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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

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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

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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 cross-

examination 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.

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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 tenant-

respondent 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

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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

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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.

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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

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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

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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.