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CASE NO.: Appeal (civil)  10585 of 1996

PETITIONER: R.V.E. Venkatachala Gounder                                      

RESPONDENT: Arulmigu Viswesaraswami & V.P. Temple & AR               

DATE OF JUDGMENT: 08/10/2003

BENCH: R.C. Lahoti & [Ashok Bhan.

JUDGMENT: J U D G M E N T

BHAN, J.

       Present appeal has been filed against the judgment and decree in  Second Appeal No. 316 of 1983 dated 12.4.1996 by the High Court of  Judicature at Madras.  By the impugned order the High Court has set aside  the judgment and decree of the courts below as a result of which the suit  filed by the plaintiff-appellant (hereinafter referred to as ’the appellant’) has  been ordered to be dismissed.  

       A brief reference to the pleadings of the parties may be made to  appreciate the points raised in this appeal.

       Appellant claimed himself to be the owner of the property bearing No.  D.No. 40 comprised in T.S.No. 201, Block No. 4, Ward No. 5 in the  Municipal City of Tirupur.  That M.R. Arunachala Mudaliar, defendant No.  2 (hereinafter referred to as the ’tenant’)  was inducted as a tenant in the year  1952 by his father at a rent of Rs. 300/- which was enhanced to Rs. 400/- in  the year 1965. Arulmigu Visweswaraswamy & Veeraragava Perumal  Temples, defendant No.1 (hereinafter referred to as the ’temple’) also claim  ownership to the property.  Appellant claimed himself to be a hereditary  trustee of the temple.  Originally, from 1946-47 till 1959, the property stood  recorded in the municipal register in the name of three persons, namely,  K.N. Palanisami Gounder, R.V. Easwaramurthi Gounder and A.  Narayaanaswami Gounder.  Easwaramurthi Gounder was the father of the  appellant.  After the death of Easwaramurthi Gounder, father of the  appellant, the name of the appellant came to be registered in the Municipal  record alongwith the other two persons.  In an oral family partition the  property came to the share of the appellant and thereafter the names of K.N.  Palanisami Gounder and A. Narayaanaswami Gounder were removed from  the municipal register and the appellant alone came to be recorded as the  sole owner of the suit property in the municipal record.  That temple taking  advantage of the litigation pending between it and the appellant in respect of  the trusteeship of the temple, laid claim to the suit property.  Tenant paid  rent till 1969 to the appellant and thereafter attorned as a tenant to temple  and started paying rent to it.  Appellant filed the suit for declaration of title,  arrears of rent for three years immediately preceding the filing of the suit  and possession of the suit premises.   

The temple-defendant No.1, in its written statement, admitted that the  father of the appellant and after his death the appellant has been a trustee of  the temple.  In 1968 new set of trustees were appointed by the Charity  Commissioner and the Executive Officer took charge of the temple.  The  temple further alleged that the suit property belonged to the temple and the  appellant wrongly claimed himself to be  the absolute owner of the property.   The assessment stood in the name of the appellant as Dharmakartha and not

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in his individual capacity.  From 1969 onwards, tenant began to pay rent to  temple and the rate of rent was enhanced from Rs. 42.50 to Rs. 129/- per  month. On 19th July, 1975 the tenant executed a lease deed in favour of the  temple.  That appellant was not entitled to the suit property and was  estopped from denying the title of temple.  The tenant-defendant No.2, in his  written statement, took the stand that he became the tenant of the suit  property under the temple.  He admitted that he had been paying rent to the  appellant but from the year 1969 onward he started paying rent to the  temple.  That the claim of the appellant for arrears of rent was not tenable  and the suit for declaration and for arrears of rent was not maintainable.     

On the pleadings of the parties the Trial Court framed three issues,  viz.,  (i) relating to the title of the suit property; (ii) entitlement of the  appellant to receive rent, and (iii) entitlement of the appellant to get  possession.

