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CASE NO.:
Appeal (civil) 10585 of 1996
PETITIONER:
R.V.E. Venkatachala Gounder
RESPONDENT:
Arulmigu Viswesaraswami & V.P. Temple & AR
DATE OF JUDGMENT: 08/10/2003
BENCH:
R.C. Lahoti & [Ashok Bhan.
JUDGMENT:
J U D G M E N T
BHAN, J.
Present appeal has been filed against the judgment and decree in
Second Appeal No. 316 of 1983 dated 12.4.1996 by the High Court of
Judicature at Madras. By the impugned order the High Court has set aside
the judgment and decree of the courts below as a result of which the suit
filed by the plaintiff-appellant (hereinafter referred to as ’the appellant’) has
been ordered to be dismissed.
A brief reference to the pleadings of the parties may be made to
appreciate the points raised in this appeal.
Appellant claimed himself to be the owner of the property bearing No.
D.No. 40 comprised in T.S.No. 201, Block No. 4, Ward No. 5 in the
Municipal City of Tirupur. That M.R. Arunachala Mudaliar, defendant No.
2 (hereinafter referred to as the ’tenant’) was inducted as a tenant in the year
1952 by his father at a rent of Rs. 300/- which was enhanced to Rs. 400/- in
the year 1965. Arulmigu Visweswaraswamy & Veeraragava Perumal
Temples, defendant No.1 (hereinafter referred to as the ’temple’) also claim
ownership to the property. Appellant claimed himself to be a hereditary
trustee of the temple. Originally, from 1946-47 till 1959, the property stood
recorded in the municipal register in the name of three persons, namely,
K.N. Palanisami Gounder, R.V. Easwaramurthi Gounder and A.
Narayaanaswami Gounder. Easwaramurthi Gounder was the father of the
appellant. After the death of Easwaramurthi Gounder, father of the
appellant, the name of the appellant came to be registered in the Municipal
record alongwith the other two persons. In an oral family partition the
property came to the share of the appellant and thereafter the names of K.N.
Palanisami Gounder and A. Narayaanaswami Gounder were removed from
the municipal register and the appellant alone came to be recorded as the
sole owner of the suit property in the municipal record. That temple taking
advantage of the litigation pending between it and the appellant in respect of
the trusteeship of the temple, laid claim to the suit property. Tenant paid
rent till 1969 to the appellant and thereafter attorned as a tenant to temple
and started paying rent to it. Appellant filed the suit for declaration of title,
arrears of rent for three years immediately preceding the filing of the suit
and possession of the suit premises.
The temple-defendant No.1, in its written statement, admitted that the
father of the appellant and after his death the appellant has been a trustee of
the temple. In 1968 new set of trustees were appointed by the Charity
Commissioner and the Executive Officer took charge of the temple. The
temple further alleged that the suit property belonged to the temple and the
appellant wrongly claimed himself to be the absolute owner of the property.
The assessment stood in the name of the appellant as Dharmakartha and not http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9
in his individual capacity. From 1969 onwards, tenant began to pay rent to
temple and the rate of rent was enhanced from Rs. 42.50 to Rs. 129/- per
month. On 19th July, 1975 the tenant executed a lease deed in favour of the
temple. That appellant was not entitled to the suit property and was
estopped from denying the title of temple. The tenant-defendant No.2, in his
written statement, took the stand that he became the tenant of the suit
property under the temple. He admitted that he had been paying rent to the
appellant but from the year 1969 onward he started paying rent to the
temple. That the claim of the appellant for arrears of rent was not tenable
and the suit for declaration and for arrears of rent was not maintainable.
On the pleadings of the parties the Trial Court framed three issues,
viz., (i) relating to the title of the suit property; (ii) entitlement of the
appellant to receive rent, and (iii) entitlement of the appellant to get
possession.
By way of oral evidence appellant stepped in the witness box as PW
1. On behalf of the temple, Rajapandian, an employee of the temple,
stepped in the witness box as DW1 and the tenant appeared as his own
witness as DW2. By way of documentary evidence appellant produced
Exhibit A1 to Exhibit A34 consisting of books of accounts; copies of the
municipal registers; receipts of payment of property tax paid in the
municipal committee; documents showing collection of rent; Exhibit A-30
dated 14.10.1969 is the order of the Assistant Commissioner, H.R. and C.E.
Administration Department, Coimbatore in which it has been held that the
suit property does not belong to the temple. Exhibit A-34 dated 6.7.1970 is
a rent agreement executed between the appellant and tenant in respect of the
suit property. Documents A-30 and A-34 are the photostat copies of the
original; they were admitted in evidence and marked as exhibits without any
objection from other side. Temple produced Exhibits B1 to B46 pertaining
to receipt of rent from the tenant and payment of property tax to the
Municipal Committee after the year 1969.
Trial Court relying upon the oral as well as documentary evidence
held that the appellant was the owner of the property and that respondent no.
2 was the tenant of the appellant. Appellant was held to be the owner and
entitled to recover the possession as well as the arrears of rent for three years
immediately preceding the filing of the suit. Temple filed an appeal before
the District Judge, Coimbatore which was dismissed. Aggrieved temple
filed the second appeal in the High Court. High Court reversed the
judgment and decree of the courts below and held that no reliance could be
placed upon the documentary evidence. The books of accounts produced by
the appellant were not kept in regular course of business and therefore no
reliance could be placed on them. Entry made of property in the municipal
records in the name of a person was not evidence of the title of that person to
the property. That the courts below erred in admitting Exhibit A-30 and A-
34 in evidence as these were photostat copies. Documents being photostat
copies could not be admitted in evidence without producing the originals.
That Exhibit A-34 was not even readable.
Learned Counsel for the parties have been heard at length.
While entertaining the second appeal the High Court framed the
following three questions as substantial questions of law as arising for its
consideration:
"1. Whether a person who has been in possession
of the temple as an hereditary trustee can claim
title to one of the items of the property belonging
to the temple as his own?
2. Whether the certificate issued by the Assistant
Commissioner, Hindu Religious and Charitable
Endowments is conclusive as the question of title http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9
to the immovable properties belonging to the
temple?
3. Whether the right of a temple can be negatived
on the mere strength of the assessment register
standing in the name of the plaintiff/Respondent or
any other person?"
[Emphasis supplied]
All the three questions framed proceed on the assumption as if the
property belongs to the temple whereas the findings of the courts below
were to the contrary. Second appeal in the High Court can be entertained
only on substantial questions of law and not otherwise. The point in issue
was as to whom the property belongs. Instead of proceeding to decide the
issues arising in the suit the High Court assumed second appellate
jurisdiction by erroneously assuming the fact that property belongs to the
temple while framing the substantial questions of law. High Court seems to
have unwitting fallen into a serious error in doing so. As to whether the
appellant or the temple had the title to the property in suit was the question
to be determined in the case and the High Court erred in assuming and
proceeding on an assumption that the property belonged to the temple. The
questions framed by the High Court did not arise as substantial questions of
law based on the findings recorded by the courts below â\200\223 concurrently in this
case. In our opinion, the High Courts’ judgment deserves to be set aside on
this short ground and the case remitted back to the High Court for decision
afresh and in accordance with the law, after re-framing only such substantial
questions of law, if any, as do arise in the appeal. But since the suit was
filed in the year 1978 and the parties have been in litigation for the last 25
years, we are refraining from remitting the case back to the High Court for
re-decision on merits.
