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PETITIONER: GOPAL, KRISHNAJI KETKAR

       Vs.

RESPONDENT: MAHOMED HAJI LATIF & ORS.

DATE OF JUDGMENT: 19/04/1968

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SHAH, J.C. MITTER, G.K.

CITATION:  1968 AIR 1413            1968 SCR  (3) 862

ACT: Evidence--Important documentary evidence withheld--Technical plea of onus of proof cannot prevent adverse inference.

HEADNOTE: The  appellant  claimed  before the  authorities  under  the Bombay  Public Trusts Act, 1950, inter alia, that a  certain plot  of land belonged to him and not to the Trust of  which he was Manager.  The High Court when the matter went  before it held that the plot belonged to the Trust.In  appeal   by certificate to this Court,      HELD  : On the evidence the, plot in question  must  be held  to  be the property of the Trust. The failure  of  the appellant to produce the account books admitted to be in his possession  from which it could be seen how the income  from the  plot was dealt with would justify an adverse  inference against him. [865 E, 866 E, 867 E] Even  if  the burden of proof does not lie on  a  party  the court  may  draw  an  adverse  inference  if  he   withholds important documents in his possession which can throw  light on the facts in issue.  It is not a sound practice for those desiring to rely upon a certain state of affairs to withhold from  the  court  the  best  evidence  which  is  in   their possession  which  could  throw light  upon  the  issues  in controversy  and to rely upon the abstract doctrine of  onus of proof. [866 F] Murugesam Pillai v. Manickavasaka Pandara, 44 I.A. 98, Biltu Ram & Ors. v. Jainandan Prasad & Ors.  C.A. No. 941 of  1965 dt.  15-4-68 and Bilas Kunwar v. Desraj Ranjit Singh &  Ors. 42 I.A. 202, relied on.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 954 of 1965. Appeal  from the judgment and decree dated March 8, 1963  of the Bombay High Court in First Appeal Nos. 338 and 422 of 1960. H.R.  Gokhale, W. P. Oka, S. W. Oka and Ganpat  Rai,  for the appellant. Danial  Latifi and Hardev Singh, for respondents Nos. 3  and

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4. M. S. K. Sastri and R. H. Dhebar, for respondent No. 5. The Judgment of the Court was delivered by Ramaswami  J. This appeal is brought, by  certificate,  from the  judgment of the, Bombay High Court dated March 8,  1963 in First Appeals Nos. 338 of 1960 and 422 of 1960. On or about April 15, 1952 the appellant made an application to the Deputy Charity Commissioner, Greater Bombay. Region                             863 under s. 18 of the Bombay Public Trusts Act (Bombay Act XXIX of   1950),  hereinafter  referred  to  as  the  ’Act’   for registration  of the Peer Haji Malang Dargah near Kalyan  in the Thana District (hereinafter referred to as the ’Dargah ) without prejudice to his contention that the Dargah was  not a  public trust to which the Act was applicable.  On  August 3,  1953  the  Deputy Charity  Commissioner  made  an  order declaring  that the Dargah was a public trust  and  directed its  registration as such.  The Deputy Charity  Commissioner further held that among the properties of the Dargah was the land bearingSurvey  No. 134 of village Wadi on a  portion of   which  the  Dargah  is  located.   The  Deputy  Charity Commissioner alsodirected  that  the  appropriate   court might be moved for framing a scheme and appointing Trustees. The   appellant   preferred  an  appeal   to   the   Charity Commissioner,  Bombay  under s. 70 of the  Act  against  the order  of the Deputy Charity Commissioner.  The  appeal  was registered  as Appeal No. 66 of 1953.  Under orders  of  the Government  the  appeal  was heard  by  the  Deputy  Charity Commissioner,  Ahmedabad invested for that purpose with  the powers  of  the Charity Commissioner.  By  his  order  dated September  11,  1954,  the  said  Deputy  Commissioner  with appellate  powers dismissed the appeal.  Feeling  aggrieved, the appellant filed an application under s. 72 of the Act in the  Court  of the District Judge, Thana to  set  aside  the order  of  the Deputy Charity  Commissioner  with  appellate powers,  contending that the Dargah was not a public  trust, that  Survey No. 134 was not the property of the  Trust  and that   the   appellant  was  a  hereditary   Trustee.    The application was opposed by respondents Nos.  1 to 4 who  had intervened during the proceedings before the Deputy  Charity Commissioner and by the Charity Commissioner, respondent No. 5   who  was  also  impleaded  by  the  appellant  in   that application.  The respondent contended that the Dargah was a public trust and the land bearing Survey No. 134 belonged to the Trust and the appellant was not a Trustee of the Dargah. By  his  judgment dated April 26, 1955 the  District  Judge, Thana  held that the Dargah was a public trust but  he  left the questions as to whether"Survey plot No. 134 belonged  to the Dargah or not and whether the appellant was a trustee or only  a de facto.  Manager of the Dargah, open for  decision in   the   suit  which  had  been  filed  by   the   Charity Commissioner.   Against the order of the District fudge  the Charity  Commissioner  filed an appeal in  the  High  Court, being Appeal No. 501 of 1955.  The appellant also filed  his cross objections.  The said appeal and cross objections were heard  together  and the High Court by  its  judgment  dated November  19,  1958 confirmed the finding  of  the  District Judge about the public nature of the trust and further  held that  the District Judge should have decided whether  Survey plot  No.  134  was the property of the Dargah  or  not  and whether the appellant- 864 was  a  trustee  or a Manager of the trust.   The  case  was therefore  remanded back to the District Judge for  deciding these questions.  Accordingly the District Judge reheard the

