High  Court  has
also come to the conclusion on the basis of the  pleadings  on  record  that
the claim of the plaintiff-appellants  to  the  suit  schedule  property  is
clearly in dispute and plaintiff-appellants have not proved their  title  to
the suit schedule property and further rightly came to the  conclusion  that
the courts below have not properly analyzed the material evidence on  record
though plaintiff-appellants have failed to produce documentary  evidence  in
so far as the title of their ownership of  the  suit  schedule  property  is
concerned and further  the  finding  recorded  by  the  High  Court  in  its
judgment at para  8  namely,  to  the  effect  that  the  challenge  of  the
plaintiff with regard to the acquisition  of his right to the suit  schedule
property by Shastri and Tereza is  essentially   and  solely  based  on  the
basis of the claim of ownership  of  the  plaintiff  to  the  suit  schedule
property.


   8. The learned counsel for the plaintiff-appellants has  submitted  their
      legal and factual contentions before us. It  was  contended  that  the
      High Court failed to appreciate that under Section  100  of  the  CPC,
      only a substantial question of law could be framed for the purposes of
      examining the contentions of parties and that a  substantial  question
      of law is distinctly different from a substantial question of fact.

   9. Further the learned counsel contended that the High  Court  failed  to
      advert to the fact that possession of the ancestral property continued
      with the original plaintiff. It was  contended  that  the  High  Court
      should have considered the fact that the two fact-finding  courts  had
      come to the conclusion on fact  that  the  deceased-plaintiff  was  in
      possession of the suit schedule property as  a  co-owner  thereof,  as
      1/3rd of the suit schedule  property  belonged  to  her  father-in-law
      Francisco Fernandes. It is submitted that the learned single Judge  of
      the High Court has misread the evidence and pleadings in  arriving  at
      the  impugned  findings.  The  learned  counsel  for  the   plaintiff-
      appellants has  relied  on  the  judgments  of  this  Court  in  Deity
      Pattabhiramaswamy v. S. Hanymayya & Ors.[2], Dollar Company, Madras v.
      Collector of Madras[3] and  Ramanuja  Naidu  v.  V.  Kanniah  Naidu  &
      Anr.[4] to support the contention that in the facts and  circumstances
      of the present appeal the High Court has tried  to  re-appreciate  the
      evidence in second appeal under Section 100 of the CPC which cannot be
      done in the second appeal, in the backdrop of the  concurrent  finding
      of facts by  the  lower  courts  on  appreciation   of  pleadings  and
      evidence on record.

  10.  It is further contended by the learned counsel that  the  High  Court
      failed to appreciate that defendant-Tereza  was  not  claiming  rights
      independently and her claim to the suit schedule property  is  through
      the said Shastri, when  on  the  contrary,  the  purported  right  and
      interest of Shastri was in view of a purported public auction  of  the
      property held to recover the debts  of  the  said  Tereza  and  by  an
      illegal means the said Tereza obtained a perpetual lease of  the  suit
      schedule property in her favour from the said Shastri.

  11.  It was further contended that there was no question  of  selling  the
      entire property in the public auction in  pursuance  to  court  decree
      when the rights of the said Tereza was only to the extent of 1/3rd  of
      the entire property and the purported attachment of the same  is  null
      and void and without any legal effect.

  12.  The learned counsel has also drawn our attention  towards  the  three
      points, which arise for consideration by this Court:-
    (1) In the absence of documentary proof, whether oral evidence  can  be
    relied upon for granting a decree declaring  the rights of a party?
    (2) Whether  the  High  Court  in  a  Second  Appeal  should  set-aside
    concurrent findings of fact upon re-appreciating evidence?
    (3) Whether improper admission or rejection of evidence can be a ground
    for new trial or reversal of any decision in any case?

  13. He has further submitted that it is manifest that a court is empowered
      to grant a decree of declaration  of title on the basis of  only  oral
      evidence and further submitted that this Court has settled the  scope,
      limitation of jurisdiction and power of a second appellate court under
      Section 100 of the CPC specifically after the amendment in 1976.  This
      Court has held that in proceedings under  Section  100  of  the  Code,
      power to set aside concurrent finding of fact can  be  exercised  only
      when a substantial question of law exists  irrespective  of  the  fact
      that the finding of fact is erroneous.

