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Sec.101,102 of Evidence Act – Sec.100 of C.P.C = Suit for Declaration of title and consequential reliefs = Goa – Portuguese civil code – Suit for declaration & possession & cancellation of document = with out producing any documentary proof in respect of title – no suit be decreed on vague admission -Sec.101,102 – burden of proof & onus of proof – both are distinct – former never changes – later changes from time to time from one shoulder to other’s shoulder – first plaintiff has to prove his title – then only other things will be considered = sec.100 C.P.C. – when decree was passed on erroneous law and fact , high court can interfere in second appeal – High court rightly set aside the decree and judgement of lower courts = Sebastiao Luis Fernandes (Dead) Through Lrs. & Ors. … Appellants Vs. K.V.P. Shastri (Dead) Through Lrs. & Ors. … Respondents = Published in / Cited in /Reported in judis.nic.in/supremecourt/filename=41061

Sec.101,102 of Evidence Act – Sec.100 of C.P.C = Suit for Declaration of title and consequential reliefs = Goa – Portuguese civil code – Suit for declaration & possession & cancellation of document = with out producing any documentary proof in respect of title – no suit be decreed on vague admission -Sec.101,102 – burden of proof & onus of proof  – both are distinct – former never changes – later changes from time to time from one shoulder to other’s shoulder – first plaintiff has to prove his title – then only other things will be considered = sec.100 C.P.C. – when decree was passed on erroneous law and fact , high court can interfere in second appeal – High court rightly set aside the decree and judgement of lower courts = 

 

1) The plaintiffs not having  produced  any  document  of

                     title, could the courts below decree the suit? /

(1) In the absence of documentary proof, whether oral evidence  can  be

    relied upon for granting a decree declaring  the rights of a party?

Therefore, the High Court

      has rightly come to the conclusion and held that  the  answer  to  the

      first substantial question of law is to be answered  in  the  negative

      and  held  that  since  plaintiff-appellants  have  not  produced  any

      document of title in relation to the suit schedule property, the grant

      of decree in favour of them is  erroneous  in  law.  

 

2) The decision is contrary to the pleadings. The  courts

                     below committed breach of procedure  in  holding  that

                     there was admission  of  original  plaintiff,  in  the

                     pleading when there is no such admission. /

(3) Whether improper admission or rejection of evidence can be a ground

    for new trial or reversal of any decision in any case? =

 

Therefore,  the  High  Court  has  arrived  at  the   right

      conclusion and held that the courts below committed serious  error  in

      holding that there was admission of defendants in the  pleadings  with

      respect to ownership of 1/3rd of the suit  schedule  property  by  the

      plaintiff.

 

2) Whether  the  High  Court  in  a  Second  Appeal  should  set-aside

    concurrent findings of fact upon re-appreciating evidence?  =

    

Section  100  of  the  Code,

      power to set aside concurrent finding of fact can  be  exercised  only

      when a substantial question of law exists  irrespective  of  the  fact

      that the finding of fact is erroneous. =

 

Hero Vinoth (minor) v. Seshammal[10], wherein the  principles

      relating to Section 100 of the CPC were summarized in para  24,  which

      is extracted below :

 

      “24. The principles relating to Section 100 CPC relevant for this case

      may be summarised thus:

          (i) An inference of fact  from  the  recitals  or  contents  of  a

          document is a question of fact. But the legal effect of the  terms

          of a document is a question of law.  Construction  of  a  document

          involving the application of any  principle  of  law,  is  also  a

          question of law. Therefore, when there  is  misconstruction  of  a

          document or wrong application of a principle of law in  construing

          a document, it gives rise to a question of law.

          (ii) The High Court should be satisfied that the case  involves  a

          substantial question of law, and not a mere  question  of  law.  A

          question of law having a material bearing on the decision  of  the

          case (that is, a question, answer to which affects the  rights  of

          parties to the suit) will be a substantial question of law, if  it

          is not covered by any specific provisions of law or settled  legal

          principle  emerging  from  binding  precedents,  and,  involves  a

          debatable legal issue. A substantial question  of  law  will  also

          arise in a contrary situation, where the legal position is  clear,

          either  on  account  of  express  provisions  of  law  or  binding

          precedents, but the court below has  decided  the  matter,  either

          ignoring or acting contrary to such legal principle. In the second

          type of cases, the substantial question of law arises not  because

          the law is still debatable, but because the decision rendered on a

          material question, violates the settled position of law.