       By way of oral evidence appellant stepped in the witness box as PW  1.  On behalf of the temple, Rajapandian, an employee of the temple,  stepped in the witness box as DW1 and the tenant appeared as his own  witness as DW2. By way of documentary evidence appellant produced  Exhibit A1 to Exhibit A34 consisting of books of accounts; copies of the  municipal registers; receipts of payment of property tax paid in the  municipal committee; documents showing collection of rent;  Exhibit A-30  dated 14.10.1969 is the order of the Assistant Commissioner, H.R. and C.E.  Administration Department, Coimbatore in which it has been held that the  suit property does not belong to the temple.  Exhibit A-34 dated 6.7.1970 is  a rent agreement executed between the appellant and tenant in respect  of the  suit property. Documents A-30 and A-34 are the photostat copies of the  original; they were admitted in evidence and marked as exhibits without any  objection from other side.  Temple produced Exhibits B1 to B46 pertaining  to receipt of rent from the tenant and payment of property tax to the  Municipal Committee after the year 1969.  

       Trial Court relying upon the oral as well as documentary evidence  held that the appellant was the owner of the property and that respondent no.  2 was the tenant of the appellant.  Appellant was held to be the owner and  entitled to recover the possession as well as the arrears of rent for three years  immediately preceding the filing of the suit. Temple filed an appeal before  the District Judge, Coimbatore which was dismissed.  Aggrieved temple  filed the second appeal in the High Court.  High Court reversed the  judgment and decree of the courts below and held that no reliance could be  placed upon the documentary evidence. The books of accounts produced by  the appellant were not kept in regular course of business and therefore no  reliance could be placed on them.  Entry made of property in the municipal  records in the name of a person was not evidence of the title of that person to  the property.  That the courts below erred in admitting Exhibit A-30 and A- 34 in evidence as these were photostat copies.  Documents being photostat  copies could not be admitted in evidence without producing the originals.   That Exhibit A-34 was not even readable.

       Learned Counsel for the parties have been heard at length.   

       While entertaining the second appeal the High Court framed the  following three questions as substantial questions of law as arising for its  consideration:

"1.  Whether a person who has been in possession  of the temple as an hereditary trustee can claim  title to one of the items of the property belonging  to the temple as his own?

2. Whether the certificate issued by the Assistant  Commissioner, Hindu Religious and Charitable  Endowments is conclusive as the question of title

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to the immovable properties belonging to the  temple?

3.   Whether the right of a temple can be negatived  on the mere strength of the assessment register  standing in the name of the plaintiff/Respondent or  any other person?"

                                                    [Emphasis supplied]

       All the three questions framed proceed on the assumption as if the  property belongs to the temple whereas the findings of the courts below  were to the contrary.  Second appeal in the High Court can be entertained  only on substantial questions of law and not otherwise.  The point in issue  was as to whom the property belongs. Instead of proceeding to decide the  issues arising in the suit the High Court assumed second appellate  jurisdiction by erroneously assuming the fact that property belongs to the  temple while framing the substantial questions of law.  High Court seems to  have unwitting fallen into a serious error in doing so. As to whether the  appellant or the temple had the title to the property in suit was the question  to be determined in  the case and the High Court erred in assuming and  proceeding on an assumption that the property belonged to the temple.  The  questions framed by the High Court did not arise as substantial questions of  law based on the findings recorded by the courts below â\200\223 concurrently in this  case.  In our opinion, the High Courts’ judgment deserves to be set aside on  this short ground and the case remitted back to the High Court for decision  afresh and in accordance with the law, after re-framing only such substantial  questions of law, if any, as do arise in the appeal.  But since the suit was  filed in the year 1978 and the parties have been in litigation for the last 25  years, we are refraining from remitting the case back to the High Court for  re-decision on merits.

