{"id":251409,"date":"2003-10-08T00:00:00","date_gmt":"2003-10-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/r-v-e-venkatachala-gounder-vs-arulmigu-viswesaraswami-v-p-on-8-october-2003"},"modified":"2015-11-09T11:14:19","modified_gmt":"2015-11-09T05:44:19","slug":"r-v-e-venkatachala-gounder-vs-arulmigu-viswesaraswami-v-p-on-8-october-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/r-v-e-venkatachala-gounder-vs-arulmigu-viswesaraswami-v-p-on-8-october-2003","title":{"rendered":"R.V.E. Venkatachala Gounder vs Arulmigu Viswesaraswami & V.P. … on 8 October, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
R.V.E. Venkatachala Gounder vs Arulmigu Viswesaraswami & V.P. … on 8 October, 2003<\/div>\n
Author: Bhan<\/div>\n
Bench: R.C. Lahoti, [Ashok Bhan.<\/div>\n
           CASE NO.:\nAppeal (civil)  10585 of 1996\n\nPETITIONER:\nR.V.E. Venkatachala Gounder \t\t\t\t\t\n\nRESPONDENT:\nArulmigu Viswesaraswami & V.P. Temple & AR \t\t\n\nDATE OF JUDGMENT: 08\/10\/2003\n\nBENCH:\nR.C. Lahoti & [Ashok Bhan.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
BHAN, J.\n<\/p>\n
\tPresent appeal has been filed against the judgment and decree in
\nSecond Appeal No. 316 of 1983 dated 12.4.1996 by the High Court of
\nJudicature at Madras.  By the impugned order the High Court has set aside
\nthe judgment and decree of the courts below as a result of which the suit
\nfiled by the plaintiff-appellant (hereinafter referred to as ‘the appellant’) has
\nbeen ordered to be dismissed.\n<\/p>\n
\tA brief reference to the pleadings of the parties may be made to
\nappreciate the points raised in this appeal.\n<\/p>\n
\tAppellant claimed himself to be the owner of the property bearing No.
\nD.No. 40 comprised in T.S.No. 201, Block No. 4, Ward No. 5 in the
\nMunicipal City of Tirupur.  That M.R. Arunachala Mudaliar, defendant No.
\n2 (hereinafter referred to as the ‘tenant’)  was inducted as a tenant in the year
\n1952 by his father at a rent of Rs. 300\/- which was enhanced to Rs. 400\/- in
\nthe year 1965. Arulmigu Visweswaraswamy & Veeraragava Perumal
\nTemples, defendant No.1 (hereinafter referred to as the ‘temple’) also claim
\nownership to the property.  Appellant claimed himself to be a hereditary
\ntrustee of the temple.  Originally, from 1946-47 till 1959, the property stood
\nrecorded in the municipal register in the name of three persons, namely,
\nK.N. Palanisami Gounder, R.V. Easwaramurthi Gounder and A.
\nNarayaanaswami Gounder.  Easwaramurthi Gounder was the father of the
\nappellant.  After the death of Easwaramurthi Gounder, father of the
\nappellant, the name of the appellant came to be registered in the Municipal
\nrecord alongwith the other two persons.  In an oral family partition the
\nproperty came to the share of the appellant and thereafter the names of K.N.
\nPalanisami Gounder and A. Narayaanaswami Gounder were removed from
\nthe municipal register and the appellant alone came to be recorded as the
\nsole owner of the suit property in the municipal record.  That temple taking
\nadvantage of the litigation pending between it and the appellant in respect of
\nthe trusteeship of the temple, laid claim to the suit property.  Tenant paid
\nrent till 1969 to the appellant and thereafter attorned as a tenant to temple
\nand started paying rent to it.  Appellant filed the suit for declaration of title,
\narrears of rent for three years immediately preceding the filing of the suit
\nand possession of the suit premises.\n<\/p>\n
The temple-defendant No.1, in its written statement, admitted that the
\nfather of the appellant and after his death the appellant has been a trustee of
\nthe temple.  In 1968 new set of trustees were appointed by the Charity
\nCommissioner and the Executive Officer took charge of the temple.  The
\ntemple further alleged that the suit property belonged to the temple and the
\nappellant wrongly claimed himself to be  the absolute owner of the property.
