RVE v. Arul Migo

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(2003) 8 Supreme Court Cases 752 : 2003 SCC OnLine SC 1117
(BEFORE R.C. LAHOTI AND ASHOK BHAN, JJ.)
R.V.E. VENKATACHALA GOUNDER . . Appellant;

Versus
ARULMIGU VISWESARASWAMI & V.P. TEMPLE AND ANOTHER . .
Respondents.
Civil Appeal No. 10585 of 1996† , decided on October 8, 2003
A. Constitution of India — Art. 136 — Remand/Transfer — Remand — Propriety of —
Relevance of oldness of the case in deciding — Trial court decreeing the suit and declaring
the plaintiff to be the owner of the suit property and first appellate court upholding the
decree — In second appeal, instead of adverting to that question High Court proceeding on
the assumption that the suit property belonged to the defendant, and framing certain
questions as substantial questions of law which had actually not arisen as substantial
questions of law based on the concurrent findings of the courts below — In such
circumstances although the High Court's judgment deserved to be remitted back for
decision afresh, but since the suit had been filed 25 long years ago, it be decided on merits
— Civil Procedure Code, 1908, S. 100 — Second appeal — Held, can be entertained only on a
substantial question of law and not otherwise
B. Evidence Act, 1872 — S. 65 — Secondary evidence relating to documents — Objection
as to admissibility of — Stage at which can be raised — Held, such objections can be
classified as (i) objection that the document sought to be proved is itself inadmissible, and
(ii) objection directed not against the admissibility of the document but against the mode of
proof thereof on the ground of irregularity or insufficiency — Objection under category (i)
can be raised even after the document has been marked as “an exhibit” or even in appeal
or revision, but the objection under category (ii) can be raised when the evidence is
tendered but not after the
Page: 753
document has been admitted in evidence and marked as an exhibit — In the present case the ledger
books and photostat copies of the order in question and of the rent agreement were admitted in
evidence by trial court without any objection from the opposite side — Therefore, the objection
raised before High Court in second appeal that in the absence of the deceased maker of the entries in
the ledger books and in the absence of production of the originals the said documents ought not to
have been admitted, fell under category (ii) and High Court erred in upholding that objection in appeal
— Civil Procedure Code, 1908, Or. 13 R. 4 and Ss. 96 and 100 — Objection as to admissibility of
document in evidence — Maintainability in appeal
C. Evidence Act, 1872 — Ss. 34 and 32(2) — Books of accounts containing yearwise
entries regarding receipt of rent from suit property, submitted to Income Tax Department
with annual returns and bearing seal of that Department — Entries made by the plaintiff and
in the past by his father (since deceased) — Facts deposed to by the appellant not
challenged in cross-examination — In such circumstances, the entries made by the
appellant's father, held, attracted S. 32(2), Evidence Act — Hence, when believed by the
trial court and first appellate court, the finding recorded by the said courts on that basis,
held, did not raise such a question of law as would warrant reversal of that finding by High
Court in appeal — High Court erred in excluding the said books from consideration on the
ground that the same were not duly maintained or were not proved in the absence of the
appearance of the maker of the entries
D. Hindu Law — T.N. Hindu Religious and Charitable Endowments Act, 1959 (22 of 1959)
— S. 63 — Assistant Commissioner's order under, holding that the temple, respondent
63.
herein, -----------------------------------------------------------------------------------------------------------------------------------------------------------
was not the owner of the property in dispute between it and the appellant —
Evidentiary value of — Such an order although not per se evidence of the title of the other
party, held, nonetheless relevant as evidence to show that the temple had raised, but failed,
to prove its claim to that property — In the present case, the said order achieving finality
between the parties but the tenant inducted by the appellant attorning as a tenant to the
temple during the continuance of tenancy in favour of the appellant — Such an act on the
part of the tenant, held, invalid and attracted estoppel under S. 116, Evidence Act —
Evidence Act, 1872, S. 116
E. Municipalities — Municipal taxes — Property tax — Mutation — Entry of the name of a
person in property tax register — Evidentiary value of, in case of rival claims to the property
— Such entry although not an evidence of title but may, depending on the scope of the
provision contemplating the entry, constitute evidence of such person's possession of the
property — In the absence of any other lawful claimant, the person so recorded rightly held
to be the owner of the property by the courts below the High Court
F. Evidence Act, 1872 — Ss. 3 and 101, 102 & 110 — Test of “proved”, “disproved” and
“not proved” in a civil or a criminal case, held, is one and the same — However, it is the