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matter and by judgment dated February 29, 1960 held, in  the first  place, that Survey plot No. 134 of village  Wadi  was not the property of the Public Trust Peer Haji Malang  Saheb Dargah and that the appellant was the hereditary trustee  of the Trust, his family being its hereditary trustee.  Against the judgment of the District Judge two appeals were filed in the High Court.  First Appeal No. 338. of 1960 was filed  by respondents  Nos. 3 and 4 and First Appeal No. 422  of  1960 was  filed  by the Charity Commissioner, respondent  No.  5. Both the appeals were heard together by the High Court.   By its  judgment  dated March 8, 1968, the High  Court  allowed both  the appeals.  The High Court confirmed, in  the  first place, the finding of the District Judge that the management of the Dargah has been in the family of the appellant.  With regard  to  ownership of Survey plot No. 134  on  which  the Dargah  is situated, the High Court held that the  appellant was not the owner of that plot but that it was the  property of the Dargah. The main question presented for determination in this appeal is whether the land comprised in Survey plot No. 134 was the property  of  the  Dargah  or whether  it  belonged  to  the appellant. It  is  necessary at this stage to set out  the  origin  and history of the Dargah.  The Dargah has been in existence for over  about 700 years.  Its origin is lost in antiquity  but the  Gazetteer  of the Bombay Presidency tells us  that  the tomb is that of a Muslim saint who came to India as an  Arab missionary   in  the  thirteenth  century.    According   to tradition, there are two tombs in the Dargah in one of which is  the dead-body of a Hindu princess and in the other  tomb the  dead-body of the Muslim saint.  The fame of  the  saint was  at  height when the English made  their  appearance  at Kalyan  in 1780.  As they only stayed for two  years,  their departure in the year 1782 was ascribed to the power of  the dead  saint.  The Peshwas were then in power in that  region and  after the departure of the English they sent  a  thanks offering  under the charge of one Kashinath Pant  Ketkar,  a Kalyan  Brahmin.  It is said that the offering sent  by  the Peshwas was a pall of cloth of gold trimmed with pearls  and supported  on silver posts.  The tomb was in  disrepair  and Kashinath  started to repair it and according  to  tradition was  miraculously  assisted by the dead saint  who,  without human  aid, quarried and dressed the large blocks  of  stone which now cover the tomb.  It appears that Kashinath was not content to repair the tomb.  He also wanted to manage it and this  led  to  a dispute with Kalyan  Muslims  who  resented Brahmin  management of a Muslim shrine.  Matters came  to  a head in 1817 and the dispute came before the.  Collector who declared that the                             865 dead saint should settle the affair and that the only way of ascertaining  the saint’s wishes was by casting lots.   This was done and three times the lot fell on the  representative of  Kashinath  and  so  the  matter  ended  and  Kashinath’s representative was proclaimed guardian of the tomb. On  behalf of the appellant reference was made to the   Area Book, Ex. 66 of the year 1890.  The entry shows the name  of Laxmibai  widow  of Govind Gopal Ketkar  under  the  heading (name  of  the person).  Exhibit 67 is the  entry  from  the Phalani  Book  for  the  year 1897 and  shows  the  land  as "Kilyacha Dongar" and under the column is shown the name  of Laxmibai  widow of Govind Gopal.  Exhibit 68 is of the  same year from the revision Phalani containing Similar entry with the  map  attached.  In Exhibit 70 the name of  Laxmibai  is shown  as  "Khatedar"  for the year 1906.   In  the  remarks