\nThe assessment stood in the name of the appellant as Dharmakartha and not
\nin his individual capacity.  From 1969 onwards, tenant began to pay rent to
\ntemple and the rate of rent was enhanced from Rs. 42.50 to Rs. 129\/- per
\nmonth. On 19th July, 1975 the tenant executed a lease deed in favour of the
\ntemple.  That appellant was not entitled to the suit property and was
\nestopped from denying the title of temple.  The tenant-defendant No.2, in his
\nwritten statement, took the stand that he became the tenant of the suit
\nproperty under the temple.  He admitted that he had been paying rent to the
\nappellant but from the year 1969 onward he started paying rent to the
\ntemple.  That the claim of the appellant for arrears of rent was not tenable
\nand the suit for declaration and for arrears of rent was not maintainable.\n<\/p>\n
On the pleadings of the parties the Trial Court framed three issues,
\nviz.,  (i) relating to the title of the suit property; (ii) entitlement of the
\nappellant to receive rent, and (iii) entitlement of the appellant to get
\npossession.\n<\/p>\n
\tBy way of oral evidence appellant stepped in the witness box as PW\n<\/p>\n
1.  On behalf of the temple, Rajapandian, an employee of the temple,
\nstepped in the witness box as DW1 and the tenant appeared as his own
\nwitness as DW2. By way of documentary evidence appellant produced
\nExhibit A1 to Exhibit A34 consisting of books of accounts; copies of the
\nmunicipal registers; receipts of payment of property tax paid in the
\nmunicipal committee; documents showing collection of rent;  Exhibit A-30
\ndated 14.10.1969 is the order of the Assistant Commissioner, H.R. and C.E.
\nAdministration Department, Coimbatore in which it has been held that the
\nsuit property does not belong to the temple.  Exhibit A-34 dated 6.7.1970 is
\na rent agreement executed between the appellant and tenant in respect  of the
\nsuit property. Documents A-30 and A-34 are the photostat copies of the
\noriginal; they were admitted in evidence and marked as exhibits without any
\nobjection from other side.  Temple produced Exhibits B1 to B46 pertaining
\nto receipt of rent from the tenant and payment of property tax to the
\nMunicipal Committee after the year 1969.\n<\/p>\n
\tTrial Court relying upon the oral as well as documentary evidence
\nheld that the appellant was the owner of the property and that respondent no.
\n2 was the tenant of the appellant.  Appellant was held to be the owner and
\nentitled to recover the possession as well as the arrears of rent for three years
\nimmediately preceding the filing of the suit. Temple filed an appeal before
\nthe District Judge, Coimbatore which was dismissed.  Aggrieved temple
\nfiled the second appeal in the High Court.  High Court reversed the
\njudgment and decree of the courts below and held that no reliance could be
\nplaced upon the documentary evidence. The books of accounts produced by
\nthe appellant were not kept in regular course of business and therefore no
\nreliance could be placed on them.  Entry made of property in the municipal
\nrecords in the name of a person was not evidence of the title of that person to
\nthe property.  That the courts below erred in admitting Exhibit A-30 and A-
\n34 in evidence as these were photostat copies.  Documents being photostat
\ncopies could not be admitted in evidence without producing the originals.
\nThat Exhibit A-34 was not even readable.\n<\/p>\n
\tLearned Counsel for the parties have been heard at length.\n<\/p>\n
\tWhile entertaining the second appeal the High Court framed the
\nfollowing three questions as substantial questions of law as arising for its
\nconsideration:\n<\/p>\n
“1.  Whether a person who has been in possession
\nof the temple as an hereditary trustee can claim
\ntitle to one of the items of the property belonging
\nto the temple as his own?\n<\/p>\n
2. Whether the certificate issued by the Assistant
\nCommissioner, Hindu Religious and Charitable
\nEndowments is conclusive as the question of title
\nto the immovable properties belonging to the
\ntemple?\n<\/p>\n
3.   Whether the right of a temple can be negatived
\non the mere strength of the assessment register
\nstanding in the name of the plaintiff\/Respondent or
\nany other person?”\n<\/p>\n
\t\t\t\t\t\t     [Emphasis supplied]<\/p>\n
\tAll the three questions framed proceed on the assumption as if the
\nproperty belongs to the temple whereas the findings of the courts below
\nwere to the contrary.  Second appeal in the High Court can be entertained
\nonly on substantial questions of law and not otherwise.  The point in issue
\nwas as to whom the property belongs. Instead of proceeding to decide the
\nissues arising in the suit the High Court assumed second appellate
\njurisdiction by erroneously assuming the fact that property belongs to the
\ntemple while framing the substantial questions of law.  High Court seems to
\nhave unwitting fallen into a serious error in doing so. As to whether the
\nappellant or the temple had the title to the property in suit was the question
\nto be determined in  the case and the High Court erred in assuming and
\nproceeding on an assumption that the property belonged to the temple.  The