          (iii) The general rule is that High Court will not interfere  with

          the concurrent findings of the courts below.  But  it  is  not  an

          absolute rule. Some of the well-recognised  exceptions  are  where

          (i) the courts below have ignored material evidence or acted on no

          evidence; (ii) the courts have drawn wrong inferences from  proved

          facts by applying the law erroneously; or (iii)  the  courts  have

          wrongly cast the burden of proof. When we refer to “decision based

          on no evidence”, it not only refers to  cases  where  there  is  a

          total dearth of evidence, but also refers to any case,  where  the

          evidence,  taken  as  a  whole,  is  not  reasonably  capable   of

          supporting the finding.”

 

 

We have to place reliance on the afore-mentioned case to hold that the  High

Court has framed substantial questions of law as  per  Section  100  of  the

CPC, and there is no error in the judgment of the High Court in this  regard

and therefore, there is no need for this Court to interfere with the same.

 

 

burden  of  proof  and  onus  of proof.   =

In the matter of onus of proof and burden of proof  as  per  Sections

      101 and 102 of the Evidence Act, we have to hold that it was upon  the

      plaintiff-appellants to furnish proof  regarding  ownership  of  1/3rd

      share of the suit schedule property  and  discharge  their  burden  of

      proof as per the afore-mentioned sections. 

The relevant  extract  from

      Anil Rishi v. Gurbaksh Singh (supra) is reproduced below:-

       “19. There is another aspect of the matter which should be borne  in

       mind. 

A distinction exists between  burden  of  proof  and  onus  of proof.  

The  right  to  begin  follows  onus  probandi.  It  assumes

       importance in the early stage of a case. The  question  of  onus  of

       proof has greater force, where the question is, which  party  is  to

       begin. 

Burden of proof is used in three ways:

 (i)  to  indicate  the

       duty of bringing forward evidence in support of a proposition at the

       beginning or later; 

(ii) to make that of establishing a  proposition

       as against all counter-evidence; and 

(iii) an indiscriminate use  in

       which it may mean either or both of the others. 

The elementary  rule

       in Section 101 is inflexible. 

In terms of Section  102  the  initial

       onus is always on the plaintiff and if he discharges that  onus  and

       makes out a case which entitles him to a relief, the onus shifts  to

       the defendant to prove those  circumstances,  if  any,  which  would

       dis entitle the plaintiff to the same.

 

“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  Addagada  Raghavamma  vs Addagada Chenchamma 

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.”

 

 

 

 

We therefore do not  find  any  reason  whatsoever  to  interfere  with  the

impugned judgment and decree passed by the High Court on this aspect of  the

case as well.

 

  26. For the reasons stated above, the appeal is dismissed,

 

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6183 OF 2001

 

Sebastiao Luis Fernandes (Dead) Through
Lrs. & Ors. … Appellants

Vs.

K.V.P. Shastri (Dead) Through Lrs.
& Ors. … Respondents

 

J U D G M E N T

 
V. Gopala Gowda, J.

This civil appeal is filed by the appellants as they are aggrieved by
the judgment and decree of the High Court of Bombay at Goa passed on
14.9.1998 by the learned single Judge in Second Appeal No. 30 of 1986
raising various questions of law and grounds in support of the same. In
this judgment for the sake of convenience the rank of the parties is
described according to their position before the trial court. The
appellants are the legal representatives of the plaintiff and the
respondents are the legal representatives of the defendants. The suit was
instituted by the original plaintiff in the Court of Civil Judge, Sr.
Division at Quepem (hereinafter referred to as “the trial court”) in Civil
Suit No.14091 of 1948.

2. The relevant brief facts are stated for the purpose of appreciating
the rival legal contentions with a view to examine and find out as to
whether the impugned judgment of the High Court of Bombay warrants
interference by this Court in this appeal in exercise of its
jurisdiction under Article 136 of the Constitution of India.