Onus to prove title of the property undoubtedly is on the person
asserting title to the property. Appellant produced Ledger Books A9, A11,
A13, A15, A17, A19, A21, A23, A25 & A27 for the years 1952, 1953, 1954,
1955, 1957, 1958, 1959, 1960, 1962 & 1964 respectively maintained by the
father of the appellant up to 1959 and thereafter by him. Exhibits A10, A12,
A14, A16, A18, A20, A22, A24, A26 & A28 are the entries of receipt of rent
from tenant made at pages 155, 81, 57, 92, 115, 137, 180, 16, 171 and 139 of
Ledger Books marked A9, A11, A13, A15, A17, A19, A21, A23, A25 &
A27 respectively. In his statement in court, appellant stated that the ledgers
were maintained properly and were submitted to the income tax authorities.
The Ledger Books bear the seal of the department of income tax. That the
books were maintained by his father till 1959 and after his death the
appellant has maintained the Ledgers. Courts below accepted that the books
were maintained in regular course of business but the High Court ruled out
the ledger accounts from consideration on the ground that day books
supporting the ledger entries were not produced. That the person who made
the entries in the ledger books was not produced which caused a doubt as to
whether the books were kept in due course or not. We do not agree with the
finding recorded by the High Court. On a perusal of the statement of the
appellant and the books of accounts it becomes abundantly clear that the
accounts were duly maintained by the father of the appellant till 1959 and
thereafter by the appellant for every year separately and were submitted to
the department of income tax with annual returns. The books bear the seal of
the income tax department. These facts deposed to by the appellant under
oath were not even challenged in cross-examination. No question was
asked from the appellant to the effect that the books were not maintained by
him or by his father properly. No questions were asked from him in crossexamination about the authenticity of the books or the entries made therein.
In the ledger, for each year, there is an entry regarding receipt of rent. In our
view, the books were maintained properly and regularly and there is no
reason to doubt their veracity. http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9
Section 34 of the Evidence Act declares relevant the entries in books
of account regularly kept in the course of business whenever they refer to a
matter into which the court has to enquire. When such entries are shown to
have been made in the hands of a maker who is dead, the applicability of
clause (2) of Section 32 of the Evidence Act is attracted according to which
the statement made by a dead person in the ordinary course of business and
in particular when it consists of any entry or memorandum made by him in
books kept in the ordinary course of business etc. is by itself relevant. The
maker of the entry is not obviously available to depose incorporation of the
entry. In a given case, depending on the facts and circumstances brought on
record, the Court of facts may still refuse to act on the entry in the absence
of some corroboration. In the present case the courts of fact, subordinate to
High Court, have not felt the need of any further corroboration before acting
upon the entries in the ledger books made by the deceased father of the
appellant. So far as the entries made by the appellant are concerned, he has
deposed to making of the entries and corroborated the same by his own
statement. The appellant has been believed by the trial Court and the first
appellate Court and his statement has been found to be enough corroboration
of the entries made by him. Here again no such question of law arose as
would enable the High Court to reverse that finding. The entries amply
prove that for a length of time, upto the year 1959 the appellant’s deceased
father, and then the appellant, was collecting the rent of the suit property
claiming to be the landlord from the defendant No.2 inducted as tenant by
them. They were in possession of the property through their tenant, the
defendant No.2.
We are definitely of the opinion that the High Court has erred in
ruling out the books from consideration on the ground that the same were
not duly maintained or were not proved in the absence of the maker having
stepped in the witness box.
A2 is the extract of Property Tax Demand Register. A3 is the receipt
of payment of property tax by the appellant to the Municipal Committee.
The name of the appellant is entered in ownership column of Municipal
record. Earlier the entries were in the name of his father, K.N.Palanisami
Gounder and A.Narayaanaswami Gounder. A31 is the letter/notice issued
by the Commissioner, Tirupur Municipality to the appellant in the
complaint filed by one Subramaniam Tirupur under The Tamil Nadu Hindu
Religious and Charitable Endowments Act, 1959 (hereinafter referred to as
’the Act’). A32 is the reply filed by the appellant to the said notice. A33 is
the postal acknowledgement signed by the Commissioner of the receipt of
the reply sent by the appellant. A30 is the photo copy of the order passed by
Assistant Commissioner H.R. and C.E.(Admn.) Department, Coimbatore in
exercise of its jurisdiction under Section 63 of the Act in which it has been
held that temple is not the owner of the property in dispute. A34 is the photo
copy of the rent agreement executed between the appellant and the tenantrespondent No.2. The said rent note has also been attested as witness by the
Executive Officer of the Municipal Committee. Tenant while appearing as
DW2 admitted having signed rent note, Exhibit A34 in favour of the
appellant.
The High Court has, by entering into the question of admissibility in
evidence of the abovesaid two very material pieces of documentary evidence
which were admitted in evidence without any objection when they were
tendered in evidence and taken into consideration by the two courts below
while evaluating evidence and recording findings of facts, excluded the
documents from consideration. Was it permissible for the High Court to do
so?
One document A/30 is the photocopy of a certified copy of the
decision given by Charity Commissioner. This document was tendered in
evidence and marked as an exhibit without any objection by the defendants
when this was done. The plaintiff has in his statement deposed and made it
clear that the certified copy, though available, was placed on the record of
another legal proceedings and, therefore, in the present proceedings he was http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9
tendering the photocopy. There is no challenge to this part of the statement
of the plaintiff. If only the tendering of the photocopy would have been
objected to by the defendant, the plaintiff would have then and there sought
for the leave of the Court either for tendering in evidence a certified copy
freshly obtained or else would have summoned the record of the other legal
proceedings with the certified copy available on record for the perusal of the
Court. It is not disputed that the order of Charity Commissioner is a public
document admissible in evidence without formal proof and certified copy of
the document is admissible in evidence for the purpose of proving the
existence and contents of the original. An order of Charity Commissioner is
not per se the evidence of title inasmuch as the Charity Commissioner is not
under the law competent to adjudicate upon questions of title relating to
immovable property which determination lies within the domain of a Civil
Court. However, still the order has relevance as evidence to show that the
property forming subject matter of the order of the Charity Commissioner
was claimed by the temple to be its property but the temple failed in proving
its claim. If only the claimant temple would have succeeded, the item of the
property would have been directed by the Charity Commissioner to be
entered into records as property of the charity, i.e. the temple, which finding
and the entry so made, unless dislodged, would have achieved a finality. On
the contrary, the appellant herein, who claimed the property to be his and not
belonging to the charity, succeeded in the claim asserted by him.
The other document is the rent note executed by defendant No.2 in
favour of plaintiff. Here also photocopy of the rent note was produced. The
defendant No.2 when in witness box was confronted with this document and
he admitted to have executed this document in favour of the plaintiff and
also admitted the existence of his signature on the document. It is nobody’s
case that the original rent note was not admissible in evidence. However,
secondary evidence was allowed to be adduced without any objection and
even in the absence of a foundation for admitting secondary evidence having
been laid by the plaintiff.