\nquestions framed by the High Court did not arise as substantial questions of
\nlaw based on the findings recorded by the courts below \u2013 concurrently in this
\ncase.  In our opinion, the High Courts’ judgment deserves to be set aside on
\nthis short ground and the case remitted back to the High Court for decision
\nafresh and in accordance with the law, after re-framing only such substantial
\nquestions of law, if any, as do arise in the appeal.  But since the suit was
\nfiled in the year 1978 and the parties have been in litigation for the last 25
\nyears, we are refraining from remitting the case back to the High Court for
\nre-decision on merits.\n<\/p>\n
\tOnus to prove title of the property undoubtedly is on the person
\nasserting title to the property.  Appellant produced Ledger Books A9, A11,
\nA13, A15, A17, A19, A21, A23, A25 & A27 for the years 1952, 1953, 1954,
\n1955, 1957, 1958, 1959, 1960, 1962 & 1964 respectively maintained by the
\nfather of the appellant up to 1959 and thereafter by him.  Exhibits A10, A12,
\nA14, A16, A18, A20, A22, A24, A26 & A28 are the entries of receipt of rent
\nfrom tenant made at pages 155, 81, 57, 92, 115, 137, 180, 16, 171 and 139 of
\nLedger Books marked A9, A11, A13, A15, A17, A19, A21, A23, A25 &
\nA27 respectively.  In his statement in court, appellant stated that the ledgers
\nwere maintained properly and were submitted to the income tax authorities.
\nThe Ledger Books bear the seal of the department of income tax.  That the
\nbooks were maintained by his father till 1959 and after his death the
\nappellant has maintained the Ledgers.  Courts below accepted that the books
\nwere maintained in regular course of business but the High Court ruled out
\nthe ledger accounts from consideration on the ground that day books
\nsupporting the ledger entries were not produced.  That the person who made
\nthe entries in the ledger books was not produced which caused a doubt as to
\nwhether the books were kept in due course or not.  We do not agree with the
\nfinding recorded by the High Court.  On a perusal of the statement of the
\nappellant and the books of accounts it becomes abundantly clear that the
\naccounts were duly maintained by the father of the appellant till 1959 and
\nthereafter by the appellant for every year separately and were submitted to
\nthe department of income tax with annual returns. The books bear the seal of
\nthe income tax department.  These facts deposed to by the appellant under
\noath were not even challenged in cross-examination.   No question was
\nasked from the appellant to the effect that the books were not maintained by
\nhim or by his father properly.  No questions were asked from him in cross-
\nexamination about the authenticity of the books or the entries made therein.
\nIn the ledger, for each year, there is an entry regarding receipt of rent.  In our
\nview, the books were maintained properly and regularly and there is no
\nreason to doubt their veracity.\n<\/p>\n
\tSection 34<\/a> of the Evidence Act declares relevant the entries in books
\nof account regularly kept in the course of business whenever they refer to a
\nmatter into which the court has to enquire.  When such entries are shown to
\nhave been made in the hands of a maker who is dead, the applicability of
\nclause (2) of Section 32<\/a> of the Evidence Act is attracted according to which
\nthe statement made by a dead person in the ordinary course of business and
\nin particular when it consists of any entry or memorandum made by him in
\nbooks kept in the ordinary course of business etc. is by itself relevant.  The
\nmaker of the entry is not obviously available to depose incorporation of the
\nentry.  In a given case, depending on the facts and circumstances brought on
\nrecord, the Court of facts may still refuse to act on the entry in the absence
\nof some corroboration.  In the present case the courts of fact, subordinate to
\nHigh Court, have not felt the need of any further corroboration before acting
\nupon the entries in the ledger books made by the deceased father of the
\nappellant.  So far as the entries made by the appellant are concerned, he has
\ndeposed to making of the entries and corroborated the same by his own
\nstatement.  The appellant has been believed by the trial Court and the first
\nappellate Court and his statement has been found to be enough corroboration
\nof the entries made by him. Here again no such question of law arose as
\nwould enable the High Court to reverse that finding.  The entries amply
\nprove that for a length of time, upto the year 1959 the appellant’s deceased
\nfather, and then the appellant, was collecting the rent of the suit property
\nclaiming to be the landlord from the defendant No.2 inducted as tenant by
\nthem.  They were in possession of the property through their tenant, the
\ndefendant No.2.\n<\/p>\n
 \tWe are definitely of the opinion that the High Court has erred in
\nruling out the books from consideration on the ground that the same were
\nnot duly maintained or were not proved in the absence of the maker having
\nstepped in the witness box.\n<\/p>\n
\tA2 is the extract of Property Tax Demand Register.  A3 is the receipt
\nof payment of property tax by the appellant to the Municipal Committee.