The original plaintiff, Inacinha Fernandes filed Civil Suit No. 14091
of 1948 on 1.1.1948 before the trial court for declaration that she is the
lawful owner in possession of 1/3rd of the property bearing land
registration No.16413 and consequential relief for cancellation of
registration in favour of the defendants-respondents in respect of such
1/3rd share in the suit schedule property and to register the same in the
name of the plaintiff. Presently the legal representatives of the original
plaintiff are before us as appellants. It is the case of the plaintiff-
appellants that suit schedule property is bearing land registration
No.16413 and the claim of the plaintiff-appellants is that it belonged to
three brothers namely, Francisco Fernandes (who was the father-in-law of
the original plaintiff), Francisco Fernandes junior and Pedro Sebastiao
Fernandes and they owned and possessed the same jointly and in equal
shares. The defendant No. 2-Tereza is the daughter of Francisco Fernandes
junior and the original plaintiff-Inacinha Fernandes is the wife of Luis
Fernandes, the son of Francisco Fernandes, the first brother. It is their
further case that on the death of Francisco Fernandes, he was survived by
the husband of the original plaintiff. It is their case that on the death
of said Francisco Fernandes, the 1/3rd share of the suit schedule property
devolved upon Luis the late husband of the original plaintiff and it was
accordingly enjoyed by the plaintiff. Further case of the plaintiff is
that on account of a debt of Rs.198/- to one Naraina Panduronga Porobo, the
property was attached and thereafter the liability was paid by way of
subrogation of rights in favour of the father of the first defendant,
K.V.P. Shastri who bought this property which was sold in public auction on
26th April, 1935 and thereafter granted aforementioned property in favour
of the husband of Tereza, namely, Tomas Fernandes vide perpetual lease. It
is the case of the plaintiff that the right of subrogation in favour of the
father of the first defendant should have been granted by the defendant
No.2-Tereza only in respect of 1/3rd share and not in relation to the
entire property.
3. The case of the plaintiff was sought to be contested by the defendant
No.1 inter alia contending that the claim of the plaintiff is false
and ownership and possession of the suit schedule property stands
transferred in favour of the defendant No.1 with effect from 26.4.1935
and he had acquired right by way of prescription as it has been
enjoyed for 10 years, pursuant to the registration of the suit
schedule property in his name. The defendant No.2 also denied the case
of the plaintiff and claimed to be in possession pursuant to
conveyance thereof by the defendant No.1.

4. On the basis of the pleadings of the parties issues were framed and
the matter went for trial and both the parties adduced evidence. On
appreciation of evidence on record the trial court decreed the suit
vide its judgment dated 29.4.1978. The trial court decreed the suit
holding it to be tenable and directed the defendants to acknowledge
that the plaintiff along with her children is the lawful owner in
possession of 1/3rd share of the suit schedule property and to release
that 1/3rd share in favour of the plaintiff, by declaring to be null
and void the inscription done in the Land Registration Office in
respect to the said property which is described under No. 16413 in so
far as it covered the 1/3rd part of the plaintiff. Further, the
defendants were directed to pay damages caused to the original
plaintiff by depriving her of the income corresponding to her 1/3rd
portion. The trial court held that the alleged prescription does not
operate because the defendant Shastri was never in the possession of
the property, much less in good faith. It was also observed that it is
proved from the proceedings by a fact otherwise admitted that the
plaintiff has her residential house in the suit schedule property with
a common wall with the house of the defendant-Tereza and this is one
more important fact to corroborate the case of the plaintiff, for
being relatives descending from the same common trunk having ancestral
house.

5. Being aggrieved by the said judgment and decree the defendants
preferred Civil Appeal No. 237 of 1981 before the District Court at
Margao and the same was disposed of by judgment dated 16.12.1985 by
recording reasons. The first appellate court held that the evidence on
record shows that neither the original plaintiff nor the original
defendants were able to produce any documentary evidence to support
their title to the suit schedule property, besides the claim made by
them that the property was acquired from the common ancestors.
Further, it observed that the learned trial judge rightly pointed out
that the specific claim made by the plaintiff with regard to the
common ownership to the suit schedule property and the houses was not
specifically denied by the defendants being a fact that only defendant
No.1 namely, Venctexa Govinda Porobo Shastri took a definite stand in
this respect. It was thus held that the trial Judge was justified in
holding that the common ownership of the suit schedule property had
been admitted by the defendants in their written statement and that
they could not prove how the suit schedule property in view of this
fact this common ownership could subsequently belong exclusively to
the daughters of one of the co-owners of the suit schedule property
who were the heirs of one of the sons of the original title holder of
the property. Further, the circumstances of Tereza and Conceicao
having acquired their right through the creditor Shastri who
purchased their property in a public auction after its attachment by
the court from the heirs of one of the co-owners are certainly not
binding on the respondents who were not parties in the said
proceedings being also a fact that simply because the original
plaintiff did not react either against the attachment or the auction,
it cannot be said that this circumstance made her lose her right of
the share acquired by her husband through his father who was one of
the sons of the original owner of the suit schedule property. Besides,
the evidence on record shows that the original plaintiff and her
family were residing in the house situated in the suit schedule
property even at the time of the filing of the suit and subsequently
they shifted their residence after their ancestral house collapsed
having built another house in a different property which had been
acquired by the plaintiff. It was further held by the first appellate
court that the trial Judge has correctly assessed the evidence on
record while adjudicating the rights of the parties to the suit in
favour of the plaintiff, and the judgment could not be said as having
caused any grievance to the defendants-respondents and must be fully
affirmed.