The abovesaid facts have been stated by us in somewhat such details
as would have been otherwise unnecessary, only for the purpose of
demonstrating that the objection raised by the defendant-appellant before the
High Court related not to the admissibility of the documentary evidence but
to the mode and method of proof thereof.
Order 13 Rule 4 of the CPC provides for every document admitted in
evidence in the suit being endorsed by or on behalf of the Court, which
endorsement signed or initialed by the Judge amounts to admission of the
document in evidence. An objection to the admissibility of the document
should be raised before such endorsement is made and the Court is obliged
to form its opinion on the question of admissibility and express the same on
which opinion would depend the document being endorsed as admitted or
not admitted in evidence. In the latter case, the document may be returned
by the Court to the person from whose custody it was produced.
The learned counsel for the defendant-respondent has relied on The
Roman Catholic Mission Vs. The State of Madras & Anr. AIR 1966 SC
1457 in support of his submission that a document not admissible in
evidence, though brought on record, has to be excluded from consideration.
We do not have any dispute with the proposition of law so laid down in the
abovesaid case. However, the present one is a case which calls for the
correct position of law being made precise. Ordinarily an objection to the
admissibility of evidence should be taken when it is tendered and not
subsequently. The objections as to admissibility of documents in evidence
may be classified into two classes:- (i) an objection that the document which
is sought to be proved is itself inadmissible in evidence; and (ii) where the
objection does not dispute the admissibility of the document in evidence but
is directed towards the mode of proof alleging the same to be irregular or
insufficient. In the first case, merely because a document has been marked
as ’an exhibit’, an objection as to its admissibility is not excluded and is
available to be raised even at a later stage or even in appeal or revision. In http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9
the latter case, the objection should be taken before the evidence is tendered
and once the document has been admitted in evidence and marked as an
exhibit, the objection that it should not have been admitted in evidence or
that the mode adopted for proving the document is irregular cannot be
allowed to be raised at any stage subsequent to the marking of the document
as an exhibit. The later proposition is a rule of fair play. The crucial test is
whether an objection, if taken at the appropriate point of time, would have
enabled the party tendering the evidence to cure the defect and resort to such
mode of proof as would be regular. The omission to object becomes fatal
because by his failure the party entitled to object allows the party tendering
the evidence to act on an assumption that the opposite party is not serious
about the mode of proof. On the other hand, a prompt objection does not
prejudice the party tendering the evidence, for two reasons: firstly, it enables
the Court to apply its mind and pronounce its decision on the question of
admissibility then and there; and secondly, in the event of finding of the
Court on the mode of proof sought to be adopted going against the party
tendering the evidence, the opportunity of seeking indulgence of the Court
for permitting a regular mode or method of proof and thereby removing the
objection raised by the opposite party, is available to the party leading the
evidence. Such practice and procedure is fair to both the parties. Out of the
two types of objections, referred to hereinabove, in the later case, failure to
raise a prompt and timely objection amounts to waiver of the necessity for
insisting on formal proof of a document, the document itself which is sought
to be proved being admissible in evidence. In the first case, acquiescence
would be no bar to raising the objection in superior Court.
Privy Council in Padman and Others vs. Hanwanta and Others [AIR
1915 PC 111] did not permit the appellant to take objection to the
admissibility of a registered copy of a will in appeal for the first time. It was
held that this objection should have been taken in the trial court. It was
observed:
"The defendants have now appeal to the Majesty in
Council, and the case has been argued on their
behalf in great detail. It was urged in the course of
the argument that a registered copy of the will of
1898 was admitted in evidence without sufficient
foundation being led for its admission. No
objection, however, appears to have been taken in
the first court against the copy obtained from the
Registrar’s office being put in evidence. Had such
objection being made at the time, the District
Judge, who tried the case in the first instance,
would probably have seen that the deficiency was
supplied. Their lordships think that there is no
substance in the present contention."
Similar is the view expressed by this Court in P.C.Purushothama
Reddiar vs. S.Perumal [1972 (2) SCR 646]. In this case the police reports
were admitted in evidence without any objection and the objection was
sought to be taken in appeal regarding the admissibility of the reports.
Rejecting the contention it was observed:
"Before leaving this case it is necessary to refer to
one of the contention taken by Mr. Ramamurthi,
learned counsel for the respondent. He contended
that the police reports referred to earlier are
inadmissible in evidence as the Head-constables
who covered those meetings have not been
examined in the case. Those reports were marked
without any objection. Hence it is not open to the
respondent now to object to their admissibility â\200\223
see Bhagat Ram V. Khetu Ram and Anr. [AIR
1929 PC 110]."
Since documents A30 and A34 were admitted in evidence without
any objection, the High Court erred in holding that these documents were
inadmissible being photo copies, the originals of which were not produced.http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9
So is the observation of the High Court that the photocopy of the rent
note was not readable. The photocopy was admitted in evidence, as already
stated. It was read by the trial court as also by the first Appellate Court.
None of the said two courts appear to have felt any difficulty in reading the
document and understanding and appreciating its contents. May be, that the
copy had fainted by the time the matter came up for hearing before the High
Court. The High Court if it felt any difficulty in comfortable reading of the
document then should have said so at the time of hearing and afforded the
parties an opportunity of either producing the original or a readable copy of
the document. Nothing such was done. The High Court has not even
doubted the factum of the contents of the document having been read by the
two courts below, drawn deductions therefrom and based their finding of
fact on this document as well. All that the High Court has said is that the
document was inadmissible in evidence being a photocopy and with that
view we have already expressed our disagreement. Nothing, therefore, turns
on the observation of the High Court that the document was not readable
when the matter came up for hearing before it.
Exhibit A34 is a decision of the Deputy Commissioner in exercise of
his jurisdiction under the Act. He has recorded a finding that the temple is
not the owner of the property in dispute. This decision has become final
between the parties. This document has relevance at least to the extent that
the temple was held by Charity Commissioner to be not the owner of the
property. Consequence of this would be that the attornment by the tenant in
favour of temple during the continuance of tenancy in favour of the
appellant was not valid. The defendant No.2 had attorned as a tenant to
temple treating the latter to be the owner which it could not do as he was
inducted as tenant by the appellant and the estoppel flowing from Section
116 of the Evidence Act operated against him.