\nThe name of the appellant is entered in ownership column of Municipal
\nrecord.  Earlier the entries were in the name of his father, K.N.Palanisami
\nGounder and A.Narayaanaswami Gounder.  A31 is the letter\/notice issued
\nby the Commissioner, Tirupur Municipality  to the appellant in the
\ncomplaint filed by one Subramaniam Tirupur under The Tamil Nadu Hindu
\nReligious and Charitable Endowments Act<\/a>, 1959 (hereinafter referred to as
\n‘the Act’).  A32 is the reply filed by the appellant to the said notice.  A33 is
\nthe postal acknowledgement signed by the Commissioner of the receipt of
\nthe reply sent by the appellant.  A30 is the photo copy of the order passed by
\nAssistant Commissioner H.R. and C.E.(Admn.) Department, Coimbatore in
\nexercise of its jurisdiction under Section 63<\/a> of the Act in which it has been
\nheld that temple is not the owner of the property in dispute.  A34 is the photo
\ncopy of the rent agreement executed between the appellant and the tenant-
\nrespondent No.2. The said rent note has also been attested as witness by the
\nExecutive Officer of the Municipal Committee. Tenant while appearing as
\nDW2 admitted having signed rent note, Exhibit A34 in favour of the
\nappellant.\n<\/p>\n
\tThe High Court has, by entering into the question of admissibility in
\nevidence of the abovesaid two very material pieces of documentary evidence
\nwhich were admitted in evidence without any objection when they were
\ntendered in evidence and taken into consideration by the two courts below
\nwhile evaluating evidence and recording findings of facts, excluded the
\ndocuments from consideration. Was it permissible for the High Court to do
\nso?\n<\/p>\n
\tOne document A\/30 is the photocopy of a certified copy of the
\ndecision given by Charity Commissioner.  This document was tendered in
\nevidence and marked as an exhibit without any objection by the defendants
\nwhen this was done.  The plaintiff has in his statement deposed and made it
\nclear that the certified copy, though available, was placed on the record of
\nanother legal proceedings and, therefore, in the present proceedings he was
\ntendering the photocopy.  There is no challenge to this part of the statement
\nof the plaintiff.  If only the tendering of the photocopy would have been
\nobjected to by the defendant, the plaintiff would have then and there sought
\nfor the leave of the Court either for tendering in evidence a certified copy
\nfreshly obtained or else would have summoned the record of the other legal
\nproceedings with the certified copy available on record for the perusal of the
\nCourt.   It is not disputed that the order of Charity Commissioner is a public
\ndocument admissible in evidence without formal proof and certified copy of
\nthe document is admissible in evidence for the purpose of proving the
\nexistence and contents of the original.   An order of Charity Commissioner is
\nnot per se the evidence of title inasmuch as the Charity Commissioner is not
\nunder the law competent to adjudicate upon questions of title relating to
\nimmovable property which determination lies within the domain of a Civil
\nCourt.  However, still the order has relevance as evidence to show that the
\nproperty forming subject matter of the order of the Charity Commissioner
\nwas claimed by the temple to be its property but the temple failed in proving
\nits claim.  If only the claimant temple would have succeeded, the item of the
\nproperty would have been directed by the Charity Commissioner to be
\nentered into records as property of the charity, i.e. the temple, which finding
\nand the entry so made, unless dislodged, would have achieved a finality.  On
\nthe contrary, the appellant herein, who claimed the property to be his and not
\nbelonging to the charity, succeeded in the claim asserted by him.\n<\/p>\n
\tThe other document is the rent note executed by defendant No.2 in
\nfavour of plaintiff.  Here also photocopy of the rent note was produced.  The
\ndefendant No.2 when in witness box was confronted with this document and
\nhe admitted to have executed this document in favour of the plaintiff and
\nalso admitted the existence of his signature on the document.  It is nobody’s
\ncase that the original rent note was not admissible in evidence.  However,
\nsecondary evidence was allowed to be adduced without any objection and
\neven in the absence of a foundation for admitting secondary evidence having
\nbeen laid by the plaintiff.\n<\/p>\n
\tThe abovesaid facts have been stated by us in somewhat such details
\nas would have been otherwise unnecessary, only for the purpose of
\ndemonstrating that the objection raised by the defendant-appellant before the
\nHigh Court related not to the admissibility of the documentary evidence but
\nto the mode and method of proof thereof.\n<\/p>\n
\tOrder 13 Rule 4 of the CPC provides for every document admitted in
\nevidence in the suit being endorsed by or on behalf of the Court, which