6. Being aggrieved by the said judgment Second Appeal No. 30 of 1986 was
filed by the defendants before the learned single Judge of the High
Court by urging certain substantial questions of law as required under
Section 100 of the Civil Procedure Code, 1908 (for short “the CPC”).
The High Court admitted the appeal by framing the following
substantial questions of law :-
1) The plaintiffs not having produced any document of
title, could the courts below decree the suit?
2) The decision is contrary to the pleadings. The courts
below committed breach of procedure in holding that
there was admission of original plaintiff, in the
pleading when there is no such admission.

3) The courts below failed to consider that the
defendants had pleaded prescription and that Article
526(2) was fully attracted.
7. After hearing the learned counsel for the parties and the translated
pleadings from Portuguese language to English in the plaint with
regard to the claim of ownership of the plaintiff and the pleadings of
defendants, the learned single Judge of the High Court has examined
the rival legal contentions urged with reference to the substantial
questions of law framed by it at the time of admission of the second
appeal and placed reliance upon the judgment of this Court in the case
of Hira Lal and Anr. v. Gajjan and Ors.[1] wherein this Court laid
down the statement of law regarding the substantial questions of law
in the second appeal under Section 100 of the CPC. The relevant
portion of paragraph 8 from the aforesaid judgment reads thus :-
“8.…if in dealing with a question of fact that the lower
appellate court has placed the onus on wrong party and its
finding of fact is the result substantially of this wrong
approach that may be regarded as a defect in procedure. When
the first appellate court discarded the evidence as
inadmissible and the High Court is satisfied that the
evidence was admissible that may introduce an error or
defect in procedure. So also in a case where the court below
ignored the weight of evidence and allowed the judgment to
be influenced by inconsequential matters, the High Court
would be justified in reappreciating the evidence and coming
to its own independent decision.”

With reference to the statement of law laid down by this Court in the
aforesaid case, the learned single Judge of the High Court proceeded to
answer the substantial questions of law Nos. 1 and 2 together by recording
its reasons in paragraphs 7, 8 and 9 of the impugned judgment. In the
second appeal, the High Court on the basis of the statement of law laid
down by this Court in Hira Lal case (supra) examined the correctness of the
concurrent findings of fact recorded by the first appellate court to answer
the substantial questions of law referred to supra. The High Court has re-
appreciated the evidence in the backdrop of the statement of law laid down
by this Court after noticing the fact that the courts below ignored the
pleadings of the defendants-respondents and the weight of their evidence
and allowed its judgments to be influenced by inconsequential matters,
therefore, the High Court was of the view that it is justified in re-
appreciating the evidence and coming to its independent decision and
answered the substantial questions of law Nos. 1 and 2 in favour of the
defendants holding the findings of the courts below on the relevant
contentious issues as perverse. In this regard, at paragraph 7, the High
Court considered the evidence on record and non-appreciation of the same by
the courts below, particularly, the finding recorded by the first appellate
court that the plaintiff-appellants have established their title in respect
of the suit schedule property, that the defendant Shastri had not denied
the claim of ownership of the plaintiff-appellants and further that there
is no specific denial of the ownership by Tereza, holding that the lower
courts have erroneously recorded findings on these aspects. The High Court
has further proceeded to hold that the fact remains that Tereza is not
claiming right independently herself but her claim to the property is
through said Shastri. The case of the defendants before the trial court is
that the said property was purchased by Shastri in a court auction and
subsequently conveyed to Tereza. Therefore, the case of the defendants was
accepted by the High Court stating that the pleading of K.V.P. Shastri in
relation to the denial of ownership of the plaintiff is more relevant and
material rather than that of Tereza. The High Court further made
observation that denial of Tereza without there being any such denial by
Shastri would have been of no consequence because consequent to the
auction to the property through court, Tereza is claiming right to the
property only through Shastri and not independently. Therefore, the High
Court has arrived at valid finding on this aspect of the matter that
irrespective of the denial of such claim of Tereza, had Shastri accepted
the claim of the plaintiff then such denial of Tereza would have been of
no consequence in the facts and circumstances of the case. The High Court
has arrived at a conclusion on the basis of pleadings that undisputedly
Shastri has denied the claim of the ownership of the plaintiff-appellants
in respect of the suit schedule property, therefore, the findings of both
the courts below that there is no denial of the plaintiff’s case regarding
the ownership right of the suit schedule property is not factually correct
and the said finding is held to be totally contrary to the record and the
same is arbitrary and perverse and cannot be sustained. The High Court has
also come to the conclusion on the basis of the pleadings on record that
the claim of the plaintiff-appellants to the suit schedule property is
clearly in dispute and plaintiff-appellants have not proved their title to
the suit schedule property and further rightly came to the conclusion that
the courts below have not properly analyzed the material evidence on record
though plaintiff-appellants have failed to produce documentary evidence in
so far as the title of their ownership of the suit schedule property is
concerned and further the finding recorded by the High Court in its
judgment at para 8 namely, to the effect that the challenge of the
plaintiff with regard to the acquisition of his right to the suit schedule
property by Shastri and Tereza is essentially and solely based on the
basis of the claim of ownership of the plaintiff to the suit schedule
property.
8. The learned counsel for the plaintiff-appellants has submitted their
legal and factual contentions before us. It was contended that the
High Court failed to appreciate that under Section 100 of the CPC,
only a substantial question of law could be framed for the purposes of
examining the contentions of parties and that a substantial question
of law is distinctly different from a substantial question of fact.