From the other documents produced by the appellant i.e. the account
books and Exhibit A34 rent note, it is proved that tenant had always been
treating the appellant as landlord and paying rent to him. Only after 1969
tenant started paying rent to the temple treating it to be the landlord. In the
property tax register the appellant and prior to that his predecessors have
been shown to be the owners. An entry in the municipal record is not
evidence of title. The entry shows the person who was held liable to pay the
rates and taxes to the municipality. The entry may also, depending on the
scope of the provision contemplating such entry, constitute evidence of the
person recorded being in possession of the property. Such entries spread
over a number of years go to show that the person entered into the records
was paying the tax relating to the property and was being acknowledged by
the local authority as the person liable to pay the taxes. If the property
belonged to the temple, there is no reason why the temple would not have
taken steps for having its own name mutated into the municipal records and
commencing payment of taxes or claimed exemption from payment of taxes
if the charity was entitled under the law to exemption from payment of
taxes. Temple has not been able to produce any evidence oral or
documentary to prove its title to the property. Only because tenant attorned
to the temple and started paying rent to the temple in 1969 or that the temple
paid the property tax to the municipal committee after 1969 does not
establish its title to the property in question. These documents are not of
much evidentiary value as these documents came in existence after the
dispute had arisen between the parties. In the absence of any other lawful
claimant the appellant on the strength of the documents produced by was
rightly held to be the owner by the Courts below the High Court.
Attornment by the tenant in favour of the temple was also rightly held to be
invalid. The appellant, in our opinion, would be entitled to recover
possession well as the arrears of rent.
The High Court has, for the purpose of non-suiting the plaintiff,
placed reliance on Brahma Nand Puri Vs. Neki Pur since deceased
represented by Mathra Puri & Anr., AIR 1965 SC 1506, wherein it has
been held that in a suit for ejectment the plaintiff has to succeed or fail on
the title he establishes and if he cannot succeed on the strength of his title his http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9
suit must fail notwithstanding that the defendant in possession has no title to
the property. The law has been correctly stated and the High Court rightly
felt bound to follow the law as laid down by this Court. However, the
question is one of applicability of the law so stated by this Court.
Whether a civil or a criminal case, the anvil for testing of ’proved’,
’disproved’ and ’not proved’, as defined in Section 3 of the Indian Evidence
Act, 1872 is one and the same. A fact is said to be ’proved’ when, if
considering the matters before it, the Court either believes it to exist, or
considers its existence so probable that a prudent man ought, under the
circumstances of a particular case, to act upon the supposition that it exists.
It is the evaluation of the result drawn by applicability of the rule, which
makes the difference. "The probative effects of evidence in civil and
criminal cases are not however always the same and it has been laid down
that a fact may be regarded as proved for purposes of a civil suit, though the
evidence may not be considered sufficient for a conviction in a criminal
case. BEST says : There is a strong and marked difference as to the effect of
evidence in civil and criminal proceedings. In the former a mere
preponderance of probability, due regard being had to the burden of proof, is
a sufficient basis of decision: but in the latter, especially when the offence
charged amounts to treason or felony, a much higher degree of assurance is
required. (BEST, S. 95). While civil cases may be proved by a mere
preponderance of evidence, in criminal cases the prosecution must prove the
charge beyond reasonable doubt." (See Sarkar on Evidence, 15th Edition,
pp.58-59) In the words of Denning LJ (Bater Vs. B, 1950, 2 All ER
458,459) "It is true that by our law there is a higher standard of proof in
criminal cases then in civil cases, but this is subject to the qualification that
there is no absolute standard in either case. In criminal cases the charge
must be proved beyond reasonable doubt, but there may be degrees of proof
within that standard. So also in civil cases there may be degrees of
probability." Agreeing with this statement of law, Hodson, LJ said "Just as
in civil cases the balance of probability may be more readily fitted in one
case than in another, so in criminal cases proof beyond reasonable doubt
may more readily be attained in some cases than in others." (Hornal V.
Neuberger P. Ltd., 1956 3 All ER 970, 977).
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 with him. However, as held in A.
Raghavamma & Anr. Vs. Chenchamma & Anr., AIR 1964 SC 136, 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.
In the present case, the trial Court and the first appellate Court have
noted that the plaintiff has not been able to produce any deed of title directly
lending support to his claim for title and at the same time the defendant too
has no proof of his title much less even an insignia of title. Being a civil
case, the plaintiff cannot be expected to proof his title beyond any
reasonable doubt; a high degree of probability lending assurance of the
availability of title with him would be enough to shift the onus on the
defendant and if the defendant does not succeed in shifting back the onus,
the plaintiff’s burden of proof can safely be deemed to have been
discharged. In the opinion of the two Courts below, the plaintiff had
succeeded in shifting the onus on the defendant and, therefore, the burden of
proof which lay on the plaintiff had stood discharged. The High Court, in
exercise of its limited jurisdiction under Section 100 of CPC, ought not to
have entered into the evaluation of evidence afresh. The High Court has
interfered with a pure and simple finding of fact based on appreciation of http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9
oral and documentary evidence which the High Court ought not to have
done.
The suit property, which is a shop, is situated just adjoining the
property owned by the temple. It has come in the evidence that the property
which is now owned by the temple was at one time owned by the forefathers
of the plaintiff and they made an endowment in favour of the temple. The
father of the plaintiff, and then the plaintiff, continued to be the trustees.
The trouble erupted when in the late sixties the Charity Commissioner
appointed other trustees and Chief Executive Officer of the trust dislodging
the plaintiff from trusteeship. The plaintiff staked his claim to trusteeship of
the temple submitting that the office of the trustee of the temple was
hereditary and belonged to the plaintiff. The plaintiff was managing the
trust property as trustee while the property adjoining to the property of the
temple, i.e. the suit property, was in possession of the plaintiff as owner
occupied by the tenant, the defendant No.2., inducted as such by the father
of the plaintiff. At the instance of the Chief Executive Officer of the trust,
the defendant No.2, during the continuance of the tenancy in favour of the
plaintiff, executed a rent note in favour of the temple attorning the latter as
his landlord. This the defendant no.2 could not have done in view of the rule
of estoppel as contained in Section 116 of the Evidence Act. It was at the
instance of the newly appointed trustees and the Chief Executive Officer
who on behalf of the temple started claiming the suit property in occupation
of the tenant, defendant No.2, to be trust property belonging to the temple.
But for this subsequent development the title of the plaintiff to the suit
property would not have been in jeopardy and there would have been no
occasion to file the present suit.
The learned counsel for the temple, defendant-respondent No.1,
faintly urged that the appellant being a trustee of the temple was trying to
misappropriate the property belonging to the temple. For such an
insinuation there is neither any averment in the written statement nor any
evidence laid. Such a submission made during the course of hearing has
been noted by us only to be summarily rejected. We have already held that
the appellant is the owner of the suit property entitled to its possession and
recovery of arrears of rent from the defendant No.2.
The offshoot of the above discussion is that no question of law much
less a substantial question of law arose in the case worth being gone into the
by the High Court in exercise of its second appellate jurisdiction under
Section 100 of the CPC. The High Court was bound by the findings of fact
arrived at by the two courts below and should not have entered into the
exercise of re-appreciating and evaluating the evidence. The findings of
facts arrived at by the courts below did not suffer from any perversity. There
was no non-reading or misreading of the evidence. A high degree of
preponderance of probability proving title to the suit property was raised in
favour of the appellant and the courts below rightly concluded the burden of
proof raised on the plaintiff having been discharged while the onus shifting
on the defendant remaining undischarged. The judgment of the High Court
cannot be sustained and has to be set aside.
For the reasons stated above, the appeal is accepted. Judgment and
decree of the High Court is set aside and that of the trial court as confirmed
by the first appellate Court is restored. No costs.