\nendorsement signed or initialed by the Judge amounts to admission of the
\ndocument in evidence.  An objection to the admissibility of the document
\nshould be raised before such endorsement is made and the Court is obliged
\nto form its opinion on the question of admissibility and express the same on
\nwhich opinion would depend the document being endorsed as admitted or
\nnot admitted in evidence.  In the latter case, the document may be returned
\nby the Court to the person from whose custody it was produced.\n<\/p>\n
\tThe learned counsel for the defendant-respondent has relied on The
\nRoman Catholic Mission Vs. The State of Madras & Anr. AIR 1966 SC
\n1457 in support of his submission that a document not admissible in
\nevidence, though brought on record, has to be excluded from consideration.
\nWe do not have any dispute with the proposition of law so laid down in the
\nabovesaid case.  However, the present one is a case which calls for the
\ncorrect position of law being made precise.  Ordinarily an objection to the
\nadmissibility of evidence should be taken when it is tendered and not
\nsubsequently.  The objections as to admissibility of documents in evidence
\nmay be classified into two classes:- (i) an objection that the document which
\nis sought to be proved is itself inadmissible in evidence; and (ii) where the
\nobjection does not dispute the admissibility of the document in evidence but
\nis directed towards the mode of proof alleging the same to be irregular or
\ninsufficient.  In the first case, merely because a document has been marked
\nas ‘an exhibit’, an objection as to its admissibility is not excluded and is
\navailable to be raised even at a later stage or even in appeal or revision.  In
\nthe latter case, the objection should be taken before the evidence is tendered
\nand once the document has been admitted in evidence and marked as an
\nexhibit, the objection that it should not have been admitted in evidence or
\nthat the mode adopted for proving the document is irregular cannot be
\nallowed to be raised at any stage subsequent to the marking of the document
\nas an exhibit.  The later proposition is a rule of fair play.  The crucial test is
\nwhether an objection, if taken at the appropriate point of time, would have
\nenabled the party tendering the evidence to cure the defect and resort to such
\nmode of proof as would be regular.  The omission to object becomes fatal
\nbecause by his failure the party entitled to object allows the party tendering
\nthe evidence to act on an assumption that the opposite party is not serious
\nabout the mode of proof.  On the other hand, a prompt objection does not
\nprejudice the party tendering the evidence, for two reasons: firstly, it enables
\nthe Court to apply its mind and pronounce its decision on the question of
\nadmissibility then and there; and secondly, in the event of finding of the
\nCourt on the mode of proof sought to be adopted going against the party
\ntendering the evidence, the opportunity of seeking indulgence of the Court
\nfor permitting a regular mode or method of proof and thereby removing the
\nobjection raised by the opposite party, is available to the party leading the
\nevidence.  Such practice and procedure is fair to both the parties. Out of the
\ntwo types of objections, referred to hereinabove, in the later case, failure to
\nraise a prompt and timely objection amounts to waiver of the necessity for
\ninsisting on formal proof of a document, the document itself which is sought
\nto be proved being admissible in evidence.  In the first case, acquiescence
\nwould be no bar to raising the objection in  superior Court.\n<\/p>\n
Privy Council in Padman and Others vs. Hanwanta and Others<\/a> [AIR
\n1915 PC 111] did not permit the appellant to take objection to the
\nadmissibility of a registered copy of a will in appeal for the first time.  It was
\nheld that this objection should have been taken in the trial court.  It was
\nobserved:\n<\/p>\n
“The defendants have now appeal to the Majesty in
\nCouncil, and the case has been argued on their
\nbehalf in great detail.  It was urged in the course of
\nthe argument that a registered copy of the will of
\n1898 was admitted in evidence without sufficient
\nfoundation being led for its admission.  No
\nobjection, however, appears to have been taken in
\nthe first court against the copy obtained from the
\nRegistrar’s office being put in evidence.  Had such
\nobjection being made at the time, the District
\nJudge, who tried the case  in the first instance,
\nwould probably have seen that the deficiency was
\nsupplied.  Their lordships think that there is  no
\nsubstance in the present contention.”\n<\/p>\n
 Similar is the view expressed by this Court in P.C.Purushothama
\nReddiar vs. S.Perumal<\/a> [1972 (2) SCR 646].  In this case the police reports
\nwere admitted in evidence without any objection and the objection was
\nsought to be taken in appeal regarding the admissibility of the reports.