9. Further the learned counsel contended that the High Court failed to
advert to the fact that possession of the ancestral property continued
with the original plaintiff. It was contended that the High Court
should have considered the fact that the two fact-finding courts had
come to the conclusion on fact that the deceased-plaintiff was in
possession of the suit schedule property as a co-owner thereof, as
1/3rd of the suit schedule property belonged to her father-in-law
Francisco Fernandes. It is submitted that the learned single Judge of
the High Court has misread the evidence and pleadings in arriving at
the impugned findings. The learned counsel for the plaintiff-
appellants has relied on the judgments of this Court in Deity
Pattabhiramaswamy v. S. Hanymayya & Ors.[2], Dollar Company, Madras v.
Collector of Madras[3] and Ramanuja Naidu v. V. Kanniah Naidu &
Anr.[4] to support the contention that in the facts and circumstances
of the present appeal the High Court has tried to re-appreciate the
evidence in second appeal under Section 100 of the CPC which cannot be
done in the second appeal, in the backdrop of the concurrent finding
of facts by the lower courts on appreciation of pleadings and
evidence on record.

10. It is further contended by the learned counsel that the High Court
failed to appreciate that defendant-Tereza was not claiming rights
independently and her claim to the suit schedule property is through
the said Shastri, when on the contrary, the purported right and
interest of Shastri was in view of a purported public auction of the
property held to recover the debts of the said Tereza and by an
illegal means the said Tereza obtained a perpetual lease of the suit
schedule property in her favour from the said Shastri.

11. It was further contended that there was no question of selling the
entire property in the public auction in pursuance to court decree
when the rights of the said Tereza was only to the extent of 1/3rd of
the entire property and the purported attachment of the same is null
and void and without any legal effect.

12. The learned counsel has also drawn our attention towards the three
points, which arise for consideration by this Court:-
(1) In the absence of documentary proof, whether oral evidence can be
relied upon for granting a decree declaring the rights of a party?
(2) Whether the High Court in a Second Appeal should set-aside
concurrent findings of fact upon re-appreciating evidence?
(3) Whether improper admission or rejection of evidence can be a ground
for new trial or reversal of any decision in any case?

13. He has further submitted that it is manifest that a court is empowered
to grant a decree of declaration of title on the basis of only oral
evidence and further submitted that this Court has settled the scope,
limitation of jurisdiction and power of a second appellate court under
Section 100 of the CPC specifically after the amendment in 1976. This
Court has held that in proceedings under Section 100 of the Code,
power to set aside concurrent finding of fact can be exercised only
when a substantial question of law exists irrespective of the fact
that the finding of fact is erroneous.

14. The learned counsel has also stated that the Indian Evidence Act,
1872 creates a specific bar against conducting a new trial merely on
the ground of improper admission or rejection of evidence and that
Section 167 of the Indian Evidence Act is specific in this behalf.

15. On the contrary, the learned counsel for the defendants-respondents
contended that the present appeal is misconceived and deserves to be
dismissed as the High Court has rightly exercised its jurisdiction
under Section 100 of the CPC. It is evident from the extracts of the
findings of the courts below that the courts below have proceeded on
the basis that there is an admission of the claim of the plaintiff
regarding 1/3rd ownership of the suit schedule property as the same
has not been specifically denied by the respondents. The said finding
is not only contrary to the pleadings on record but is also contrary
to the well-established principles of law viz. (a) that the burden of
proof is upon the person who approaches the court, and (b) any
averment to be taken as an admission must be clear and unambiguous. It
is submitted that it is an admitted fact that the plaintiff-appellants
could not produce any document before the trial court to prove their
title regarding the suit schedule property.