CASE NO.:
Appeal (civil) 10585 of 1996
PETITIONER:
R.V.E. Venkatachala Gounder
RESPONDENT:
Arulmigu Viswesaraswami & V.P. Temple & AR
DATE OF JUDGMENT: 08/10/2003
BENCH:
R.C. Lahoti & [Ashok Bhan.
JUDGMENT:
J U D G M E N T
BHAN, J.
Present appeal has been filed against the judgment and decree in
Second Appeal No. 316 of 1983 dated 12.4.1996 by the High Court of
Judicature at Madras. By the impugned order the High Court has set aside
the judgment and decree of the courts below as a result of which the suit
filed by the plaintiff-appellant (hereinafter referred to as ’the appellant’) has
been ordered to be dismissed.
A brief reference to the pleadings of the parties may be made to
appreciate the points raised in this appeal.
Appellant claimed himself to be the owner of the property bearing No.
D.No. 40 comprised in T.S.No. 201, Block No. 4, Ward No. 5 in the
Municipal City of Tirupur. That M.R. Arunachala Mudaliar, defendant No.
2 (hereinafter referred to as the ’tenant’) was inducted as a tenant in the year
1952 by his father at a rent of Rs. 300/- which was enhanced to Rs. 400/- in
the year 1965. Arulmigu Visweswaraswamy & Veeraragava Perumal
Temples, defendant No.1 (hereinafter referred to as the ’temple’) also claim
ownership to the property. Appellant claimed himself to be a hereditary
trustee of the temple. Originally, from 1946-47 till 1959, the property stood
recorded in the municipal register in the name of three persons, namely,
K.N. Palanisami Gounder, R.V. Easwaramurthi Gounder and A.
Narayaanaswami Gounder. Easwaramurthi Gounder was the father of the
appellant. After the death of Easwaramurthi Gounder, father of the
appellant, the name of the appellant came to be registered in the Municipal
record alongwith the other two persons. In an oral family partition the
property came to the share of the appellant and thereafter the names of K.N.
Palanisami Gounder and A. Narayaanaswami Gounder were removed from
the municipal register and the appellant alone came to be recorded as the
sole owner of the suit property in the municipal record. That temple taking
advantage of the litigation pending between it and the appellant in respect of
the trusteeship of the temple, laid claim to the suit property. Tenant paid
rent till 1969 to the appellant and thereafter attorned as a tenant to temple
and started paying rent to it. Appellant filed the suit for declaration of title,
arrears of rent for three years immediately preceding the filing of the suit
and possession of the suit premises.
The temple-defendant No.1, in its written statement, admitted that the
father of the appellant and after his death the appellant has been a trustee of
the temple. In 1968 new set of trustees were appointed by the Charity
Commissioner and the Executive Officer took charge of the temple. The
temple further alleged that the suit property belonged to the temple and the
appellant wrongly claimed himself to be the absolute owner of the property.
The assessment stood in the name of the appellant as Dharmakartha and not http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9
in his individual capacity. From 1969 onwards, tenant began to pay rent to
temple and the rate of rent was enhanced from Rs. 42.50 to Rs. 129/- per
month. On 19th July, 1975 the tenant executed a lease deed in favour of the
temple. That appellant was not entitled to the suit property and was
estopped from denying the title of temple. The tenant-defendant No.2, in his
written statement, took the stand that he became the tenant of the suit
property under the temple. He admitted that he had been paying rent to the
appellant but from the year 1969 onward he started paying rent to the
temple. That the claim of the appellant for arrears of rent was not tenable
and the suit for declaration and for arrears of rent was not maintainable.
On the pleadings of the parties the Trial Court framed three issues,
viz., (i) relating to the title of the suit property; (ii) entitlement of the
appellant to receive rent, and (iii) entitlement of the appellant to get
possession.
By way of oral evidence appellant stepped in the witness box as PW
1. On behalf of the temple, Rajapandian, an employee of the temple,
stepped in the witness box as DW1 and the tenant appeared as his own
witness as DW2. By way of documentary evidence appellant produced
Exhibit A1 to Exhibit A34 consisting of books of accounts; copies of the
municipal registers; receipts of payment of property tax paid in the
municipal committee; documents showing collection of rent; Exhibit A-30
dated 14.10.1969 is the order of the Assistant Commissioner, H.R. and C.E.
Administration Department, Coimbatore in which it has been held that the
suit property does not belong to the temple. Exhibit A-34 dated 6.7.1970 is
a rent agreement executed between the appellant and tenant in respect of the
suit property. Documents A-30 and A-34 are the photostat copies of the
original; they were admitted in evidence and marked as exhibits without any
objection from other side. Temple produced Exhibits B1 to B46 pertaining
to receipt of rent from the tenant and payment of property tax to the
Municipal Committee after the year 1969.
Trial Court relying upon the oral as well as documentary evidence
held that the appellant was the owner of the property and that respondent no.
2 was the tenant of the appellant. Appellant was held to be the owner and
entitled to recover the possession as well as the arrears of rent for three years
immediately preceding the filing of the suit. Temple filed an appeal before
the District Judge, Coimbatore which was dismissed. Aggrieved temple
filed the second appeal in the High Court. High Court reversed the
judgment and decree of the courts below and held that no reliance could be
placed upon the documentary evidence. The books of accounts produced by
the appellant were not kept in regular course of business and therefore no
reliance could be placed on them. Entry made of property in the municipal
records in the name of a person was not evidence of the title of that person to
the property. That the courts below erred in admitting Exhibit A-30 and A-
34 in evidence as these were photostat copies. Documents being photostat
copies could not be admitted in evidence without producing the originals.
That Exhibit A-34 was not even readable.
Learned Counsel for the parties have been heard at length.
While entertaining the second appeal the High Court framed the
following three questions as substantial questions of law as arising for its
consideration:
"1. Whether a person who has been in possession
of the temple as an hereditary trustee can claim
title to one of the items of the property belonging
to the temple as his own?
2. Whether the certificate issued by the Assistant
Commissioner, Hindu Religious and Charitable
Endowments is conclusive as the question of title http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9
to the immovable properties belonging to the
temple?
3. Whether the right of a temple can be negatived
on the mere strength of the assessment register
standing in the name of the plaintiff/Respondent or
any other person?"
[Emphasis supplied]
All the three questions framed proceed on the assumption as if the
property belongs to the temple whereas the findings of the courts below
were to the contrary. Second appeal in the High Court can be entertained
only on substantial questions of law and not otherwise. The point in issue
was as to whom the property belongs. Instead of proceeding to decide the
issues arising in the suit the High Court assumed second appellate
jurisdiction by erroneously assuming the fact that property belongs to the
temple while framing the substantial questions of law. High Court seems to
have unwitting fallen into a serious error in doing so. As to whether the
appellant or the temple had the title to the property in suit was the question
to be determined in the case and the High Court erred in assuming and
proceeding on an assumption that the property belonged to the temple. The
questions framed by the High Court did not arise as substantial questions of
law based on the findings recorded by the courts below â\200\223 concurrently in this
case. In our opinion, the High Courts’ judgment deserves to be set aside on
this short ground and the case remitted back to the High Court for decision
afresh and in accordance with the law, after re-framing only such substantial
questions of law, if any, as do arise in the appeal. But since the suit was
filed in the year 1978 and the parties have been in litigation for the last 25
years, we are refraining from remitting the case back to the High Court for
re-decision on merits.
