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2003(8) Supreme 193
SUPREME COURT OF INDIA
(From Madras High Court)
R.C. Lahoti & Ashok Bhan, JJ.
R.V.E. Venkatachala Gounder -Appellant
versus
Arulmigu Viswesaraswami & V.P. Temple & Anr. -Respondents
Civil Appeal No. 10585 of 1996
Decided on 8-10-2003
Counsel for the Parties :
For the Appellant : R. Nedumaran, Beno Bencigar, Ms. M.F. Humayunisa and M.A. Chinnasamy, Advocates.
For the Respondents : Subramonium Prasad, R. Gopala Krishnan and Abhay Kumar, Advocates.
Held : 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 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 latter 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. (Para 18)
(ii) Civil Procedure Code, 1908-Order 13, Rule 4-Evidence Act, 1872-Section 34-Rent note-Photostat copy, admissibility-Appellant claimed himself to be owner of property-Defendant 2 was inducted as a tenant in year 1952 by his father-Defendant temple also claiming ownership of property-Appellant was hereditary trustee of the temple-Originally, property stood recorded in municipal register in name of three persons including appellant s father-After death of father of appellant, name of appellant alone was registered in Municipal record-Tenant paid rent till 1969 to appellant and thereafter attorned as a tenant to temple and started paying rent to it-Appellant filed suit for declaration of title, arrears of rent and possession of suit premises-Photostat copies of original rent agreement executed between appellant and tenant produced in Court-Document admitted in evidence and marked as exhibits without any objection-Trial Court held appellant as owner of property-Appeal against-High Court reversed the judgment holding that books of accounts produced by appellant were not kept in regular course of business-Whether judgment of High Court is sustainable-(No).
Held : 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. (Para 9)
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 witnesses box. (Paras 10 &11)
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. (Para 14)
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. (Para 15)
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. (Para 20)
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 that 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. (Para 23)
(iii) Evidence Act, 1872-Section 3-Words prove , disproved and not proved -Definitions-A fact is said to be proved when-Distinction between civil and criminal cases-Suit for recovery of possession based on title-Standard and onus of proof.
Held : 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). (Para 25)
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 that 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. (Para 26)
(iv) Civil Procedure Code, 1908-Section 100-Second appeal-Scope-High Court bound by findings of fact arrived at by two Courts below-No question of law-Findings of facts arrived at by Courts below did not suffer from any perversity-No non reading or misreading of evidence-Judgment of High Court reversing decree passed by trial Court, held unsustainable.
Held : 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. (Para 30)
The key findings of the judgment are as follows:
In a suit for recovery of possession based on title, it is the responsibility of the plaintiff to prove their ownership and establish their legal right to dispossess the defendant and regain possession of the property. The burden of proof lies with the plaintiff, but once a high probability of ownership is established, the onus shifts to the defendant to disprove this claim. If the defendant fails to do so, the plaintiff's proof is considered sufficient. (!) (!)
Evidence such as entries in books of account, municipal records, and official orders can be relevant and admissible in proof of ownership, provided they are properly maintained and admitted without objection. The maintenance of accounts in the regular course of business, corroborated by official seals and consistent testimony, supports the claim of ownership. The failure to produce original documents when copies are admitted does not automatically render evidence inadmissible if no objection was raised at the appropriate time. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
The entries in official records, such as property tax registers and municipal records, indicating the person liable for taxes or recorded as owner, are strong evidence of possession and control, but they do not, by themselves, conclusively prove ownership of the property. The actual title must be established through other substantive evidence. (!) (!) (!) (!) (!)
The judgment emphasizes that the courts below correctly appreciated the evidence and that the High Court erred in re-evaluating and dismissing the evidence, particularly the accounts and official documents, which supported the appellant’s ownership claim. The findings of fact by the lower courts were upheld, and the High Court’s interference was found to be unwarranted. (!) (!) (!) (!)
The court clarified that the standard of proof in civil cases is a preponderance of probability, and a high degree of probability is sufficient to shift the burden of proof to the defendant. The evidence presented by the appellant was deemed adequate to establish his ownership, and the defendant failed to disprove it. (!) (!)
The judgment also states that the High Court’s framing of questions assuming the property belonged to the temple was a legal error, as the actual issue was the question of ownership, which remained unresolved. The case was remitted for a proper re-evaluation of the legal questions, but due to the lengthy litigation history, the appellate court decided to restore the original decrees of the lower courts. (!) (!)
Overall, the court reaffirmed that the evidence and findings of the lower courts sufficiently proved the appellant’s ownership and entitled him to recover possession and arrears of rent, and that the High Court’s decision was unsustainable. The appeal was allowed, and the original decrees were restored. (!) (!)
JUDGMENT
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.
2. A brief reference to the pleadings of the parties may be made to appreciate the points raised in this appeal.
3. Appellant claimed himself to be the owner of the property bearing No. D.N. 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. Narayaanswami 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 down 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.
4. 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 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.
5. 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.
6. 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 DW 1 and the tenant appeared
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