16. It was further contended by the learned counsel that Sections 101 and
102 of Evidence Act clearly states that burden of proof lies on the
person who desires the court to give a judgment on a legal right or
liability and who would otherwise fail if no evidence was given on
either side. In the present case the plaintiffs-appellants would have
to satisfy that burden under the above said sections of the Evidence
Act, failing which the suit would be liable to be dismissed. In this
regard, defendants placed reliance on the judgments of this Court in
Corporation of City of Bangalore v. Zulekha Bi & Ors.[5], Gurunath
Manohar Pavaskar & Ors. v. Nagesh Siddappa Navalgund & Ors.[6] and
Anil Rishi v. Gurbaksh Singh[7], wherein it has been specifically held
by this Court that in a suit for disputed property the burden to
prove title to the land squarely falls on the plaintiff.

17. The learned counsel further contended that the trial court and the
first appellate court have erroneously discharged the burden of proof
as well as the onus of proof on the plaintiff-appellants to prove (a)
the title to the property or for that matter (b) that the same was
ancestral, by referring to the written statements of Tereza Fernandez
and recording an erroneous finding that the rights of the plaintiff
was not disputed by the defendants and, therefore, the same amounted
to an admission. In this regard the pleadings of the parties become
relevant which have been reproduced at page 8 of the impugned judgment
and a perusal of which clearly show that there was a clear and
specific denial of the right of the plaintiff over the said property
as well as the right of the ancestors of the said plaintiff, by the
auction purchaser/defendant No. 1. The relevant pleadings regarding
the claim of ownership as found on page 8 of the impugned judgment are
extracted below :-
“In the village of Loliem there exists a property known as ‘Bodquealem
Tican’ now described in the Land Registry of this Judicial Division
under No.sixteen thousand four hundred thirteen (16,413) and which
belonged jointly to Francisco Fernandes, the father-in-law of the
plaintiff and his brothers Francisco Fernandes junior, and Pedro
Sebastiao Fernandes, who all three had been always holding possession
the property jointly and in equal shares.
In answer to the said pleadings the defendant No.1 the predecessor of
the appellant no.1 stated thus:-
‘The plaintiff her husband Luis or the father of this Francisco
Fernandes Senior never held in possession the property-
Bodquealem Tican-situate at Loliem and described in the Land
Registry under No.16413, the boundaries of which and other
details set out in the doc. of fls. 5 are deemed to have been
reproduced herein for all purposes of law.
The property at issue was always and originally in possession
and ownership of the judgment debtors Tomas Fernandes his wife
Tereza Fernandes, Santana deSouza and his wife Conceicao
Fernandes of Loliem.’
The Other defendants, namely the other appellants stated thus :-
‘For neither she nor her husband held in possession any property
and much less Bodquealem Tican-No.16413 the details of
identification of which are borne out from Doc. of fls. 5 and
are deemed to have been reproduced herein.”

 

18. It is further submitted that it is settled law that for a decree to
be passed on admission, the admission should be clear and unambiguous.
In this regard reliance is placed on the judgment of this Court in
Jeevan Diesels & Electricals Ltd. v. Jasbir Singh Chadha, (HUF) &
Anr.[8] Further, he has urged that so far as the written statement is
concerned, this Court in the case of Rachakonda Venkat Rao & Ors. v.
R. Satya Bai & Anr.[9] held that :
“20. The learned counsel for the plaintiff also tried to build
argument based on the fact that the 1978 decree has been referred to
as a preliminary decree by Defendant 1 in his reply to the
plaintiff’s application under Order 26 Rules 13 and 14 CPC.
According to him this shows that the defendant himself treated the
said decree as a preliminary decree. This argument has no merit. We
have to see the tenor of the entire reply and a word here or there
cannot be taken out of context to build an argument. The reply by
Defendant 1 seen as a whole makes it abundantly clear that the
defendant was opposing the prayer in the application including the
prayer for taking proceedings for passing a final decree.”