  14.  The learned counsel has also stated that  the  Indian  Evidence  Act,
      1872 creates a specific bar against conducting a new trial  merely  on
      the ground of improper admission or rejection  of  evidence  and  that
      Section 167 of the Indian Evidence Act is specific in this behalf.

  15. On the contrary, the learned counsel  for  the  defendants-respondents
      contended that the present appeal is misconceived and deserves  to  be
      dismissed as the High Court has  rightly  exercised  its  jurisdiction
      under Section 100 of the CPC. It is evident from the extracts  of  the
      findings of the courts below that the courts below have  proceeded  on
      the basis that there is an admission of the  claim  of  the  plaintiff
      regarding 1/3rd ownership of the suit schedule property  as  the  same
      has not been specifically denied by the respondents. The said  finding
      is not only contrary to the pleadings on record but is  also  contrary
      to the well-established principles of law viz. (a) that the burden  of
      proof is upon the person who  approaches  the  court,  and    (b)  any
      averment to be taken as an admission must be clear and unambiguous. It
      is submitted that it is an admitted fact that the plaintiff-appellants
      could not produce any document before the trial court to  prove  their
      title regarding the suit schedule property.

  16.  It was further contended by the learned counsel that Sections 101 and
      102 of Evidence Act clearly states that burden of proof  lies  on  the
      person who desires the court to give a judgment on a  legal  right  or
      liability and who would otherwise fail if no  evidence  was  given  on
      either side. In the present case the plaintiffs-appellants would  have
      to satisfy that burden under the above said sections of  the  Evidence
      Act, failing which the suit would be liable to be dismissed.  In  this
      regard, defendants placed reliance on the judgments of this  Court  in
      Corporation of City of Bangalore v. Zulekha  Bi  &  Ors.[5],  Gurunath
      Manohar Pavaskar & Ors. v. Nagesh Siddappa  Navalgund  &  Ors.[6]  and
      Anil Rishi v. Gurbaksh Singh[7], wherein it has been specifically held
       by this Court that in a suit for  disputed  property  the  burden  to
      prove title to the land squarely falls on the plaintiff.

  17.  The learned counsel further contended that the trial  court  and  the
      first appellate court have erroneously discharged the burden of  proof
      as well as the onus of proof on the plaintiff-appellants to prove  (a)
      the title to the property or for that matter (b)  that  the  same  was
      ancestral, by referring to the written statements of Tereza  Fernandez
      and recording an erroneous finding that the rights  of  the  plaintiff
      was not disputed by the defendants and, therefore, the  same  amounted
      to an admission. In this regard the pleadings of  the  parties  become
      relevant which have been reproduced at page 8 of the impugned judgment
      and a perusal of which  clearly  show  that  there  was  a  clear  and
      specific denial of the right of the plaintiff over the  said  property
      as well as the right of the ancestors of the said  plaintiff,  by  the
      auction purchaser/defendant No. 1. The  relevant  pleadings  regarding
      the claim of ownership as found on page 8 of the impugned judgment are
      extracted below :-
      “In the village of Loliem there exists a property known as ‘Bodquealem
      Tican’ now described in the Land Registry of  this  Judicial  Division
      under No.sixteen thousand four hundred  thirteen  (16,413)  and  which
      belonged jointly to Francisco  Fernandes,  the  father-in-law  of  the
      plaintiff and his brothers  Francisco   Fernandes  junior,  and  Pedro
      Sebastiao Fernandes, who all three had been always holding  possession
      the property jointly and in equal shares.


      In answer to the said pleadings the defendant No.1 the predecessor  of
      the appellant no.1 stated thus:-


           ‘The plaintiff her husband Luis or the father of this  Francisco
           Fernandes  Senior  never  held  in  possession   the   property-
           Bodquealem Tican-situate at Loliem and  described  in  the  Land
           Registry under No.16413,  the  boundaries  of  which  and  other
           details set out in the doc. of fls. 5 are deemed  to  have  been
           reproduced herein for all purposes of law.
           The property at issue was always and  originally  in  possession
           and ownership of the judgment debtors Tomas Fernandes  his  wife
           Tereza  Fernandes,  Santana  deSouza  and  his  wife   Conceicao
           Fernandes of Loliem.’