\nRejecting the contention it was observed:\n<\/p>\n
“Before leaving this case it is necessary to refer to
\none of the contention taken by Mr. Ramamurthi,
\nlearned counsel for the respondent.  He contended
\nthat the police reports referred to earlier are
\ninadmissible in evidence as the Head-constables
\nwho covered those meetings have not been
\nexamined in the case.  Those reports were marked
\nwithout any objection.  Hence it is not open to the
\nrespondent now to object to their admissibility \u2013
\nsee Bhagat Ram V. Khetu Ram and Anr. [AIR
\n1929 PC 110].”\n<\/p>\n
 Since documents A30 and A34 were admitted in evidence  without
\nany objection, the High Court erred in holding that these documents were
\ninadmissible being photo copies, the originals of which were not produced.\n<\/p>\n
So is the observation of the High Court that the photocopy of the rent
\nnote was not readable.  The photocopy was admitted in evidence, as already
\nstated.  It was read by the trial court as also by the first Appellate Court.
\nNone of the said two courts appear to have felt any difficulty in reading the
\ndocument and understanding and appreciating its contents.  May be, that the
\ncopy had fainted by the time the matter came up for hearing before the High
\nCourt.  The High Court if it felt any difficulty in comfortable reading of the
\ndocument then should have said so at the time of hearing and afforded the
\nparties an opportunity of either producing the original or a readable copy of
\nthe document.  Nothing such was done.  The High Court has not even
\ndoubted the factum of the contents of the document having been read by the
\ntwo courts below, drawn deductions therefrom and based their finding of
\nfact on this document as well.  All that the High Court has said is that the
\ndocument was inadmissible in evidence being a photocopy and with that
\nview we have already expressed our disagreement.  Nothing, therefore, turns
\non the observation of the High Court that the document was not readable
\nwhen the matter came up for hearing before it.\n<\/p>\n
\tExhibit A34 is a decision of the Deputy Commissioner in exercise of
\nhis jurisdiction under the Act. He has recorded a finding that the temple is
\nnot the owner of the property in dispute.  This decision has become final
\nbetween the parties.  This document  has relevance at least to the extent that
\nthe temple was held by Charity Commissioner to be not the owner of the
\nproperty.  Consequence of this would be that the attornment by the tenant in
\nfavour of temple during the continuance of tenancy in favour of the
\nappellant was not valid.  The defendant No.2 had attorned as a tenant to
\ntemple treating the latter to be the owner which it could not do as he was
\ninducted as tenant by the appellant and the estoppel flowing from Section
\n116<\/a> of the Evidence Act operated against him.\n<\/p>\n
\tFrom the other documents produced by the appellant i.e. the account
\nbooks and Exhibit A34 rent note, it is proved that tenant had always been
\ntreating the appellant as landlord and paying rent to him.  Only after 1969
\ntenant started paying rent to the temple treating it to be the landlord.  In the
\nproperty tax register the appellant and prior to that his predecessors have
\nbeen shown to be the owners.  An entry in the municipal record is not
\nevidence of title.  The entry shows the person who was held liable to pay the
\nrates and taxes to the municipality.  The entry may also, depending on the
\nscope of the provision contemplating such entry, constitute evidence of the
\nperson recorded being in possession of the property.  Such entries spread
\nover a number of years go to show that the person entered into the records
\nwas paying the tax relating to the property and was being acknowledged by
\nthe local authority as the person liable to pay the taxes. If the property
\nbelonged to the temple, there is no reason why the temple would not have
\ntaken steps for having its own name mutated into the municipal records and
\ncommencing payment of taxes or claimed exemption from payment of taxes
\nif the charity was entitled under the law to exemption from payment of
\ntaxes.  Temple has not been able to produce any evidence oral or
\ndocumentary to prove its title to the property.   Only because tenant attorned
\nto the temple and started paying rent to the temple in 1969 or that the temple
\npaid the property tax to the municipal committee after 1969 does not
\nestablish its title to the property in question.  These documents are not of
\nmuch evidentiary value as these documents came in existence after the
\ndispute had arisen between the parties.  In the absence of any other lawful
\nclaimant the appellant on the strength of the documents produced by was
\nrightly held to be the owner by the Courts below the High Court.