valuation of the result drawn by the applicability of the rule contained in S. 3 that makes the
difference — In a suit for possession of property based on title, if the plaintiff creates a high
degree of probability of his title to ownership, instead of proving his title
Page: 754
beyond any reasonable doubt, held, that would be enough to shift the onus on the defendant — If
the defendant fails to shift back the onus, held, the plaintiff's burden of proof would stand discharged
— In the present case the two courts below the High Court having held the plaintiff to have thus
discharged the burden of his proof, held, High Court erred in interfering with such a pure and simple
finding of fact based on evidence in exercise of its limited jurisdiction under S. 100 — Civil Procedure
Code, 1908, S. 100 and Or. 20 R. 9 — Practice and procedure — Findings of fact
The appellant filed a suit impleading the respondent temple as Defendant 2 and one M as
Defendant 1. The appellant claimed himself to be the owner of the suit property and sought
declaration of his title, arrears of rent and possession of the suit premises. The plaint stated that M
(hereinafter “the tenant”) was inducted as a tenant by the appellant's father. The appellant claimed
himself to be a hereditary trustee of the temple. From 1946-47 till 1959 the property stood
recorded in the municipal register in the name of three persons including the appellant's father, on
whose death the appellant's name was mutated in the records. Subsequently, consequent to an oral
family partition, the appellant's name was recorded in the municipal register as owner of the property
and the names of the other two persons were removed. The appellant alleged that the tenant paid
rent till 1969 to the appellant and thereafter attorned as a tenant to the temple and started paying
rent to it. Admitting that the appellant's father and after his death the appellant remained trustee of
the temple, the respondent temple denied the appellant's claim to the ownership of the suit property
and instead claimed itself to be the owner thereof. The temple added that in 1968 a new set of
trustees was appointed by the Charity Commissioner and the Executive Officer took charge of the
temple. That from 1969 onwards, the tenant began to pay rent to the temple. That on 19-7-1975
the tenant executed a lease deed in favour of the temple. Defendant 2 supported the temple's
contention. The appellant contended that as owner of the property he had been paying property tax
to the Municipal Committee. The temple contended that the assessment stood in the name of the
appellant as dharmakartha and not in his individual capacity. 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 the appellant appeared as PW 1, while an employee of the temple appeared as DW 1 on
behalf of the temple. The tenant appeared as DW 2 as his own witness. By way of documentary
evidence the appellant produced books of account; copies of the municipal registers; receipts of
payment of property tax paid in the Municipal Committee; documents showing collection of rent; and
photostat copies of an order of the Assistant Commissioner, HR and CE Administration Department
in which it had been held that the suit property did not belong to the temple, and of a rent agreement
dated 6-7-1970 executed between the appellant and the tenant. The said photostat copies were
admitted in evidence and marked as exhibits without any objection from the other side. The temple
63.
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produced certain documents pertaining to receipt of rent from the tenant and payment of property
tax to the Municipal Committee after the year 1969. The trial court decreed the suit and the decree
was affirmed in appeal. However, in second appeal filed by the temple, the High Court reversed the
judgment and decree of the courts below and held that no reliance could be placed upon the
documentary evidence as the books of account produced by the appellant were not kept in
Page: 755
regular course of business. That the entry made of the property in the municipal records in the name
of a person was not an evidence of the title of that person to the property. That the courts below
erred in admitting the photostat copies of the order of the AC, HR&CE and of the rent agreement in
evidence without the production of the originals. 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 a 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 AC, HR&CE is conclusive of the question of title 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 (appellant herein) or any other person?”
Allowing the appeal, the Supreme Court
Held :
Second appeal in the High Court can be entertained only on substantial questions of law and not
otherwise. 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 —
concurrently in the present case. The High Court's judgment deserved to be set aside on that short
ground and the case remitted back to the High Court for decision afresh after reframing only such
substantial questions of law, if any, as did arise in the appeal. But since the suit was filed about 25
years ago, that course is not being adopted herein.