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column  there is an entry "one built well, one  pakka  built masjid,  one Dargah, one tomb".  Exhibit 71 is an entry  for the year  1915  from Akar Phod Patrak and in the  column  of "Kabjedar"     the  name  of Rukminibai  Hari  appears  with regard to plot 134.Thereafter, in the record of rights  for the  year 1913, Ex. 76, the name of the predecessor  of  the appellant  is shown.  On the basis of these entries  it  was submitted by Mr. Gokhale that the ownership of the plot  was with  the appellant and not with the Dargah.  But there  are important circumstances in this case which indicate that the appellant is not the owner of Survey plot No. 134.  Exhibits 64 and 65 are significant in this connection.  Exhibit 64 is an  entry  from the "Sud" in Marathi for the  year  1858  in connection  with  Survey  plot No.  134  (Revisional  Survey Number).  The original Survey number of this plot was 24 and it was known as "Kilyacha Dongar".  The total area is  shown to  be  249 acres and 24 Gunthas.  It is shown  as  ’Khalsa’ land.   Kharaba  is  shown as 89 acres 24  Gunthas  and  the balance  of  the area is shown as 160 acres.   In  the  last column the name of the cultivator is not mentioned but it is shown as "Khapachi".  It is significant that the name of the Ketkar  family  is absent from this record.   No  convincing reason was furnished on behalf of the appellant to show  why his name was not entered in the "Sud".  It is also important to  notice that the appellant has furnished  no  documentary evidence  to show how his family acquired title to the  land from the earliest time; there is no sanad or grant  produced by  the appellant to show that he had acquired title to  the land.   It further appears that the appellant’s  family  did not  assert any title to the land at the time of the  survey made in 1858; otherwise there is no reason why its name  was not entered in the "Sud" of the year 1858.  It is true  that there  are a number of entries subsequent to the  year  1890 and  1897  in  which  the Ketkar  family  is  shown  as  the "Khatedar" or 866 the occupant but these entries are not of much  significance since  the Ketkar family was in the fiduciary position of  a Manager  of  the Dargah and was lawfully  in  possession  of Survey  plot  134 in that capacity.  There is  also  another important  circumstance that the appellant has no  lands  of his own near plot No. 134 and the nearest lands he owns  are in  Bandhanwadi which are admittedly 3-1/2 to 4  miles  away from  the  top  of the hill.  There is  also  the  important admission  made  by  the  appellant in  the  course  of  his evidence   that   there  are  2  or  3  tombs   behind   the Musaferkhana.  He stated further that "there is no  cemetery or  burial ground in Survey No. 134".  But this evidence  is in  direct conflict with the statement of the  appellant  in the  previous case that "Round about the Dargah many  people die  every year..... Anyone that died there, whether  Hindu, Muslim  or Parsee if he has no heirs is buried  there".   He also  conceded  that  there  is one  public  tank  known  as "Chasmyachi  Vihir"  near the Dargah and there are  5  wells near  the Dargah and five boundary ’Aranas’ about  one  mile from  the Dargah.  Lastly, reference should be made  to  the important  circumstance that the appellant has not  produced the  account  of the Dargah income.  In the  course  of  his evidence  the  appellant admitted that he was  enjoying  the income  of plot No. 134 but he did not produce any  accounts to  substantiate his contention.  He also admitted that  "he had  got  record of the Dargah income and that  account  was kept separately." But the appellant has not produced  either his own accounts or the account of the Dargah to show as  to how  the  income  from plot No. 134  was  dealt  with.   Mr.