 

19. It was further submitted by the learned counsel for the defendant-
respondents that in any event of the matter it is an admitted fact
that there was clear and specific denial by the defendant No.1/the
auction purchaser and owner of the suit schedule property and that the
said finding is concurrent vide trial court judgment (para 12) and
first appellate court judgment (para 8). The relevant portions of
which paragraphs are extracted below:-
Trial Court judgment dated 29.4.1978
“12…On the other hand a careful perusal of the written statement of
the defendant reveals that even though they might have denied that
1/3rd of that property had belonged to the couple of the plaintiff,
only the defendant no.1 clearly stated that the same belonged
entirely to the defendants Tereza and Conceica…”
First Appellate Court Judgment dated 16.12.1985
“8.However it was rightly pointed out by the learned Trial Judge, the
specific claim taken by the respondents with regard to common
ownership of the suit property and the houses was not specifically
denied by the Appellants being a fact that only the original defendant
no.1 Xastri took a definite stand in this respect…”

 
It was further submitted that the owner of the property having specifically
denied title of the plaintiffs as well as the fact that the said property
was ancestral; it was incumbent upon the plaintiff to prove the title as
well as the fact that the said property was ancestral. It was contended
that even assuming for the sake of argument that the other defendant viz.
Tereza who was in possession of the property as a lessee does not deny the
title, the same would make no difference as the owner of the property
defendant No.1 had specifically denied the title.

20. Learned counsel further argued that the High Court has correctly
exercised its jurisdiction under Section 100 of the CPC. It is further
submitted that the findings rendered by the courts below on no
evidence or drawn on wrong inference from the evidence, as well as
casting of onus on the wrong party, are admittedly substantial
questions of law.

21. The submissions of both the learned counsel for the parties with
reference to the case law referred to supra upon which reliance was
placed, are carefully examined by us with a view to find out whether
the substantial questions of law Nos. 1 and 2 framed and answered in
favour of the defendants-respondents and against the plaintiff-
appellants are correct or not. After having heard learned counsel for
the plaintiff-appellants as well as defendants-respondents, we have to
hold that the High Court has rightly held to the effect that it was
primarily and essentially necessary for the plaintiff-appellants to
establish their claim of ownership before they could invite the court
to address itself to the issue of their challenge to the title of the
defendants-respondents to the suit schedule property. The plaintiff-
appellants having failed to do so, their entire claim was liable to be
rejected. The High Court further recorded the finding, that the factum
of registration of the suit schedule property under No.16413 in favour
of the defendants-respondents is not in dispute, yet the plaintiff-
appellants have not produced on the record any document of inscription
of the suit schedule property in their name. Therefore, the High Court
has rightly come to the conclusion and held that the answer to the
first substantial question of law is to be answered in the negative
and held that since plaintiff-appellants have not produced any
document of title in relation to the suit schedule property, the grant
of decree in favour of them is erroneous in law. Further, on the
second substantial question of law, the High Court has rightly
answered in favour of the defendants in the affirmative for the reason
that the courts below, without considering the denial made by the
defendant no.1 with regard to the ownership claim made by the
plaintiff-appellants in respect of the suit schedule property, have
come to the erroneous conclusion that there is no pleading of fact by
the defendants-respondents and lack of evidence in favour of the
plaintiff-appellants to prove their title to the suit schedule
property. Therefore, the High Court has arrived at the right
conclusion and held that the courts below committed serious error in
holding that there was admission of defendants in the pleadings with
respect to ownership of 1/3rd of the suit schedule property by the
plaintiff.

22. After careful scrutiny of the finding of fact and reasons recorded by
the courts below with reference to the substantial questions of law
framed by the High Court at the time of admission of the second appeal
filed by the defendants, we are satisfied that the ratio laid down by
this Court in Hira Lal’s case (supra) and other decisions referred to
supra upon which defendants’ counsel placed reliance in justification
of the findings and reasons recorded by the High Court in the impugned
judgment are applicable to the fact situation of this case as the
courts below have erred in assuming certain facts which are not in
existence to come to the erroneous conclusion in the absence of title
document in justification of the claim of the plaintiff in respect of
the suit schedule property and ignored the pleadings of the defendants
though they have specifically denied the ownership right claimed by
the plaintiff in respect of the suit schedule property and on wrong
assumption of the facts which are pleaded on the contentious issues,
they have been answered in favour of the plaintiff, therefore, the
High Court has rightly exercised its appellate jurisdiction by framing
the correct substantial questions of law with reference to the legal
position and applied the same to the fact situation of case on hand.

23. In our considered view, the substantial questions of law framed by the
High Court at the time of the admission of the second appeal is based
on law laid down by this Court in the above referred case of Hira Lal
which view is supported by other cases referred to supra. Therefore,
answer to the said substantial questions of law by the High Court by
recording cogent and valid reasons to annul the concurrent findings
that the non-appreciation of the pleadings and evidence on record by
the courts below rendered their finding on the contentious
issues/points as perverse and arbitrary, and therefore the same have
been rightly set aside by answering the substantial questions of law
in favour of the defendants.