      The Other defendants, namely the other appellants stated thus :-


           ‘For neither she nor her husband held in possession any property
           and  much  less  Bodquealem  Tican-No.16413   the   details   of
           identification of which are borne out from Doc. of  fls.  5  and
           are deemed to have been reproduced herein.”



  18.  It is further submitted that it is settled law that for a  decree  to
      be passed on admission, the admission should be clear and unambiguous.
      In this regard reliance is placed on the judgment  of  this  Court  in
      Jeevan Diesels & Electricals Ltd. v.  Jasbir  Singh  Chadha,  (HUF)  &
      Anr.[8] Further, he has urged that so far as the written statement  is
      concerned, this Court in the case of Rachakonda Venkat Rao &  Ors.  v.
      R. Satya Bai & Anr.[9] held that :
       “20. The learned counsel for  the  plaintiff  also  tried  to  build
       argument based on the fact that the 1978 decree has been referred to
       as a  preliminary  decree  by  Defendant  1  in  his  reply  to  the
       plaintiff’s  application  under  Order  26  Rules  13  and  14  CPC.
       According to him this shows that the defendant himself  treated  the
       said decree as a preliminary decree. This argument has no merit.  We
       have to see the tenor of the entire reply and a word here  or  there
       cannot be taken out of context to build an argument.  The  reply  by
       Defendant 1 seen as a whole  makes  it  abundantly  clear  that  the
       defendant was opposing the prayer in the application  including  the
       prayer for taking proceedings for passing a final decree.”



  19.  It was further submitted by the learned counsel  for  the  defendant-
      respondents that in any event of the matter it  is  an  admitted  fact
      that there was clear and specific denial  by  the  defendant  No.1/the
      auction purchaser and owner of the suit schedule property and that the
      said finding is concurrent vide trial court  judgment  (para  12)  and
      first appellate court judgment (para  8).  The  relevant  portions  of
      which paragraphs are extracted below:-
      Trial Court judgment dated 29.4.1978
       “12…On the other hand a careful perusal of the written statement  of
       the defendant reveals that even though they might have  denied  that
       1/3rd of that property had belonged to the couple of the  plaintiff,
       only the defendant  no.1  clearly  stated  that  the  same  belonged
       entirely to the defendants Tereza and Conceica…”


       First Appellate Court Judgment dated 16.12.1985


      “8.However it was rightly pointed out by the learned Trial Judge,  the
      specific  claim  taken  by  the  respondents  with  regard  to  common
      ownership of the suit property and the  houses  was  not  specifically
      denied by the Appellants being a fact that only the original defendant
      no.1 Xastri took a definite stand in this respect…”




It was further submitted that the owner of the property having  specifically
denied title of the plaintiffs as well as the fact that  the  said  property
was ancestral; it was incumbent upon the plaintiff to  prove  the  title  as
well as the fact that the said property  was  ancestral.  It  was  contended
that even assuming for the sake of argument that the  other  defendant  viz.
Tereza who was in possession of the property as a lessee does not  deny  the
title, the same would make no  difference  as  the  owner  of  the  property
defendant No.1 had specifically denied the title.

  20.  Learned counsel further argued that  the  High  Court  has  correctly
      exercised its jurisdiction under Section 100 of the CPC. It is further
      submitted that the  findings  rendered  by  the  courts  below  on  no
      evidence or drawn on wrong inference from the  evidence,  as  well  as
      casting of  onus  on  the  wrong  party,  are  admittedly  substantial
      questions of law.