Onus to prove title of the property undoubtedly is on the person
asserting title to the property. Appellant produced Ledger Books A9, A11,
A13, A15, A17, A19, A21, A23, A25 & A27 for the years 1952, 1953, 1954,
1955, 1957, 1958, 1959, 1960, 1962 & 1964 respectively maintained by the
father of the appellant up to 1959 and thereafter by him. Exhibits A10, A12,
A14, A16, A18, A20, A22, A24, A26 & A28 are the entries of receipt of rent
from tenant made at pages 155, 81, 57, 92, 115, 137, 180, 16, 171 and 139 of
Ledger Books marked A9, A11, A13, A15, A17, A19, A21, A23, A25 &
A27 respectively. In his statement in court, appellant stated that the ledgers
were maintained properly and were submitted to the income tax authorities.
The Ledger Books bear the seal of the department of income tax. That the
books were maintained by his father till 1959 and after his death the
appellant has maintained the Ledgers. Courts below accepted that the books
were maintained in regular course of business but the High Court ruled out
the ledger accounts from consideration on the ground that day books
supporting the ledger entries were not produced. That the person who made
the entries in the ledger books was not produced which caused a doubt as to
whether the books were kept in due course or not. We do not agree with the
finding recorded by the High Court. On a perusal of the statement of the
appellant and the books of accounts it becomes abundantly clear that the
accounts were duly maintained by the father of the appellant till 1959 and
thereafter by the appellant for every year separately and were submitted to
the department of income tax with annual returns. The books bear the seal of
the income tax department. These facts deposed to by the appellant under
oath were not even challenged in cross-examination. No question was
asked from the appellant to the effect that the books were not maintained by
him or by his father properly. No questions were asked from him in crossexamination about the authenticity of the books or the entries made therein.
In the ledger, for each year, there is an entry regarding receipt of rent. In our
view, the books were maintained properly and regularly and there is no
reason to doubt their veracity. http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9
Section 34 of the Evidence Act declares relevant the entries in books
of account regularly kept in the course of business whenever they refer to a
matter into which the court has to enquire. When such entries are shown to
have been made in the hands of a maker who is dead, the applicability of
clause (2) of Section 32 of the Evidence Act is attracted according to which
the statement made by a dead person in the ordinary course of business and
in particular when it consists of any entry or memorandum made by him in
books kept in the ordinary course of business etc. is by itself relevant. The
maker of the entry is not obviously available to depose incorporation of the
entry. In a given case, depending on the facts and circumstances brought on
record, the Court of facts may still refuse to act on the entry in the absence
of some corroboration. In the present case the courts of fact, subordinate to
High Court, have not felt the need of any further corroboration before acting
upon the entries in the ledger books made by the deceased father of the
appellant. So far as the entries made by the appellant are concerned, he has
deposed to making of the entries and corroborated the same by his own
statement. The appellant has been believed by the trial Court and the first
appellate Court and his statement has been found to be enough corroboration
of the entries made by him. Here again no such question of law arose as
would enable the High Court to reverse that finding. The entries amply
prove that for a length of time, upto the year 1959 the appellant’s deceased
father, and then the appellant, was collecting the rent of the suit property
claiming to be the landlord from the defendant No.2 inducted as tenant by
them. They were in possession of the property through their tenant, the
defendant No.2.
We are definitely of the opinion that the High Court has erred in
ruling out the books from consideration on the ground that the same were
not duly maintained or were not proved in the absence of the maker having
stepped in the witness box.
A2 is the extract of Property Tax Demand Register. A3 is the receipt
of payment of property tax by the appellant to the Municipal Committee.
The name of the appellant is entered in ownership column of Municipal
record. Earlier the entries were in the name of his father, K.N.Palanisami
Gounder and A.Narayaanaswami Gounder. A31 is the letter/notice issued
by the Commissioner, Tirupur Municipality to the appellant in the
complaint filed by one Subramaniam Tirupur under The Tamil Nadu Hindu
Religious and Charitable Endowments Act, 1959 (hereinafter referred to as
’the Act’). A32 is the reply filed by the appellant to the said notice. A33 is
the postal acknowledgement signed by the Commissioner of the receipt of
the reply sent by the appellant. A30 is the photo copy of the order passed by
Assistant Commissioner H.R. and C.E.(Admn.) Department, Coimbatore in
exercise of its jurisdiction under Section 63 of the Act in which it has been
held that temple is not the owner of the property in dispute. A34 is the photo
copy of the rent agreement executed between the appellant and the tenantrespondent No.2. The said rent note has also been attested as witness by the
Executive Officer of the Municipal Committee. Tenant while appearing as
DW2 admitted having signed rent note, Exhibit A34 in favour of the
appellant.
The High Court has, by entering into the question of admissibility in
evidence of the abovesaid two very material pieces of documentary evidence
which were admitted in evidence without any objection when they were
tendered in evidence and taken into consideration by the two courts below
while evaluating evidence and recording findings of facts, excluded the
documents from consideration. Was it permissible for the High Court to do
so?
One document A/30 is the photocopy of a certified copy of the
decision given by Charity Commissioner. This document was tendered in
evidence and marked as an exhibit without any objection by the defendants
when this was done. The plaintiff has in his statement deposed and made it
clear that the certified copy, though available, was placed on the record of
another legal proceedings and, therefore, in the present proceedings he was http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9
tendering the photocopy. There is no challenge to this part of the statement
of the plaintiff. If only the tendering of the photocopy would have been
objected to by the defendant, the plaintiff would have then and there sought
for the leave of the Court either for tendering in evidence a certified copy
freshly obtained or else would have summoned the record of the other legal
proceedings with the certified copy available on record for the perusal of the
Court. It is not disputed that the order of Charity Commissioner is a public
document admissible in evidence without formal proof and certified copy of
the document is admissible in evidence for the purpose of proving the
existence and contents of the original. An order of Charity Commissioner is
not per se the evidence of title inasmuch as the Charity Commissioner is not
under the law competent to adjudicate upon questions of title relating to
immovable property which determination lies within the domain of a Civil
Court. However, still the order has relevance as evidence to show that the
property forming subject matter of the order of the Charity Commissioner
was claimed by the temple to be its property but the temple failed in proving
its claim. If only the claimant temple would have succeeded, the item of the
property would have been directed by the Charity Commissioner to be
entered into records as property of the charity, i.e. the temple, which finding
and the entry so made, unless dislodged, would have achieved a finality. On
the contrary, the appellant herein, who claimed the property to be his and not
belonging to the charity, succeeded in the claim asserted by him.
The other document is the rent note executed by defendant No.2 in
favour of plaintiff. Here also photocopy of the rent note was produced. The
defendant No.2 when in witness box was confronted with this document and
he admitted to have executed this document in favour of the plaintiff and
also admitted the existence of his signature on the document. It is nobody’s
case that the original rent note was not admissible in evidence. However,
secondary evidence was allowed to be adduced without any objection and
even in the absence of a foundation for admitting secondary evidence having
been laid by the plaintiff.