(Para 10)
The ledger books produced by the appellant bear the seal of the Income Tax Department. These
facts deposed to by the appellant under oath were not even challenged in the cross-examination. In
the ledger, for each year, there is an entry regarding receipt of rent. This shows that the books were
maintained properly and regularly. Such entries are relevant under Section 34, Evidence Act. When
such entries are shown to have been made in the hands of a maker who is dead, Section 32(2),
Evidence Act is attracted. 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 the 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 the
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. Here again no such question of law arose as
would enable the High Court to reverse that finding.
(Paras 12 and 13)
Order 13 Rule 4 CPC provides for every document admitted in evidence in the suit being endorsed
by or on behalf of the court, which endorsement signed or initialled by the Judge amounts to
admission of the document in evidence. An objection to the admissibility of the document should be
raised before such
Page: 756
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
63.
admitted-----------------------------------------------------------------------------------------------------------------------------------------------------------
in evidence.
(Para 19)
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 when 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 latter 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.
(Para 20)
Padman v. Hanwanta, AIR 1915 PC 111 : 19 CWN 929; P.C. Purushothama Reddiar v. S. Perumal,
(1972) 1 SCC 9 : (1972) 2 SCR 646, followed
Bhagat Ram v. Khetu Ram, AIR 1929 PC 110; Roman Catholic Mission v. State of Madras, AIR 1966
SC 1457, referred to
The photostat copy of the certified copy of the Charity Commissioner's order and the photocopy
of the rent note executed by Defendant 2 in favour of the appellant-plaintiff were tendered in
evidence without any objection by the defendants. 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. Therefore, the High Court erred in holding that these documents were
inadmissible being photocopies, the originals of which were not produced.
(Paras 16 to 18, 23 and 24)
An order of the Charity Commissioner is not per se 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 the subject-matter of the order
was claimed by the temple to be its property but the temple failed in proving its claim. The Deputy
Commissioner in his decision in exercise of his jurisdiction under Section 63 of the T.N. Hindu
Religious and Charitable Endowments Act, 1959, 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 the Charity Commissioner to be not
the owner of the property. Consequence of this would be that the attornment by the tenant in
favour of the temple during the continuance of tenancy in favour of the appellant was not valid.
Defendant 2 had attorned as a tenant to the temple treating the latter to be the owner which it could
not do as he was inducted as a tenant by the appellant and the estoppel flowing from Section 116 of
the Evidence Act operated against him.
(Paras 25, 31 and 16)
Page: 757
The tenant had always been treating the appellant as the landlord and paying rent to him. Only
after 1969 the 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
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authority-----------------------------------------------------------------------------------------------------------------------------------------------------------
as the person liable to pay the taxes.
(Para 26)
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. It is the evaluation of
the result drawn by the applicability of the rule, which makes the difference. 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.
(Paras 28, 29 and 33)
Bater v. Bater, (1950) 2 All ER 458 : 1951 P 35 (CA); Hornal v. Neuberger Products Ltd., (1956) 3
All ER 970 : (1957) 1 QB 247 : (1956) 3 WLR 1034 (CA), relied on
Brahma Nand Puri v. Neki Puri, AIR 1965 SC 1506, considered
A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136, referred to
Sarkar on Evidence, 15th Edn., pp. 58-59, referred to
The present case being a civil one, the plaintiff could not be expected to prove 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 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 oral and documentary evidence which the High Court ought not to have
done. The High Court was bound by the findings of fact arrived at by the two courts below.
(Paras 30 and 33)
G. Constitution of India — Art. 136 — Pleadings/New plea — New plea raised during
hearing — Appeal challenging High Court's decision made in second appeal — Dispute as to
ownership of property between appellant trustee of temple and the respondent temple —
During hearing before Supreme Court the respondent temple, without having made any
such averment in the written statement and without having laid any evidence, contending
that the appellant being a trustee of the temple was trying to misappropriate the temple's
property — Such a plea summarily rejected
(Para 32)
H-M/29095/C
Page: 758
Advocates who appeared in this case:

R. Nedumaran, Beno Bencigar, Ms M.F. Humayunisa and M.A. Chinnasamy,
Advocates, for the Appellant;
Subramonium Prasad, R. Gopala Krishnan and Abhay Kumar, Advocates, for the
Respondents.
Chronological list of cases cited on page(s)
1. (1972) 1 SCC 9 : (1972) 2 SCR 646, P.C. Purushothama

Reddiar v. S. Perumal 765c-d
63.
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2. AIR 1966 SC 1457, Roman Catholic Mission v. State of Madras 764a-b
3. AIR 1965 SC 1506, Brahma Nand Puri v. Neki Puri 767a
4. AIR 1964 SC 136, A. Raghavamma v. A. Chenchamma 768a-b
5. (1956) 3 All ER 970 : (1957) 1 QB 247 : (1956) 3 WLR 1034

(CA), Hornal v. Neuberger Products Ltd. 767h
6. (1950) 2 All ER 458 : 1951 P 35 (CA), Bater v. Bater 767f
7. AIR 1929 PC 110, Bhagat Ram v. Khetu Ram 765e
8. AIR 1915 PC 111 : 19 CWN 929, Padman v. Hanwanta 765a
The Judgment of the Court was delivered by

ASHOK BHAN, J.— The 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. The appellant claimed himself to be the owner of the property bearing No. D. No.
40 comprised in TS No. 201, Block No. 4, Ward No. 5 in the Municipal City of Tirupur.
That M.R. Arunachala Mudaliar, Defendant 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 Visweswaraswami and Veeraragava
Perumal Temples, Defendant 1 (hereinafter referred to as “the temple”) also claim
ownership to the property. The 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 records along with 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 the 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. The tenant paid rent till 1969 to the
Page: 759
63.
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appellant and thereafter attorned as a tenant to the temple and started paying rent to
it. The 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 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 a new set of trustees was 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, the tenant
began to pay rent to the temple and the rate of rent was enhanced from Rs 42.50 to
Rs 129 per month. On 19-7-1975 the tenant executed a lease deed in favour of the
temple. That the appellant was not entitled to the suit property and was estopped
from denying the title of the temple. The tenant, Defendant 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 onwards 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 the 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 as his own witness as DW 2. By way of
documentary evidence the appellant produced Exhibit A-1 to Exhibit A-34 consisting
of books of account; 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, HR and CE
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 Exts. 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 the other
side. The temple produced Exhibits B-1 to B-46 pertaining to receipt of rent from the
tenant and payment of property tax to the Municipal Committee after the year 1969.
7. The trial court relying upon the oral as well as documentary evidence held that
the appellant was the owner of the property and that Respondent 2 was the tenant of
the appellant. The appellant was held to be the owner and entitled to recover the
possession as well as the arrears of rent for three years
Page: 760
immediately preceding the filing of the suit. The temple filed an appeal before the
District Judge, Coimbatore which was dismissed. Aggrieved, the temple filed the
second appeal in the High Court. The 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 account produced by the appellant were not kept in regular
course of business and therefore no reliance could be placed on them. Entry made of
the property in the municipal records in the name of a person was not an evidence of
the title of that person to the property. That the courts below erred in admitting
63.
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Exhibits 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.
8. Learned counsel for the parties have been heard at length.