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Gokhale,  however, argued that it was no part of the  appel- lant’s  duty  to produce the accounts unless he  was  called upon to do so and the onus was upon the respondents to prove the  case and to show that the Dargah was the owner of  plot No. 134.  We are unable to accept this argument as  correct. Even  if  the burden of proof does not lie on  a  party  the Court  may  draw  an  adverse  inference  if  he   withholds important documents in his possession which can throw  light on  the facts at issue.  It is not, in our opinion, a  sound practice for those desiring to rely upon a certain state  of facts to withhold from the Court the best evidence which  is in their possession which could throw light upon the  issues in  controversy  and to rely upon the abstract  doctrine  of onus  of  proof.   In  Murugesam  Pillai  v.   Manichavasaka Pandara(1) Lord Shaw observed as follows:               "A  practice has grown up in Indian  procedure               of those in possession of important  documents               or  information  lying  by,  trusting  to  the               abstract  doctrine of the onus of  proof,  and               failing,  accordingly,  to  furnish  to,  the,               Courts  the best material for  its  decision..               With regard to               (1)   44 I. A. 98, at P. 103.               867               third  parties, this may be right  enough-they               have no responsibility for the conduct of  the               suit  but  with regard to the parties  to  the               suit  it  is, in their Lordships’  opinion  an               inversion of sound practice for those desiring               to  rely  upon  a certain state  of  facts  to               withhold  from the Court the written  evidence               in  their possession which would  throw  light               upon the proposition."               This  passage was cited with approval by  this               Court  in a recent decision--Biltu Ram &  Ors.               v.  Jainandan Prasad & Ors.(1). In that  case,               reliance   was   placed  on  behalf   of   the               defendants upon the following passage from the               decision  of the Judicial Committee  in  Bilas               Kunwar v. Desrai Ranjit Singh & OrS.(2)               "But it is open to a litigant to refrain  from               producing  any  documents  that  he  considers               irrelevant;   if   the   other   litigant   is               dissatisfied  it  is for him to apply  for  an               affidavit  of  documents  and  he  can  obtain               inspection and production of all that  appears               to  him in such affidavit to be  relevant  and               proper.  If he fails so to do, neither he  nor               the  Court  at his suggestion is  entitled  to               draw  any inference as to the contents of  any               such documents."               But Shah, J., speaking for the Court, stated:               "  The observations of the Judicial  Committee               do  not support the proposition that unless  a               party  is  called upon expressly  to  make  an               affidavit  of  documents  and  inspection  and               production of documents is demanded, the Court               cannot  raise an adverse inference  against  a               party withholding evidence in his  possession.               Such a rule is inconsistent with  illustration               (g) of s. 114 of the Evidence Act, and also an               impressive body of authority." For these reasons we are of the opinion that the High  Court was  right in reaching the conclusion that Survey  plot  No. 134 belonged to the Dargah and must be shown as the property

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belonging  to the Public Trust.  This appeal is  accordingly dismissed with costs.  One hearing fee G.C.                       Appeal dismissed. (1)  Civil Appeal 941 of 1965 decided on April 15, 1968. (2)  42 1. A. 202, at p. 206. 868