The abovesaid facts have been stated by us in somewhat such details
as would have been otherwise unnecessary, only for the purpose of
demonstrating that the objection raised by the defendant-appellant before the
High Court related not to the admissibility of the documentary evidence but
to the mode and method of proof thereof.
Order 13 Rule 4 of the CPC provides for every document admitted in
evidence in the suit being endorsed by or on behalf of the Court, which
endorsement signed or initialed by the Judge amounts to admission of the
document in evidence. An objection to the admissibility of the document
should be raised before such endorsement is made and the Court is obliged
to form its opinion on the question of admissibility and express the same on
which opinion would depend the document being endorsed as admitted or
not admitted in evidence. In the latter case, the document may be returned
by the Court to the person from whose custody it was produced.
The learned counsel for the defendant-respondent has relied on The
Roman Catholic Mission Vs. The State of Madras & Anr. AIR 1966 SC
1457 in support of his submission that a document not admissible in
evidence, though brought on record, has to be excluded from consideration.
We do not have any dispute with the proposition of law so laid down in the
abovesaid case. However, the present one is a case which calls for the
correct position of law being made precise. Ordinarily an objection to the
admissibility of evidence should be taken when it is tendered and not
subsequently. The objections as to admissibility of documents in evidence
may be classified into two classes:- (i) an objection that the document which
is sought to be proved is itself inadmissible in evidence; and (ii) where the
objection does not dispute the admissibility of the document in evidence but
is directed towards the mode of proof alleging the same to be irregular or
insufficient. In the first case, merely because a document has been marked
as ’an exhibit’, an objection as to its admissibility is not excluded and is
available to be raised even at a later stage or even in appeal or revision. In http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9
the latter case, the objection should be taken before the evidence is tendered
and once the document has been admitted in evidence and marked as an
exhibit, the objection that it should not have been admitted in evidence or
that the mode adopted for proving the document is irregular cannot be
allowed to be raised at any stage subsequent to the marking of the document
as an exhibit. The later proposition is a rule of fair play. The crucial test is
whether an objection, if taken at the appropriate point of time, would have
enabled the party tendering the evidence to cure the defect and resort to such
mode of proof as would be regular. The omission to object becomes fatal
because by his failure the party entitled to object allows the party tendering
the evidence to act on an assumption that the opposite party is not serious
about the mode of proof. On the other hand, a prompt objection does not
prejudice the party tendering the evidence, for two reasons: firstly, it enables
the Court to apply its mind and pronounce its decision on the question of
admissibility then and there; and secondly, in the event of finding of the
Court on the mode of proof sought to be adopted going against the party
tendering the evidence, the opportunity of seeking indulgence of the Court
for permitting a regular mode or method of proof and thereby removing the
objection raised by the opposite party, is available to the party leading the
evidence. Such practice and procedure is fair to both the parties. Out of the
two types of objections, referred to hereinabove, in the later case, failure to
raise a prompt and timely objection amounts to waiver of the necessity for
insisting on formal proof of a document, the document itself which is sought
to be proved being admissible in evidence. In the first case, acquiescence
would be no bar to raising the objection in superior Court.
Privy Council in Padman and Others vs. Hanwanta and Others [AIR
1915 PC 111] did not permit the appellant to take objection to the
admissibility of a registered copy of a will in appeal for the first time. It was
held that this objection should have been taken in the trial court. It was
observed:
"The defendants have now appeal to the Majesty in
Council, and the case has been argued on their
behalf in great detail. It was urged in the course of
the argument that a registered copy of the will of
1898 was admitted in evidence without sufficient
foundation being led for its admission. No
objection, however, appears to have been taken in
the first court against the copy obtained from the
Registrar’s office being put in evidence. Had such
objection being made at the time, the District
Judge, who tried the case in the first instance,
would probably have seen that the deficiency was
supplied. Their lordships think that there is no
substance in the present contention."
Similar is the view expressed by this Court in P.C.Purushothama
Reddiar vs. S.Perumal [1972 (2) SCR 646]. In this case the police reports
were admitted in evidence without any objection and the objection was
sought to be taken in appeal regarding the admissibility of the reports.
Rejecting the contention it was observed:
"Before leaving this case it is necessary to refer to
one of the contention taken by Mr. Ramamurthi,
learned counsel for the respondent. He contended
that the police reports referred to earlier are
inadmissible in evidence as the Head-constables
who covered those meetings have not been
examined in the case. Those reports were marked
without any objection. Hence it is not open to the
respondent now to object to their admissibility â\200\223
see Bhagat Ram V. Khetu Ram and Anr. [AIR
1929 PC 110]."
Since documents A30 and A34 were admitted in evidence without
any objection, the High Court erred in holding that these documents were
inadmissible being photo copies, the originals of which were not produced.http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9
So is the observation of the High Court that the photocopy of the rent
note was not readable. The photocopy was admitted in evidence, as already
stated. It was read by the trial court as also by the first Appellate Court.
None of the said two courts appear to have felt any difficulty in reading the
document and understanding and appreciating its contents. May be, that the
copy had fainted by the time the matter came up for hearing before the High
Court. The High Court if it felt any difficulty in comfortable reading of the
document then should have said so at the time of hearing and afforded the
parties an opportunity of either producing the original or a readable copy of
the document. Nothing such was done. The High Court has not even
doubted the factum of the contents of the document having been read by the
two courts below, drawn deductions therefrom and based their finding of
fact on this document as well. All that the High Court has said is that the
document was inadmissible in evidence being a photocopy and with that
view we have already expressed our disagreement. Nothing, therefore, turns
on the observation of the High Court that the document was not readable
when the matter came up for hearing before it.
Exhibit A34 is a decision of the Deputy Commissioner in exercise of
his jurisdiction under the Act. He has recorded a finding that the temple is
not the owner of the property in dispute. This decision has become final
between the parties. This document has relevance at least to the extent that
the temple was held by Charity Commissioner to be not the owner of the
property. Consequence of this would be that the attornment by the tenant in
favour of temple during the continuance of tenancy in favour of the
appellant was not valid. The defendant No.2 had attorned as a tenant to
temple treating the latter to be the owner which it could not do as he was
inducted as tenant by the appellant and the estoppel flowing from Section
116 of the Evidence Act operated against him.