\nAttornment by the tenant in favour of the temple was also rightly held to be
\ninvalid.  The appellant, in our opinion, would be entitled to recover
\npossession well as the arrears of rent.\n<\/p>\n
The High Court has, for the purpose of non-suiting the plaintiff,
\nplaced reliance on Brahma Nand Puri Vs. Neki Pur since deceased
\nrepresented by Mathra Puri & Anr., AIR 1965 SC 1506, wherein it has
\nbeen held that in a suit for ejectment the plaintiff has to succeed or fail on
\nthe title he establishes and if he cannot succeed on the strength of his title his
\nsuit must fail notwithstanding that the defendant in possession has no title to
\nthe property.  The law has been correctly stated and the High Court rightly
\nfelt bound to follow the law as laid down by this Court.  However, the
\nquestion is one of applicability of the law so stated by this Court.\n<\/p>\n
\tWhether a civil or a criminal case, the anvil for testing of ‘proved’,
\n‘disproved’ and ‘not proved’, as defined in Section 3<\/a> of the Indian Evidence
\nAct, 1872 is one and the same.  A fact is said to be ‘proved’ when, if
\nconsidering the matters before it, the Court either believes it to exist, or
\nconsiders its existence so probable that a prudent man ought, under the
\ncircumstances of a particular case, to act upon the supposition that it exists.
\nIt is the evaluation of the result drawn by applicability of the rule, which
\nmakes the difference.  “The probative effects of evidence in civil and
\ncriminal cases are not however always the same and it has been laid down
\nthat a fact may be regarded as proved for purposes of a civil suit, though the
\nevidence may not be considered sufficient for a conviction in a criminal
\ncase.  BEST says : There is a strong and marked difference as to the effect of
\nevidence in civil and criminal proceedings.  In the former a mere
\npreponderance of probability, due regard being had to the burden of proof, is
\na sufficient basis of decision: but in the latter, especially when the offence
\ncharged amounts to treason or felony, a much higher degree of assurance is
\nrequired. (BEST, S. 95<\/a>).  While civil cases may be proved by a mere
\npreponderance of evidence, in criminal cases the prosecution must prove the
\ncharge beyond reasonable doubt.” (See Sarkar on Evidence, 15th Edition,
\npp.58-59)  In the words of Denning LJ (Bater Vs. B, 1950, 2 All ER
\n458,459) “It is true that by our law there is a higher standard of proof in
\ncriminal cases then in civil cases, but this is subject to the qualification that
\nthere is no absolute standard in either case.  In criminal cases the charge
\nmust be proved beyond reasonable doubt, but there may be degrees of proof
\nwithin that standard.  So also in civil cases there may be degrees of
\nprobability.”   Agreeing with this statement of law, Hodson, LJ said “Just as
\nin civil cases the balance of probability may be more readily fitted in one
\ncase than in another, so in criminal cases proof beyond reasonable doubt
\nmay more readily be attained in some cases than in others.” (Hornal V.
\nNeuberger P. Ltd., 1956 3 All ER 970, 977).\n<\/p>\n
\tIn a suit for recovery of possession based on title it is for the plaintiff
\nto prove his title and satisfy the Court that he, in law, is entitled to
\ndispossess the defendant from his possession over the suit property and for
\nthe possession to be restored with him.  However, as held in A.
\nRaghavamma & Anr. Vs. Chenchamma & Anr., AIR 1964 SC 136, there is
\nan essential distinction between burden of proof and onus of proof: burden
\nof proof lies upon a person who has to prove the fact and which never shifts.