  21. The submissions of both the  learned  counsel  for  the  parties  with
      reference to the case law referred to supra upon  which  reliance  was
      placed, are carefully examined by us with a view to find  out
whether
      the substantial questions of law Nos. 1 and 2 framed and  answered  in
      favour  of  the  defendants-respondents  and  against  the  plaintiff-
      appellants are correct or not.
After having heard learned counsel for
      the plaintiff-appellants as well as defendants-respondents, we have to
      hold that the High Court has rightly held to the effect  that  it  was
      primarily and essentially necessary for  the  plaintiff-appellants  to
      establish their claim of ownership before they could invite the  court
      to address itself to the issue of their challenge to the title of  the
      defendants-respondents to the suit schedule property.  The  plaintiff-
      appellants having failed to do so, their entire claim was liable to be
      rejected.
The High Court further recorded the finding, that the factum
      of registration of the suit schedule property under No.16413 in favour
      of the defendants-respondents is not in dispute,  yet  the  plaintiff-
      appellants have not produced on the record any document of inscription
      of the suit schedule property in their name.
Therefore, the High Court
      has rightly come to the conclusion and held that  the  answer  to  the
      first substantial question of law is to be answered  in  the  negative
      and  held  that  since  plaintiff-appellants  have  not  produced  any
      document of title in relation to the suit schedule property, the grant
      of decree in favour of them is  erroneous  in  law.  
Further,  on  the
      second substantial  question  of  law,  the  High  Court  has  rightly
      answered in favour of the defendants in the affirmative for the reason
      that the courts below, without considering  the  denial  made  by  the
      defendant no.1  with  regard  to  the  ownership  claim  made  by  the
      plaintiff-appellants in respect of the suit  schedule  property,  have
      come to the erroneous conclusion that there is no pleading of fact  by
      the defendants-respondents and lack  of  evidence  in  favour  of  the
      plaintiff-appellants  to  prove  their  title  to  the  suit  schedule
      property.  Therefore,  the  High  Court  has  arrived  at  the   right
      conclusion and held that the courts below committed serious  error  in
      holding that there was admission of defendants in the  pleadings  with
      respect to ownership of 1/3rd of the suit  schedule  property  by  the
      plaintiff.

  22. After careful scrutiny of the finding of fact and reasons recorded  by
      the courts below with reference to the substantial  questions  of  law
      framed by the High Court at the time of admission of the second appeal
      filed by the defendants, we are satisfied that the ratio laid down  by
      this Court in Hira Lal’s case (supra) and other decisions referred  to
      supra upon which defendants’ counsel placed reliance in  justification
      of the findings and reasons recorded by the High Court in the impugned
      judgment are applicable to the fact situation  of  this  case  as  the
      courts below have erred in assuming certain facts  which  are  not  in
      existence to come to the erroneous conclusion in the absence of  title
      document in justification of the claim of the plaintiff in respect  of
      the suit schedule property and ignored the pleadings of the defendants
      though they have specifically denied the ownership  right  claimed  by
      the plaintiff in respect of the suit schedule property  and  on  wrong
      assumption of the facts which are pleaded  on the contentious  issues,
      they have been answered in favour of  the  plaintiff,  therefore,  the
      High Court has rightly exercised its appellate jurisdiction by framing
      the correct substantial questions of law with reference to  the  legal
      position and applied the same to the fact situation of case on hand.

  23. In our considered view, the substantial questions of law framed by the
      High Court at the time of the admission of the second appeal is  based
      on law laid down by this Court in the above referred case of Hira  Lal
      which view is supported by other cases referred to  supra.  
Therefore,
      answer to the said substantial questions of law by the High  Court  by
      recording cogent and valid reasons to annul  the  concurrent  findings
      that the non-appreciation of the pleadings and evidence on  record  by
      the  courts  below  rendered  their   finding   on   the   contentious
      issues/points as perverse and arbitrary, and therefore the  same  have
      been rightly set aside by answering the substantial questions  of  law
      in favour of the defendants.