       Onus to prove title of the property undoubtedly is on the person  asserting title to the property.  Appellant produced Ledger Books A9, A11,  A13, A15, A17, A19, A21, A23, A25 & A27 for the years 1952, 1953, 1954,  1955, 1957, 1958, 1959, 1960, 1962 & 1964 respectively maintained by the  father of the appellant up to 1959 and thereafter by him.  Exhibits A10, A12,  A14, A16, A18, A20, A22, A24, A26 & A28 are the entries of receipt of rent  from tenant made at pages 155, 81, 57, 92, 115, 137, 180, 16, 171 and 139 of   Ledger Books marked A9, A11, A13, A15, A17, A19, A21, A23, A25 &  A27 respectively.  In his statement in court, appellant stated that the ledgers  were maintained properly and were submitted to the income tax authorities.   The Ledger Books bear the seal of the department of income tax.  That the  books were maintained by his father till 1959 and after his death the  appellant has maintained the Ledgers.  Courts below accepted that the books  were maintained in regular course of business but the High Court ruled out  the ledger accounts from consideration on the ground that day books  supporting the ledger entries were not produced.  That the person who made  the entries in the ledger books was not produced which caused a doubt as to  whether the books were kept in due course or not.  We do not agree with the  finding recorded by the High Court.  On a perusal of the statement of the  appellant and the books of accounts it becomes abundantly clear that the  accounts were duly maintained by the father of the appellant till 1959 and  thereafter by the appellant for every year separately and were submitted to  the department of income tax with annual returns. The books bear the seal of  the income tax department.  These facts deposed to by the appellant under  oath were not even challenged in cross-examination.   No question was  asked from the appellant to the effect that the books were not maintained by  him or by his father properly.  No questions were asked from him in cross- examination about the authenticity of the books or the entries made therein.   In the ledger, for each year, there is an entry regarding receipt of rent.  In our  view, the books were maintained properly and regularly and there is no  reason to doubt their veracity.   

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       Section 34 of the Evidence Act declares relevant the entries in books  of account regularly kept in the course of business whenever they refer to a  matter into which the court has to enquire.  When such entries are shown to  have been made in the hands of a maker who is dead, the applicability of  clause (2) of Section 32 of the Evidence Act is attracted according to which  the statement made by a dead person in the ordinary course of business and  in particular when it consists of any entry or memorandum made by him in  books kept in the ordinary course of business etc. is by itself relevant.  The  maker of the entry is not obviously available to depose incorporation of the  entry.  In a given case, depending on the facts and circumstances brought on  record, the Court of facts may still refuse to act on the entry in the absence  of some corroboration.  In the present case the courts of fact, subordinate to  High Court, have not felt the need of any further corroboration before acting  upon the entries in the ledger books made by the deceased father of the  appellant.  So far as the entries made by the appellant are concerned, he has  deposed to making of the entries and corroborated the same by his own  statement.  The appellant has been believed by the trial Court and the first  appellate Court and his statement has been found to be enough corroboration  of the entries made by him. Here again no such question of law arose as  would enable the High Court to reverse that finding.  The entries amply  prove that for a length of time, upto the year 1959 the appellant’s deceased  father, and then the appellant, was collecting the rent of the suit property  claiming to be the landlord from the defendant No.2 inducted as tenant by  them.  They were in possession of the property through their tenant, the  defendant No.2.

       We are definitely of the opinion that the High Court has erred in  ruling out the books from consideration on the ground that the same were  not duly maintained or were not proved in the absence of the maker having  stepped in the witness box.

       A2 is the extract of Property Tax Demand Register.  A3 is the receipt  of payment of property tax by the appellant to the Municipal Committee.   The name of the appellant is entered in ownership column of Municipal  record.  Earlier the entries were in the name of his father, K.N.Palanisami  Gounder and A.Narayaanaswami Gounder.  A31 is the letter/notice issued  by the Commissioner, Tirupur Municipality  to the appellant in the  complaint filed by one Subramaniam Tirupur under The Tamil Nadu Hindu  Religious and Charitable Endowments Act, 1959 (hereinafter referred to as  ’the Act’).  A32 is the reply filed by the appellant to the said notice.  A33 is  the postal acknowledgement signed by the Commissioner of the receipt of  the reply sent by the appellant.  A30 is the photo copy of the order passed by  Assistant Commissioner H.R. and C.E.(Admn.) Department, Coimbatore in  exercise of its jurisdiction under Section 63 of the Act in which it has been  held that temple is not the owner of the property in dispute.  A34 is the photo  copy of the rent agreement executed between the appellant and the tenant- respondent No.2. The said rent note has also been attested as witness by the  Executive Officer of the Municipal Committee. Tenant while appearing as  DW2 admitted having signed rent note, Exhibit A34 in favour of the  appellant.

       The High Court has, by entering into the question of admissibility in  evidence of the abovesaid two very material pieces of documentary evidence  which were admitted in evidence without any objection when they were  tendered in evidence and taken into consideration by the two courts below  while evaluating evidence and recording findings of facts, excluded the  documents from consideration. Was it permissible for the High Court to do  so?