\nOnus of proof shifts.  Such a shifting of onus is a continuous process in the
\nevaluation of evidence.  In our opinion, in a suit for possession based on title
\nonce the plaintiff has been able to create a high degree of probability so as to
\nshift the onus on the defendant it is for the defendant to discharge his onus
\nand in the absence thereof the burden of proof lying on the plaintiff shall be
\nheld to have been discharged so as to amount to proof of the plaintiff’s title.\n<\/p>\n
\tIn the present case, the trial Court and the first appellate Court have
\nnoted that the plaintiff has not been able to produce any deed of title directly
\nlending support to his claim for title and at the same time the defendant too
\nhas no proof of his title much less even an insignia of title.  Being a civil
\ncase, the plaintiff cannot be expected to proof his title beyond any
\nreasonable doubt; a high degree of probability lending assurance of the
\navailability of title with him would be enough to shift the onus on the
\ndefendant and if the defendant does not succeed in shifting back the onus,
\nthe plaintiff’s burden of proof can safely be deemed to have been
\ndischarged.  In the opinion of the two Courts below, the plaintiff had
\nsucceeded in shifting the onus on the defendant and, therefore, the burden of
\nproof which lay on the plaintiff had stood discharged.  The High Court, in
\nexercise of its limited jurisdiction under Section 100 of CPC, ought not to
\nhave entered into the evaluation of evidence afresh.  The High Court has
\ninterfered with a pure and simple finding of fact based on appreciation of
\noral and documentary evidence which the High Court ought not to have
\ndone.\n<\/p>\n
 \tThe suit property, which is a shop, is situated just adjoining the
\nproperty owned by the temple.  It has come in the evidence that the property
\nwhich is now owned by the temple was at one time owned by the forefathers
\nof the plaintiff and they made an endowment in favour of the temple.  The
\nfather of the plaintiff, and then the plaintiff, continued to be the trustees.
\nThe trouble erupted when in the late sixties the Charity Commissioner
\nappointed other trustees and Chief Executive Officer of the trust dislodging
\nthe plaintiff from trusteeship.  The plaintiff staked his claim to trusteeship of
\nthe temple submitting that the office of the trustee of the temple was
\nhereditary and belonged to the plaintiff.  The plaintiff was managing the
\ntrust property as trustee while the property adjoining to the property of the
\ntemple, i.e. the suit property, was in possession of the plaintiff as owner
\noccupied by the tenant, the defendant No.2., inducted as such by the father
\nof the plaintiff.  At the instance of the Chief Executive Officer of the trust,
\nthe defendant No.2, during the continuance of the tenancy in favour of the
\nplaintiff, executed a rent note in favour of the temple attorning the latter as
\nhis landlord.  This the defendant no.2 could not have done in view of the rule
\nof estoppel as contained in Section 116<\/a> of the Evidence Act.  It was at the
\ninstance of the newly appointed trustees and the Chief Executive Officer
\nwho on behalf of the temple started claiming the suit property in occupation
\nof the tenant, defendant No.2, to be trust property belonging to the temple.
\nBut for this subsequent development the title of the plaintiff to the suit
\nproperty would not have been in jeopardy and there would have been no
\noccasion to file the present suit.\n<\/p>\n
\tThe learned counsel for the temple, defendant-respondent No.1,
\nfaintly urged that the appellant being a trustee of the temple was trying to
\nmisappropriate the property belonging to the temple.  For such an
\ninsinuation there is neither any averment in the written statement nor any
\nevidence laid.  Such a submission made during the course of hearing has
\nbeen noted by us only to be summarily rejected.  We have already held that
\nthe appellant is the owner of the suit property entitled to its possession and
\nrecovery of arrears of rent from the defendant No.2.\n<\/p>\n
\tThe offshoot of the above discussion is that no question of law much
\nless a substantial question of law arose in the case worth being gone into the
\nby the High Court in exercise of its second appellate jurisdiction under
\nSection 100 of the CPC.  The High Court was bound by the findings of fact
\narrived at by the two courts below and should not have entered into the
\nexercise of re-appreciating and  evaluating the evidence.  The findings of
\nfacts arrived at by the courts below did not suffer from any perversity. There
\nwas no non-reading or misreading of the evidence.  A high degree of
\npreponderance of probability proving title to the suit property was raised in
\nfavour of the appellant and the courts below rightly concluded the burden of
\nproof raised on the plaintiff having been discharged while the onus shifting
\non the defendant remaining undischarged.  The judgment of the High Court
\ncannot be sustained and has to be set aside.\n<\/p>\n
\tFor the reasons stated above, the appeal is accepted.  Judgment and
\ndecree of the High Court is set aside and that of the trial court as confirmed
\nby the first appellate Court is restored. No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India R.V.E. Venkatachala Gounder vs Arulmigu Viswesaraswami & V.P. … on 8 October, 2003 Author: Bhan Bench: R.C. Lahoti, [Ashok Bhan. 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-251409","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nR.V.E. 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