  24. The learned counsel for the defendants relied on the judgment of  this
      Court in Hero Vinoth (minor) v. Seshammal[10], wherein the  principles
      relating to Section 100 of the CPC were summarized in para  24,  which
      is extracted below :

      “24. The principles relating to Section 100 CPC relevant for this case
      may be summarised thus:
          (i) An inference of fact  from  the  recitals  or  contents  of  a
          document is a question of fact. But the legal effect of the  terms
          of a document is a question of law.  Construction  of  a  document
          involving the application of any  principle  of  law,  is  also  a
          question of law. Therefore, when there  is  misconstruction  of  a
          document or wrong application of a principle of law in  construing
          a document, it gives rise to a question of law.
          (ii) The High Court should be satisfied that the case  involves  a
          substantial question of law, and not a mere  question  of  law.  A
          question of law having a material bearing on the decision  of  the
          case (that is, a question, answer to which affects the  rights  of
          parties to the suit) will be a substantial question of law, if  it
          is not covered by any specific provisions of law or settled  legal
          principle  emerging  from  binding  precedents,  and,  involves  a
          debatable legal issue. A substantial question  of  law  will  also
          arise in a contrary situation, where the legal position is  clear,
          either  on  account  of  express  provisions  of  law  or  binding
          precedents, but the court below has  decided  the  matter,  either
          ignoring or acting contrary to such legal principle. In the second
          type of cases, the substantial question of law arises not  because
          the law is still debatable, but because the decision rendered on a
          material question, violates the settled position of law.
          (iii) The general rule is that High Court will not interfere  with
          the concurrent findings of the courts below.  But  it  is  not  an
          absolute rule. Some of the well-recognised  exceptions  are  where
          (i) the courts below have ignored material evidence or acted on no
          evidence; (ii) the courts have drawn wrong inferences from  proved
          facts by applying the law erroneously; or (iii)  the  courts  have
          wrongly cast the burden of proof. When we refer to “decision based
          on no evidence”, it not only refers to  cases  where  there  is  a
          total dearth of evidence, but also refers to any case,  where  the
          evidence,  taken  as  a  whole,  is  not  reasonably  capable   of
          supporting the finding.”


We have to place reliance on the afore-mentioned case to hold that the  High
Court has framed substantial questions of law as  per  Section  100  of  the
CPC, and there is no error in the judgment of the High Court in this  regard
and therefore, there is no need for this Court to interfere with the same.

  25.  In the matter of onus of proof and burden of proof  as  per  Sections
      101 and 102 of the Evidence Act, we have to hold that it was upon  the
      plaintiff-appellants to furnish proof  regarding  ownership  of  1/3rd
      share of the suit schedule property  and  discharge  their  burden  of
      proof as per the afore-mentioned sections. 
The relevant  extract  from
      Anil Rishi v. Gurbaksh Singh (supra) is reproduced below:-
       “19. There is another aspect of the matter which should be borne  in
       mind. 
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 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 101 is inflexible. 
In terms of Section  102  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
       disentitle the plaintiff to the same.

       20. In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P.
       Temple the law is stated in the following terms: (SCC p.  768,  para
       29)


           “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  Addagada  Raghavamma  vs Addagada 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 of onus is a continuous process in
           the evaluation of evidence.  
In  our  opinion,  in  a  suit  for possession based on title 
once the plaintiff has  been  able  to
           create a high degree of probability so as to shift the  onus  on
           the defendant 
it is for the defendant to discharge his onus  and
           
in the  absence  thereof  the  burden  of  proof  lying  on  the
           plaintiff shall be held to have been discharged so as to  amount
           to proof of the plaintiff’s title.”




We therefore do not  find  any  reason  whatsoever  to  interfere  with  the
impugned judgment and decree passed by the High Court on this aspect of  the
case as well.

  26. For the reasons stated above, the appeal is dismissed, there  will  be
      no order as to costs. Orders passed by this  Court  on  27.8.1999  and
      3.9.2001 stand vacated.


                                       …………………………………………J.
                                  [G.S. SINGHVI]




                                          …………………………………………J.
                                               [V. GOPALA GOWDA]


                                          …………………………………………J.
                                               [C. NAGAPPAN]
New Delhi,
December 10, 2013.
-----------------------
[1]    (1990) 3 SCC 285
[2]    AIR 1959 SC 57
[3]    (1975) 2 SCC 730
[4]    (1996) 3 SCC 392
[5]    (2008) 11 SCC 306
[6]    (2007) 13 SCC 565
[7]    (2006) 5 SCC 558
[8]    (2010) 6 SCC 601
[9]    (2003 (7) SCC 452
[10]   (2006) 5 SCC 545

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38


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