9. 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 a 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 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)
10. 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
the second appellate jurisdiction by erroneously assuming the fact that the property
belongs to the temple while framing the substantial questions of law. The High Court
seems to have unwittingly 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 — concurrently in this case. In our opinion, the High Court's
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 reframing 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
Page: 761
refraining from remitting the case back to the High Court for redecision on merits.
11. The onus to prove title of the property undoubtedly is on the person asserting
title to the property. The appellant produced ledger books, Exts. A-9, A-11, A-13, A-
15, A-17, A-19, A-21, A-23, A-25 and A-27 for the years 1952, 1953, 1954, 1955,
1957, 1958, 1959, 1960, 1962 and 1964 respectively, maintained by the father of the
appellant up to 1959 and thereafter by him. Exhibits A-10, A-12, A-14, A-16, A-18, A-
20, A-22, A-24, A-26 and A-28 are the entries of receipt of rent from the tenant made
at pp. 155, 81, 57, 92, 115, 137, 180, 16, 171 and 139 of the ledger books marked as
Exts. A-9, A-11, A-13, A-15, A-17, A-19, A-21, A-23, A-25 and A-27 respectively. In
his statement in court, the 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
63.
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and after his death the appellant has maintained the ledgers. The 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 daybooks
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
account 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 the 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.
12. 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 sub-section (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 the
Page: 762
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, up to 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 Defendant 2 inducted as a tenant by them. They were in possession of
the property through their tenant, Defendant 2.
13. 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.
14. A-2 is the extract of the property tax demand register. Ext. A-3 is the receipt of
payment of property tax by the appellant to the Municipal Committee. The name of the
appellant is entered in the ownership column of the municipal record. Earlier the
entries were in the name of his father, K.N. Palanisami Gounder and A.
Narayaanaswami Gounder. Ext. A-31 is the letter/notice issued by the Commissioner,
Tirupur Municipality to the appellant in the complaint filed by one Subramaniam
63.
Tirupur-----------------------------------------------------------------------------------------------------------------------------------------------------------
under the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959
(hereinafter referred to as “the Act”). Ext. A-32 is the reply filed by the appellant to
the said notice. Ext. A-33 is the postal acknowledgement signed by the Commissioner
of the receipt of the reply sent by the appellant. Ext. A-30 is the photocopy of the
order passed by the Assistant Commissioner, HR and CE (Admn.) Department,
Coimbatore in exercise of his jurisdiction under Section 63 of the Act in which it has
been held that the temple is not the owner of the property in dispute. Ext. A-34 is the
photocopy of the rent agreement executed between the appellant and the tenant,
Respondent 2. The said rent note has also been attested as witness by the Executive
Officer of the Municipal Committee. The tenant while appearing as DW 2 admitted
having signed the rent note, Exhibit A-34 in favour of the appellant.
15. 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?
16. One document Ext. A-30 is the photocopy of a certified copy of the decision
given by the 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
Page: 763
another legal proceedings and, therefore, in the present proceedings he was 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 the 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 the Charity Commissioner is not per se 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 the 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.
17. The other document is the rent note executed by Defendant 2 in favour of the
plaintiff. Here also the photocopy of the rent note was produced. Defendant 2 when in
the 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
63.
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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.
18. The abovesaid facts have been stated by us in somewhat such detail 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.
19. Order 13 Rule 4 CPC provides for every document admitted in evidence in the
suit being endorsed by or on behalf of the court, which endorsement signed or
initialled 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
Page: 764
admitted in evidence. In the latter case, the document may be returned by the court
to the person from whose custody it was produced.
20. The learned counsel for the defendant-respondent has relied on Roman Catholic
Mission v. State of Madras1 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 the latter
case, the objection should be taken when 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 latter 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
63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
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 a
superior court.
Page: 765
21. The Privy Council in Padman v. Hanwanta2 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: (AIR p. 112)
“The defendants have now appealed to His 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 laid 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 been 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.”
22. Similar is the view expressed by this Court in P.C. Purushothama Reddiar v. S.
Perumal3 . 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: (SCC p. 15,