       One document A/30 is the photocopy of a certified copy of the  decision given by Charity Commissioner.  This document was tendered in  evidence and marked as an exhibit without any objection by the defendants  when this was done.  The plaintiff has in his statement deposed and made it  clear that the certified copy, though available, was placed on the record of  another legal proceedings and, therefore, in the present proceedings he was

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tendering the photocopy.  There is no challenge to this part of the statement  of the plaintiff.  If only the tendering of the photocopy would have been  objected to by the defendant, the plaintiff would have then and there sought  for the leave of the Court either for tendering in evidence a certified copy  freshly obtained or else would have summoned the record of the other legal  proceedings with the certified copy available on record for the perusal of the  Court.   It is not disputed that the order of Charity Commissioner is a public  document admissible in evidence without formal proof and certified copy of  the document is admissible in evidence for the purpose of proving the  existence and contents of the original.   An order of Charity Commissioner is  not per se the evidence of title inasmuch as the Charity Commissioner is not  under the law competent to adjudicate upon questions of title relating to  immovable property which determination lies within the domain of a Civil  Court.  However, still the order has relevance as evidence to show that the  property forming subject matter of the order of the Charity Commissioner  was claimed by the temple to be its property but the temple failed in proving  its claim.  If only the claimant temple would have succeeded, the item of the  property would have been directed by the Charity Commissioner to be  entered into records as property of the charity, i.e. the temple, which finding  and the entry so made, unless dislodged, would have achieved a finality.  On  the contrary, the appellant herein, who claimed the property to be his and not  belonging to the charity, succeeded in the claim asserted by him.

       The other document is the rent note executed by defendant No.2 in  favour of plaintiff.  Here also photocopy of the rent note was produced.  The  defendant No.2 when in witness box was confronted with this document and  he admitted to have executed this document in favour of the plaintiff and  also admitted the existence of his signature on the document.  It is nobody’s  case that the original rent note was not admissible in evidence.  However,  secondary evidence was allowed to be adduced without any objection and  even in the absence of a foundation for admitting secondary evidence having  been laid by the plaintiff.

       The abovesaid facts have been stated by us in somewhat such details  as would have been otherwise unnecessary, only for the purpose of  demonstrating that the objection raised by the defendant-appellant before the  High Court related not to the admissibility of the documentary evidence but  to the mode and method of proof thereof.

       Order 13 Rule 4 of the CPC provides for every document admitted in  evidence in the suit being endorsed by or on behalf of the Court, which  endorsement signed or initialed by the Judge amounts to admission of the  document in evidence.  An objection to the admissibility of the document  should be raised before such endorsement is made and the Court is obliged  to form its opinion on the question of admissibility and express the same on  which opinion would depend the document being endorsed as admitted or  not admitted in evidence.  In the latter case, the document may be returned  by the Court to the person from whose custody it was produced.

       The learned counsel for the defendant-respondent has relied on The  Roman Catholic Mission Vs. The State of Madras & Anr. AIR 1966 SC  1457 in support of his submission that a document not admissible in  evidence, though brought on record, has to be excluded from consideration.   We do not have any dispute with the proposition of law so laid down in the  abovesaid case.  However, the present one is a case which calls for the  correct position of law being made precise.  Ordinarily an objection to the  admissibility of evidence should be taken when it is tendered and not  subsequently.  The objections as to admissibility of documents in evidence  may be classified into two classes:- (i) an objection that the document which  is sought to be proved is itself inadmissible in evidence; and (ii) where the  objection does not dispute the admissibility of the document in evidence but  is directed towards the mode of proof alleging the same to be irregular or  insufficient.  In the first case, merely because a document has been marked  as ’an exhibit’, an objection as to its admissibility is not excluded and is  available to be raised even at a later stage or even in appeal or revision.  In