From the other documents produced by the appellant i.e. the account
books and Exhibit A34 rent note, it is proved that tenant had always been
treating the appellant as landlord and paying rent to him. Only after 1969
tenant started paying rent to the temple treating it to be the landlord. In the
property tax register the appellant and prior to that his predecessors have
been shown to be the owners. An entry in the municipal record is not
evidence of title. The entry shows the person who was held liable to pay the
rates and taxes to the municipality. The entry may also, depending on the
scope of the provision contemplating such entry, constitute evidence of the
person recorded being in possession of the property. Such entries spread
over a number of years go to show that the person entered into the records
was paying the tax relating to the property and was being acknowledged by
the local authority as the person liable to pay the taxes. If the property
belonged to the temple, there is no reason why the temple would not have
taken steps for having its own name mutated into the municipal records and
commencing payment of taxes or claimed exemption from payment of taxes
if the charity was entitled under the law to exemption from payment of
taxes. Temple has not been able to produce any evidence oral or
documentary to prove its title to the property. Only because tenant attorned
to the temple and started paying rent to the temple in 1969 or that the temple
paid the property tax to the municipal committee after 1969 does not
establish its title to the property in question. These documents are not of
much evidentiary value as these documents came in existence after the
dispute had arisen between the parties. In the absence of any other lawful
claimant the appellant on the strength of the documents produced by was
rightly held to be the owner by the Courts below the High Court.
Attornment by the tenant in favour of the temple was also rightly held to be
invalid. The appellant, in our opinion, would be entitled to recover
possession well as the arrears of rent.
The High Court has, for the purpose of non-suiting the plaintiff,
placed reliance on Brahma Nand Puri Vs. Neki Pur since deceased
represented by Mathra Puri & Anr., AIR 1965 SC 1506, wherein it has
been held that in a suit for ejectment the plaintiff has to succeed or fail on
the title he establishes and if he cannot succeed on the strength of his title his http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9
suit must fail notwithstanding that the defendant in possession has no title to
the property. The law has been correctly stated and the High Court rightly
felt bound to follow the law as laid down by this Court. However, the
question is one of applicability of the law so stated by this Court.
Whether a civil or a criminal case, the anvil for testing of ’proved’,
’disproved’ and ’not proved’, as defined in Section 3 of the Indian Evidence
Act, 1872 is one and the same. A fact is said to be ’proved’ when, if
considering the matters before it, the Court either believes it to exist, or
considers its existence so probable that a prudent man ought, under the
circumstances of a particular case, to act upon the supposition that it exists.
It is the evaluation of the result drawn by applicability of the rule, which
makes the difference. "The probative effects of evidence in civil and
criminal cases are not however always the same and it has been laid down
that a fact may be regarded as proved for purposes of a civil suit, though the
evidence may not be considered sufficient for a conviction in a criminal
case. BEST says : There is a strong and marked difference as to the effect of
evidence in civil and criminal proceedings. In the former a mere
preponderance of probability, due regard being had to the burden of proof, is
a sufficient basis of decision: but in the latter, especially when the offence
charged amounts to treason or felony, a much higher degree of assurance is
required. (BEST, S. 95). While civil cases may be proved by a mere
preponderance of evidence, in criminal cases the prosecution must prove the
charge beyond reasonable doubt." (See Sarkar on Evidence, 15th Edition,
pp.58-59) In the words of Denning LJ (Bater Vs. B, 1950, 2 All ER
458,459) "It is true that by our law there is a higher standard of proof in
criminal cases then in civil cases, but this is subject to the qualification that
there is no absolute standard in either case. In criminal cases the charge
must be proved beyond reasonable doubt, but there may be degrees of proof
within that standard. So also in civil cases there may be degrees of
probability." Agreeing with this statement of law, Hodson, LJ said "Just as
in civil cases the balance of probability may be more readily fitted in one
case than in another, so in criminal cases proof beyond reasonable doubt
may more readily be attained in some cases than in others." (Hornal V.
Neuberger P. Ltd., 1956 3 All ER 970, 977).
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 with him. However, as held in A.
Raghavamma & Anr. Vs. Chenchamma & Anr., AIR 1964 SC 136, 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.
In the present case, the trial Court and the first appellate Court have
noted that the plaintiff has not been able to produce any deed of title directly
lending support to his claim for title and at the same time the defendant too
has no proof of his title much less even an insignia of title. Being a civil
case, the plaintiff cannot be expected to proof his title beyond any
reasonable doubt; a high degree of probability lending assurance of the
availability of title with him would be enough to shift the onus on the
defendant and if the defendant does not succeed in shifting back the onus,
the plaintiff’s burden of proof can safely be deemed to have been
discharged. In the opinion of the two Courts below, the plaintiff had
succeeded in shifting the onus on the defendant and, therefore, the burden of
proof which lay on the plaintiff had stood discharged. The High Court, in
exercise of its limited jurisdiction under Section 100 of CPC, ought not to
have entered into the evaluation of evidence afresh. The High Court has
interfered with a pure and simple finding of fact based on appreciation of http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9
oral and documentary evidence which the High Court ought not to have
done.
The suit property, which is a shop, is situated just adjoining the
property owned by the temple. It has come in the evidence that the property
which is now owned by the temple was at one time owned by the forefathers
of the plaintiff and they made an endowment in favour of the temple. The
father of the plaintiff, and then the plaintiff, continued to be the trustees.
The trouble erupted when in the late sixties the Charity Commissioner
appointed other trustees and Chief Executive Officer of the trust dislodging
the plaintiff from trusteeship. The plaintiff staked his claim to trusteeship of
the temple submitting that the office of the trustee of the temple was
hereditary and belonged to the plaintiff. The plaintiff was managing the
trust property as trustee while the property adjoining to the property of the
temple, i.e. the suit property, was in possession of the plaintiff as owner
occupied by the tenant, the defendant No.2., inducted as such by the father
of the plaintiff. At the instance of the Chief Executive Officer of the trust,
the defendant No.2, during the continuance of the tenancy in favour of the
plaintiff, executed a rent note in favour of the temple attorning the latter as
his landlord. This the defendant no.2 could not have done in view of the rule
of estoppel as contained in Section 116 of the Evidence Act. It was at the
instance of the newly appointed trustees and the Chief Executive Officer
who on behalf of the temple started claiming the suit property in occupation
of the tenant, defendant No.2, to be trust property belonging to the temple.
But for this subsequent development the title of the plaintiff to the suit
property would not have been in jeopardy and there would have been no
occasion to file the present suit.
The learned counsel for the temple, defendant-respondent No.1,
faintly urged that the appellant being a trustee of the temple was trying to
misappropriate the property belonging to the temple. For such an
insinuation there is neither any averment in the written statement nor any
evidence laid. Such a submission made during the course of hearing has
been noted by us only to be summarily rejected. We have already held that
the appellant is the owner of the suit property entitled to its possession and
recovery of arrears of rent from the defendant No.2.
The offshoot of the above discussion is that no question of law much
less a substantial question of law arose in the case worth being gone into the
by the High Court in exercise of its second appellate jurisdiction under
Section 100 of the CPC. The High Court was bound by the findings of fact
arrived at by the two courts below and should not have entered into the
exercise of re-appreciating and evaluating the evidence. The findings of
facts arrived at by the courts below did not suffer from any perversity. There
was no non-reading or misreading of the evidence. A high degree of
preponderance of probability proving title to the suit property was raised in
favour of the appellant and the courts below rightly concluded the burden of
proof raised on the plaintiff having been discharged while the onus shifting
on the defendant remaining undischarged. The judgment of the High Court
cannot be sustained and has to be set aside.
For the reasons stated above, the appeal is accepted. Judgment and
decree of the High Court is set aside and that of the trial court as confirmed
by the first appellate Court is restored. No costs.
