High Court

Legal Reasoning

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD1 SECOND APPEAL NO. 79 OF 1994ANANT RAMRAO DONGREVERSUSSHRI KESHAVRAJ MANDIR TRUSTS RAMGALLI, LATURMr. Milind Patil h/f Mr. V. D. Gunale, Advocate for the appellant Mr. Ameya Sabnis a/w Pranv Dhakne, Advocate for the respondent CORAM: R. M. JOSHI, J.DATE22nd JANUARY, 2025PER COURT :-1.This second appeal is filed under Section 100 of the Code ofCivil Procedure taking exception to the concurrent findings recorded bythe trial Court and the first Appellate Court in favour of the originalplaintiff/respondent herein.2.Parties are referred to as ‘plaintiff’ and ‘defendant’ for thesake of convenience. 3.Original plaintiff is a temple trust duly registered underMaharashtra Public Trusts Act. In the plaint it is specifically stated thatthe plaintiff trust “got suit property”. It is further claimed that thedefendant was in permissive possession of the suit property in thecapacity of pujari of the said temple. A written statement came to befiled by the defendant specifically denying title of the plaintiff over the1.sa79.94.odt1 of 7 suit property and asserting his own title on the basis of the registeredgift deed of the property executed in favour of his father by the ownerthereof.4.In this backdrop of pleadings evidence was led. The plaintiffexamined a trustee and also led evidence of one neighbouring witness.However, plaintiff did not lead any documentary evidence before theCourt. On the other hand the defendant not only examined himself butalso led evidence prove registered gift deed which was executed infavour of father of defendant in the year 1939. The trial Court decreedthe suit. Plaintiff was directed to be removed from the suit property. FirstAppellate Court confirmed the said order.5.Learned counsel for the plaintiff submits that both Courtsbelow committed serious error in not appreciating the pleadings of theparties and evidence led before the Trial Court. It is the contention thatonce the defendant has specifically denied title of the plaintiff and hasclaimed his own title in the suit property, it was incumbent on the part ofthe plaintiff to substantiate title in respect of the property to succeed inseeking decree of eviction against defendant. It is his submission that inview of Evidence Act, the initial burden would always be on the plaintiffto prove his case for seeking decree of eviction against the defendant.He drew attention of the Court to the evidence on record to indicate that1.sa79.94.odt2 of 7 the case of the plaintiff about the ownership of the suit property cannever be accepted on the basis of oral evidence. Moreover he haspointed out that even trustee himself does not claim that trust is theowner of the property. Thus, it is his submission that since both Courtsbelow have failed to appreciate the pleadings of the parties and evidenceon record, the findings recorded by them are perverse and hence tosubstantial question of law is involved in this appeal.6.Learned counsel for the plaintiff made oral submission so alsofiled on record written synopsis. This Court has gone through the saidsynopsis. It is his submission that since the trust has claimed that thetrust is owner of the property, and when the defendant has also claimedownership on the basis of document, the burden would be on thedefendant to prove that he is owner of the property. He also drewattention of the Court to the oral evidence of the plaintiff and moreparticularly evidence of neighbour who certifies that the trust is owner ofthe property. He drew attention of the Court to the findings recorded bythe trial Court as well as first Appellate Court discarding case of thedefendant has failed to prove the gift deed.7.Following substantial question of law arises in this appeal..Whether the both Courts below failed to take intoconsideration the written statement and have wrongly cast burden on the1.sa79.94.odt3 of 7 defendant to prove the case though there was no pleadings and evidenceof the plaintiff that the plaintiff is owner of the suit property. 8.Perusal of the plaint indicates that it is the case of theplaintiff that plaintiff trust “got suit property”. Then thereafter furtheraverments are made to the effect that the defendant was in thepermissive possession of the suit property. On the other hand, defendanthas filed written statement specially denying the title of the plaintiff overthe suit property and asserted his own title. 