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the latter case, the objection should be taken before the evidence is tendered  and once the document has been admitted in evidence and marked as an  exhibit, the objection that it should not have been admitted in evidence or  that the mode adopted for proving the document is irregular cannot be  allowed to be raised at any stage subsequent to the marking of the document  as an exhibit.  The later proposition is a rule of fair play.  The crucial test is  whether an objection, if taken at the appropriate point of time, would have  enabled the party tendering the evidence to cure the defect and resort to such  mode of proof as would be regular.  The omission to object becomes fatal  because by his failure the party entitled to object allows the party tendering  the evidence to act on an assumption that the opposite party is not serious  about the mode of proof.  On the other hand, a prompt objection does not  prejudice the party tendering the evidence, for two reasons: firstly, it enables  the Court to apply its mind and pronounce its decision on the question of  admissibility then and there; and secondly, in the event of finding of the  Court on the mode of proof sought to be adopted going against the party  tendering the evidence, the opportunity of seeking indulgence of the Court  for permitting a regular mode or method of proof and thereby removing the  objection raised by the opposite party, is available to the party leading the  evidence.  Such practice and procedure is fair to both the parties. Out of the  two types of objections, referred to hereinabove, in the later case, failure to  raise a prompt and timely objection amounts to waiver of the necessity for  insisting on formal proof of a document, the document itself which is sought  to be proved being admissible in evidence.  In the first case, acquiescence  would be no bar to raising the objection in  superior Court.

Privy Council in Padman and Others vs. Hanwanta and Others [AIR  1915 PC 111] did not permit the appellant to take objection to the  admissibility of a registered copy of a will in appeal for the first time.  It was  held that this objection should have been taken in the trial court.  It was  observed: "The defendants have now appeal to the Majesty in  Council, and the case has been argued on their  behalf in great detail.  It was urged in the course of  the argument that a registered copy of the will of  1898 was admitted in evidence without sufficient  foundation being led for its admission.  No  objection, however, appears to have been taken in  the first court against the copy obtained from the  Registrar’s office being put in evidence.  Had such  objection being made at the time, the District  Judge, who tried the case  in the first instance,  would probably have seen that the deficiency was  supplied.  Their lordships think that there is  no  substance in the present contention."  

Similar is the view expressed by this Court in P.C.Purushothama  Reddiar vs. S.Perumal [1972 (2) SCR 646].  In this case the police reports  were admitted in evidence without any objection and the objection was  sought to be taken in appeal regarding the admissibility of the reports.   Rejecting the contention it was observed: "Before leaving this case it is necessary to refer to  one of the contention taken by Mr. Ramamurthi,  learned counsel for the respondent.  He contended  that the police reports referred to earlier are  inadmissible in evidence as the Head-constables  who covered those meetings have not been  examined in the case.  Those reports were marked  without any objection.  Hence it is not open to the  respondent now to object to their admissibility â\200\223  see Bhagat Ram V. Khetu Ram and Anr. [AIR  1929 PC 110]."  Since documents A30 and A34 were admitted in evidence  without  any objection, the High Court erred in holding that these documents were  inadmissible being photo copies, the originals of which were not produced.

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So is the observation of the High Court that the photocopy of the rent  note was not readable.  The photocopy was admitted in evidence, as already  stated.  It was read by the trial court as also by the first Appellate Court.   None of the said two courts appear to have felt any difficulty in reading the  document and understanding and appreciating its contents.  May be, that the  copy had fainted by the time the matter came up for hearing before the High  Court.  The High Court if it felt any difficulty in comfortable reading of the  document then should have said so at the time of hearing and afforded the  parties an opportunity of either producing the original or a readable copy of  the document.  Nothing such was done.  The High Court has not even  doubted the factum of the contents of the document having been read by the  two courts below, drawn deductions therefrom and based their finding of  fact on this document as well.  All that the High Court has said is that the  document was inadmissible in evidence being a photocopy and with that  view we have already expressed our disagreement.  Nothing, therefore, turns  on the observation of the High Court that the document was not readable  when the matter came up for hearing before it.

       Exhibit A34 is a decision of the Deputy Commissioner in exercise of  his jurisdiction under the Act. He has recorded a finding that the temple is  not the owner of the property in dispute.  This decision has become final  between the parties.  This document  has relevance at least to the extent that  the temple was held by Charity Commissioner to be not the owner of the  property.  Consequence of this would be that the attornment by the tenant in  favour of temple during the continuance of tenancy in favour of the  appellant was not valid.  The defendant No.2 had attorned as a tenant to  temple treating the latter to be the owner which it could not do as he was  inducted as tenant by the appellant and the estoppel flowing from Section  116 of the Evidence Act operated against him.  

