Sebastiao Luis Fernandes(dead)by Lrs&ors Vs K.V.P.Shastri .

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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

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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

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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

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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.

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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

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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

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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

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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

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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.

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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

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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

1 (1990) 3 SCC 285

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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

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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

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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

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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

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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

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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 Madras3 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

2 AIR 1959 SC 57 3 (1975) 2 SCC 730 4 (1996) 3 SCC 392

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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

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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

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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

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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

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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 Singh7, 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

5 (2008) 11 SCC 306 6 (2007) 13 SCC 565 7 (2006) 5 SCC 558

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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

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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

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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

8 (2010) 6 SCC 601 9 (2003 (7) SCC 452

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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…”

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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.

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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

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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

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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

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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.

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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. Seshammal10, wherein the principles relating to Section 100 of the CPC were summarized in para

24, which is extracted below : 10 (2006) 5 SCC 545

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“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

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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

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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)

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“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.

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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.

37

SEBASTIAO LUIS FERNANDES(DEAD)BY LRS&ORS Vs K.V.P.SHASTRI .

SEBASTIAO LUIS FERNANDES(DEAD)BY LRS&ORS Vs K.V.P.SHASTRI .