9.Herein this case, admittedly, in spite of the filing of thewritten statement by defendant denying title of plaintiff over suitproperty, plaintiff did not care to amend the plaint and plead the titleitself or source of title in the suit property. Nor even it is stated as to howtrust ‘got the suit property’. In this backdrop the trial Court in view ofSections 101 and 102 of Evidence Act ought to have cast burden uponthe plaintiff to prove its case. The trial Court on the contrary hasconsidered the evidence of the defendant in order to decree the suit byholding that the defendant has failed to prove that the suit property wasgifted to his father.10.As referred herein above there is not even a plea in the plaintthat the plaintiff is title holder of the suit property leave apart the source1.sa79.94.odt4 of 7 of title. The claim of plaintiff that trust “got property” is alien to the lawfor the conferment of any title in plaintiff of the suit property. Evenotherwise, the plaintiff’s evidence is in the form of examination of thetrustee and neighbouring witness to prove its title in suit property.Trustee Gopalrao in his examination-in-chief also does not even claimthat the trust is the owner of the suit property. It seems that that bothCourts below have accepted the evidence of second witness of plaintiffwho is neighbour and solely on the basis of his oral evidence case of theplaintiff is accepted, meaning thereby it is held that plaintiff trust hasought to claim decree of eviction against defendant. The evidence led byplaintiff in no way proven its right, title and interest in the suit property.11.As against this, the defendant has led evidence in the form ofa registered gift deed executed in favour of his father by the erstwhileowner. At this stge it would be relevant to take into consideration thecross-examination of defendant conducted on behalf of the plaintiff. Inthe cross examination it has come on record that on the basis of the giftdeed the name of the father of defendant was mutated in the record ofright in respect of the suit property. There is no further cross-examination for denying of this evidence which has come on record.Apart from this there is no dispute made with regard to the fact thatthere was any gift deed in favour of the title of the defendant’s father in1.sa79.94.odt5 of 7 respect of the subject property. What was sought to be contended by thecross-examination is that the person who had gifted the property to thedefendant’s father is not owner of the property. In considered view ofthis Court the cross-examination is not sufficient to disbelieving case ofthe defendant. Moreover trial Court erred in disbelieving in this evidencesolely on ground that defendant has no knowledge about other fourproperties referred in gift deed. This finding is perverse discard giftwithout holding that gift is not proved and it is not genuine document. 12.Pertinently, plaintiff neither claims the title on the basis ofany document or nor claim the title on the basis of adverse possession.Needless to say that such claim of adverse possession if any made wouldnot have been maintained against the defendant, since his ownership inthe property is not admitted by plaintiff.13.Thus, plaintiff has failed to discharge initial burden on him toprove his case and to shift onus on defendant to substantiate hisdefence. Section 101 of Evidence Act, requires a person who desires theCourt to give judgment as to his rights on the existence of the fact mustprove that those facts exist. Similarly, according to Section 102, theburden of proof in a suit lies on that person who would fail if no evidencewere given at all on either side. Thus, the burden to prove the case iscast upon plaintiff and only when he gives the evidence to support a1.sa79.94.odt6 of 7 prima facie case, onus shifts upon defendant to adduce evidence inrebuttal to meet case of plaintiff. Thus, trial Court has erred to castburden of defendant, when even there was no evidence enough to shiftonus on defendant to substantiate his defence.14.The aforesaid the pleadings of the parties as well as theevidence on record clearly indicate the plaintiff has failed to prove histitle on the suit property and in the circumstances, there was no reasonor justification for the trial Court to decree the suit. In view of the above,appeal must succeed. The substantial question of law framed above isanswer in affirmative.15.Appeal stands allowed. Judgment and decree passed inR.C.S. No. 783/1988 and confirmed in R.C.A. Noo. 86/1990 stand setaside. R.C.S. No. 783/1988 stands dismissed with costs.(R. M. JOSHI, J.)ssp1.sa79.94.odt7 of 7