para 19)
“19. Before leaving this case it is necessary to refer to one of the contentions
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 — see Bhagat Ram v. Khetu Ram4 .”
23. Since documents Exts. A-30 and A-34 were admitted in evidence without any
objection, the High Court erred in holding that these documents were inadmissible
being photocopies, the originals of which were not produced.
24. 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. Maybe, 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 as such was done. The High Court has not even
doubted the factum of the contents of the document having been read by the
Page: 766
63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
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.
25. Exhibit A-34 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 the Charity
Commissioner to be not the owner of the property. Consequence of this would be that
the attornment by the tenant in favour of the temple during the continuance of
tenancy in favour of the appellant was not valid. Defendant 2 had attorned as a tenant
to the temple treating the latter to be the owner which it could not do as he was
inducted as a tenant by the appellant and the estoppel flowing from Section 116 of the
Evidence Act operated against him.
26. From the other documents produced by the appellant i.e. the account books
and Exhibit A-34 rent note, it is proved that the tenant had always been treating the
appellant as the landlord and paying rent to him. Only after 1969 the 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. The temple has not been able to produce any evidence, oral or
documentary, to prove its title to the property. Only because the 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 him 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 as well as the
arrears of rent.
Page: 767
27. The High Court has, for the purpose of non-suiting the plaintiff, placed reliance
on Brahma Nand Puri v. Neki Puri5 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
63.
on the -----------------------------------------------------------------------------------------------------------------------------------------------------------
strength of his title his 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.
28. 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 the 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, § 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 Edn., pp. 58-59.)
In the words of Denning, L.J. (Bater v. Bater6 , All ER at p. 459 B-C):
It is true that by our law there is a higher standard of proof in criminal cases
than 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, L.J. said:
“Just as in civil cases the balance of probability may be more readily tilted 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 Products
Ltd.7 , All ER at p. 977 D).
Page: 768
29. In a suit for recovery of possession based on title it is for the plaintiff to prove
his title and satisfy the court that he, in law, is entitled to dispossess the defendant
from his possession over the suit property and for the possession to be restored to
him. However, as held in A. Raghavamma v. A. Chenchamma8 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.
30. 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
63.
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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 prove 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
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 oral and
documentary evidence which the High Court ought not to have done.
31. 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 a trustee
while the property adjoining to the property of the temple i.e. the suit property, was in
possession of the plaintiff as the owner occupied by the tenant, Defendant 2, inducted
as such by the father of the plaintiff. At the instance of the Chief Executive Officer of
the trust, Defendant 2, during the continuance of the tenancy in favour of the plaintiff,
executed a rent note in
Page: 769
favour of the temple attorning the latter as his landlord. This Defendant 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 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.
32. The learned counsel for the temple, defendant-Respondent 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 Defendant 2.
33. 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 by the High Court
in exercise of its second appellate jurisdiction under Section 100 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 reappreciating 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
63.
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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.
34. 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.
———
† From the Judgment and Order dated 12-4-1996 of the Madras High Court in SA No. 316 of 1983
1
AIR 1966 SC 1457
2 AIR 1915 PC 111 : 19 CWN 929
3 (1972) 1 SCC 9 : (1972) 2 SCR 646
4
AIR 1929 PC 110
5 AIR 1965 SC 1506
6 (1950) 2 All ER 458 : 1951 P 35 (CA)
7
(1956) 3 All ER 970 : (1957) 1 QB 247 : (1956) 3 WLR 1034 (CA)
8 AIR 1964 SC 136
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Page 1 Monday, January 15, 2024

(2003) 8 Supreme Court Cases 752 : 2003 SCC OnLine SC 1117

(BEFORE R.C. LAHOTI AND ASHOK BHAN, JJ.)

R.V.E. VENKATACHALA GOUNDER . . Appellant;

Advocates who appeared in this case:

Chronological list of cases cited on page(s)

1. (1972) 1 SCC 9 : (1972) 2 SCR 646, P.C. Purushothama

3. AIR 1965 SC 1506, Brahma Nand Puri v. Neki Puri 767a

4. AIR 1964 SC 136, A. Raghavamma v. A. Chenchamma 768a-b

5. (1956) 3 All ER 970 : (1957) 1 QB 247 : (1956) 3 WLR 1034

6. (1950) 2 All ER 458 : 1951 P 35 (CA), Bater v. Bater 767f

7. AIR 1929 PC 110, Bhagat Ram v. Khetu Ram 765e

8. AIR 1915 PC 111 : 19 CWN 929, Padman v. Hanwanta 765a

The Judgment of the Court was delivered by

8. Learned counsel for the parties have been heard at length.

25. Exhibit A-34 is a decision of the Deputy Commissioner in exercise of his

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