       From the other documents produced by the appellant i.e. the account  books and Exhibit A34 rent note, it is proved that tenant had always been  treating the appellant as landlord and paying rent to him.  Only after 1969  tenant started paying rent to the temple treating it to be the landlord.  In the  property tax register the appellant and prior to that his predecessors have  been shown to be the owners.  An entry in the municipal record is not  evidence of title.  The entry shows the person who was held liable to pay the  rates and taxes to the municipality.  The entry may also, depending on the  scope of the provision contemplating such entry, constitute evidence of the  person recorded being in possession of the property.  Such entries spread  over a number of years go to show that the person entered into the records  was paying the tax relating to the property and was being acknowledged by  the local authority as the person liable to pay the taxes. If the property  belonged to the temple, there is no reason why the temple would not have  taken steps for having its own name mutated into the municipal records and  commencing payment of taxes or claimed exemption from payment of taxes  if the charity was entitled under the law to exemption from payment of  taxes.  Temple has not been able to produce any evidence oral or  documentary to prove its title to the property.   Only because tenant attorned  to the temple and started paying rent to the temple in 1969 or that the temple  paid the property tax to the municipal committee after 1969 does not  establish its title to the property in question.  These documents are not of  much evidentiary value as these documents came in existence after the  dispute had arisen between the parties.  In the absence of any other lawful  claimant the appellant on the strength of the documents produced by was  rightly held to be the owner by the Courts below the High Court.   Attornment by the tenant in favour of the temple was also rightly held to be  invalid.  The appellant, in our opinion, would be entitled to recover  possession well as the arrears of rent.   The High Court has, for the purpose of non-suiting the plaintiff,  placed reliance on Brahma Nand Puri Vs. Neki Pur since deceased  represented by Mathra Puri & Anr., AIR 1965 SC 1506, wherein it has  been held that in a suit for ejectment the plaintiff has to succeed or fail on  the title he establishes and if he cannot succeed on the strength of his title his

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suit must fail notwithstanding that the defendant in possession has no title to  the property.  The law has been correctly stated and the High Court rightly  felt bound to follow the law as laid down by this Court.  However, the  question is one of applicability of the law so stated by this Court.

       Whether a civil or a criminal case, the anvil for testing of ’proved’,  ’disproved’ and ’not proved’, as defined in Section 3 of the Indian Evidence  Act, 1872 is one and the same.  A fact is said to be ’proved’ when, if  considering the matters before it, the Court either believes it to exist, or  considers its existence so probable that a prudent man ought, under the  circumstances of a particular case, to act upon the supposition that it exists.   It is the evaluation of the result drawn by applicability of the rule, which  makes the difference.  "The probative effects of evidence in civil and  criminal cases are not however always the same and it has been laid down  that a fact may be regarded as proved for purposes of a civil suit, though the  evidence may not be considered sufficient for a conviction in a criminal  case.  BEST says : There is a strong and marked difference as to the effect of  evidence in civil and criminal proceedings.  In the former a mere  preponderance of probability, due regard being had to the burden of proof, is  a sufficient basis of decision: but in the latter, especially when the offence  charged amounts to treason or felony, a much higher degree of assurance is  required. (BEST, S. 95).  While civil cases may be proved by a mere  preponderance of evidence, in criminal cases the prosecution must prove the  charge beyond reasonable doubt." (See Sarkar on Evidence, 15th Edition,  pp.58-59)  In the words of Denning LJ (Bater Vs. B, 1950, 2 All ER  458,459) "It is true that by our law there is a higher standard of proof in  criminal cases then in civil cases, but this is subject to the qualification that  there is no absolute standard in either case.  In criminal cases the charge  must be proved beyond reasonable doubt, but there may be degrees of proof  within that standard.  So also in civil cases there may be degrees of  probability."   Agreeing with this statement of law, Hodson, LJ said "Just as  in civil cases the balance of probability may be more readily fitted in one  case than in another, so in criminal cases proof beyond reasonable doubt  may more readily be attained in some cases than in others." (Hornal V.  Neuberger P. Ltd., 1956 3 All ER 970, 977).