24. The learned counsel for the defendants relied on the judgment of this
Court in Hero Vinoth (minor) v. Seshammal[10], wherein the principles
relating to Section 100 of the CPC were summarized in para 24, which
is extracted below :

“24. The principles relating to Section 100 CPC relevant for this case
may be summarised thus:
(i) An inference of fact from the recitals or contents of a
document is a question of fact. But the legal effect of the terms
of a document is a question of law. Construction of a document
involving the application of any principle of law, is also a
question of law. Therefore, when there is misconstruction of a
document or wrong application of a principle of law in construing
a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a
substantial question of law, and not a mere question of law. A
question of law having a material bearing on the decision of the
case (that is, a question, answer to which affects the rights of
parties to the suit) will be a substantial question of law, if it
is not covered by any specific provisions of law or settled legal
principle emerging from binding precedents, and, involves a
debatable legal issue. A substantial question of law will also
arise in a contrary situation, where the legal position is clear,
either on account of express provisions of law or binding
precedents, but the court below has decided the matter, either
ignoring or acting contrary to such legal principle. In the second
type of cases, the substantial question of law arises not because
the law is still debatable, but because the decision rendered on a
material question, violates the settled position of law.
(iii) The general rule is that High Court will not interfere with
the concurrent findings of the courts below. But it is not an
absolute rule. Some of the well-recognised exceptions are where
(i) the courts below have ignored material evidence or acted on no
evidence; (ii) the courts have drawn wrong inferences from proved
facts by applying the law erroneously; or (iii) the courts have
wrongly cast the burden of proof. When we refer to “decision based
on no evidence”, it not only refers to cases where there is a
total dearth of evidence, but also refers to any case, where the
evidence, taken as a whole, is not reasonably capable of
supporting the finding.”
We have to place reliance on the afore-mentioned case to hold that the High
Court has framed substantial questions of law as per Section 100 of the
CPC, and there is no error in the judgment of the High Court in this regard
and therefore, there is no need for this Court to interfere with the same.

25. In the matter of onus of proof and burden of proof as per Sections
101 and 102 of the Evidence Act, we have to hold that it was upon the
plaintiff-appellants to furnish proof regarding ownership of 1/3rd
share of the suit schedule property and discharge their burden of
proof as per the afore-mentioned sections. The relevant extract from
Anil Rishi v. Gurbaksh Singh (supra) is reproduced below:-
“19. There is another aspect of the matter which should be borne in
mind. A distinction exists between burden of proof and onus of
proof. The right to begin follows onus probandi. It assumes
importance in the early stage of a case. The question of onus of
proof has greater force, where the question is, which party is to
begin. Burden of proof is used in three ways: (i) to indicate the
duty of bringing forward evidence in support of a proposition at the
beginning or later; (ii) to make that of establishing a proposition
as against all counter-evidence; and (iii) an indiscriminate use in
which it may mean either or both of the others. The elementary rule
in Section 101 is inflexible. In terms of Section 102 the initial
onus is always on the plaintiff and if he discharges that onus and
makes out a case which entitles him to a relief, the onus shifts to
the defendant to prove those circumstances, if any, which would
disentitle the plaintiff to the same.

20. In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P.
Temple the law is stated in the following terms: (SCC p. 768, para
29)
“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 Addagada Raghavamma v.
Addagada Chenchamma 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.”

 
We therefore do not find any reason whatsoever to interfere with the
impugned judgment and decree passed by the High Court on this aspect of the
case as well.

26. For the reasons stated above, the appeal is dismissed, there will be
no order as to costs. Orders passed by this Court on 27.8.1999 and
3.9.2001 stand vacated.
…………………………………………J.
[G.S. SINGHVI]

 
…………………………………………J.
[V. GOPALA GOWDA]
…………………………………………J.
[C. NAGAPPAN]
New Delhi,
December 10, 2013.
———————–
[1] (1990) 3 SCC 285
[2] AIR 1959 SC 57
[3] (1975) 2 SCC 730
[4] (1996) 3 SCC 392
[5] (2008) 11 SCC 306
[6] (2007) 13 SCC 565
[7] (2006) 5 SCC 558
[8] (2010) 6 SCC 601
[9] (2003 (7) SCC 452
[10] (2006) 5 SCC 545

———————–
38

 

 

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