       In a suit for recovery of possession based on title it is for the plaintiff  to prove his title and satisfy the Court that he, in law, is entitled to  dispossess the defendant from his possession over the suit property and for  the possession to be restored with him.  However, as held in A.  Raghavamma & Anr. Vs. Chenchamma & Anr., AIR 1964 SC 136, there is  an essential distinction between burden of proof and onus of proof: burden  of proof lies upon a person who has to prove the fact and which never shifts.   Onus of proof shifts.  Such a shifting of onus is a continuous process in the  evaluation of evidence.  In our opinion, in a suit for possession based on title  once the plaintiff has been able to create a high degree of probability so as to  shift the onus on the defendant it is for the defendant to discharge his onus  and in the absence thereof the burden of proof lying on the plaintiff shall be  held to have been discharged so as to amount to proof of the plaintiff’s title.

       In the present case, the trial Court and the first appellate Court have  noted that the plaintiff has not been able to produce any deed of title directly  lending support to his claim for title and at the same time the defendant too  has no proof of his title much less even an insignia of title.  Being a civil  case, the plaintiff cannot be expected to proof his title beyond any  reasonable doubt; a high degree of probability lending assurance of the  availability of title with him would be enough to shift the onus on the  defendant and if the defendant does not succeed in shifting back the onus,  the plaintiff’s burden of proof can safely be deemed to have been  discharged.  In the opinion of the two Courts below, the plaintiff had  succeeded in shifting the onus on the defendant and, therefore, the burden of  proof which lay on the plaintiff had stood discharged.  The High Court, in  exercise of its limited jurisdiction under Section 100 of CPC, ought not to  have entered into the evaluation of evidence afresh.  The High Court has  interfered with a pure and simple finding of fact based on appreciation of

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oral and documentary evidence which the High Court ought not to have  done.

       The suit property, which is a shop, is situated just adjoining the  property owned by the temple.  It has come in the evidence that the property  which is now owned by the temple was at one time owned by the forefathers  of the plaintiff and they made an endowment in favour of the temple.  The  father of the plaintiff, and then the plaintiff, continued to be the trustees.   The trouble erupted when in the late sixties the Charity Commissioner  appointed other trustees and Chief Executive Officer of the trust dislodging  the plaintiff from trusteeship.  The plaintiff staked his claim to trusteeship of  the temple submitting that the office of the trustee of the temple was  hereditary and belonged to the plaintiff.  The plaintiff was managing the  trust property as trustee while the property adjoining to the property of the  temple, i.e. the suit property, was in possession of the plaintiff as owner  occupied by the tenant, the defendant No.2., inducted as such by the father  of the plaintiff.  At the instance of the Chief Executive Officer of the trust,  the defendant No.2, during the continuance of the tenancy in favour of the  plaintiff, executed a rent note in favour of the temple attorning the latter as  his landlord.  This the defendant no.2 could not have done in view of the rule  of estoppel as contained in Section 116 of the Evidence Act.  It was at the  instance of the newly appointed trustees and the Chief Executive Officer  who on behalf of the temple started claiming the suit property in occupation  of the tenant, defendant No.2, to be trust property belonging to the temple.   But for this subsequent development the title of the plaintiff to the suit  property would not have been in jeopardy and there would have been no  occasion to file the present suit.

       The learned counsel for the temple, defendant-respondent No.1,  faintly urged that the appellant being a trustee of the temple was trying to  misappropriate the property belonging to the temple.  For such an  insinuation there is neither any averment in the written statement nor any  evidence laid.  Such a submission made during the course of hearing has  been noted by us only to be summarily rejected.  We have already held that  the appellant is the owner of the suit property entitled to its possession and  recovery of arrears of rent from the defendant No.2.

       The offshoot of the above discussion is that no question of law much  less a substantial question of law arose in the case worth being gone into the  by the High Court in exercise of its second appellate jurisdiction under  Section 100 of the CPC.  The High Court was bound by the findings of fact  arrived at by the two courts below and should not have entered into the  exercise of re-appreciating and  evaluating the evidence.  The findings of  facts arrived at by the courts below did not suffer from any perversity. There  was no non-reading or misreading of the evidence.  A high degree of  preponderance of probability proving title to the suit property was raised in  favour of the appellant and the courts below rightly concluded the burden of  proof raised on the plaintiff having been discharged while the onus shifting  on the defendant remaining undischarged.  The judgment of the High Court  cannot be sustained and has to be set aside.

       For the reasons stated above, the appeal is accepted.  Judgment and  decree of the High Court is set aside and that of the trial court as confirmed  by the first appellate Court is restored. No costs.