Civil Appeal No 655 of 1957
Appeal by special leave from the judgment and decree dated April 22 1954 of the Orissa High Court in Second Appeal No 174 of 1948 arising out of the judgement and decree dated January 12 1948 of the District Judge Cuttack in Munsif Appeal No 309 of 1946 against the judgment and decree of the second 272 Munsif Cuttack dated August 31 1946 in Title Suit No 120 of 1943
A V Viswanatha Sastri and B P Maheshwari for the appellant
section P Sinha and R Patnaik for respondents Nos 2 3 and 4 1959
May 12
The Judgment of the Court was delivered by SINHA J
This appeal by special leave is directed against the judgment and decree dated April 27 1954 of the Orissa High Court passed on second appeal reversing the concurrent decisions of the courts below dismissing the plaintiffs  suit instituted under the provisions of r 63 of 0
21 of the Code of Civil Procedure hereinafter referred to as I the Code 
The suit had been instituted by the respondents for a declaration that the deed of trust dated December 15 1926 in favour of the first defendant Pares Nath Thakur installed in the Digamber Jain Temple in the town of Cuttack in Orissa was sham and fraudulent and had not been meant to be acted upon and that the properties covered by the said deed of trust belonged to the defendants 2 to 4 and were liable to be sold in execution of the decree obtained by the plaintiffs against the defendants second party defendants 2 to 4
The deity the first defendant was sued under the guardianship of the trustees
The facts of this case leading upto this appeal in so far as they are necessary for the determination of this appeal are as follows The plaintiffs are the assignees of the mortgagee s interest in respect of a simple mortgage bond dated April 14 1927 executed by the predecessors in interest of the defendants second party aforesaid
The mortgagees instituted a suit in the court of the Subordinate Judge at Cuttack to enforce the mortgage
They obtained a preliminary decree on June 11 1935 which was made final on October 13 1936
In due course the mortgaged properties were sold and purchased by the decree holders but as the decrement dues were not satisfied by the sale 273 of the mortgage properties a money decree was obtained against the defendants 2 to 4 for Rs 11000 odd on April 29 1940
The disputed properties covered by the deed of trust aforesaid had been attached before judgment on September 23 1934
When the decree holder proceeded against the properties covered by the deed of trust the defendant first party through the trustees preferred a claim to the properties under r 63 of 0
21 of the Code claiming the properties as belonging to the deity and not to the judgment debtors
The executing court after holding an inquiry under the Code passed an order in favour of the claimant
Hence the plaintiffs instituted the suit under the provisions of r 63 of 0 21 of the Code alleging that the trust deed aforesaid by virtue of which the claim had been allowed by the court as aforesaid was a sham and fraudulent transaction which did not convey any title to the property covered by the deed of trust and the subject matter of the suit
The two courts of fact agreed in holding that there was an idol in fact and that the deed of dedication was effective to transfer title from the donors to the donee and that the donors who were the predecessors in title of the defendants second party had completely divested themselves of any interest in the properties which were the subjectmatter of the deed of trust
It was also found that the disputed properties did not belong to the family of the mortgagors and that the deed of trust had been executed only with a view to putting the title to the property beyond all doubt or dispute
The plaintiffs being unsuccessful in the first two courts preferred a second appeal to the High Court of Judicature at Cuttack
The appeal was heard by a Division Bench consisting of Panigrahi C J and Narasimham J
The judgment of the Court was delivered by the learned Chief Justice who set aside the decisions of the courts below and allowed the appeal with costs throughout
As the defendant first party failed to obtain from the High Court the necessary leave to appeal to this Court it moved this Court for special leave which was granted
Hence this appeal
274 It is manifest that the question to be determined by the High Court on the second appeal was essentially one of fact
That the High Court was cognizant of this aspect of the case appears from the following observation with which the decision of the High Court begins   In second appeal the substantial point urged before us is whether the evidence both oral and documentary would warrant an inference that the properties had in fact been dedicated to the deity
 It is well settled by a long series of decisions of the Judicial Committee of the Privy Council and of this Court that a High Court on second appeal cannot go into questions of fact however erroneous the findings of fact recorded by the courts of fact may be
It is not necessary to cite those decisions
Indeed the learned counsel for the plaintiff respondents did not and could not contend that the High Court was competent to go behind the findings of fact concurrently recorded by the two courts of fact
The High Court then set out to examine the evidence  both oral and documentary and after an elaborate examination of the large volume of evidence adduced by the parties recorded the finding that  defendant No 1 has failed to prove his title and that the plaintiffs are entitled to have the suit properties sold with a view to satisfy the decree obtained by them against the judgment debtors
 In our opinion the High Court has completely misdirected itself both in law and on facts as will presently appear even assuming that it was open to it to go behind findings of fact
In the first place the High Court has misplaced the onus of proof as will appear from the conclusion just quoted above
The onus of proof loses much of its importance where both the parties have adduced their evidence
But the High Court seems to have laid some emphasis on onus of proof with a view to examining for itself whether that onus had been discharged by the contesting defandant the deity
This becomes clear from the following observation of the High Court 276  Judged by these principles Ext
F the deed of trust by itself creates no endowment  and it is necessary for the defendants to show by evidence aliunde that there had been an existing endowment in favour of this particular idol to which the description Devottar  can be applied
 Further down the High Court observed as follows after referring to what it characterised as  innumerable decisions   r  Applying the above principles to the facts of this case we find that no evidence has been given with regard to the formal dedication of the properties to the deity except what is recited in exhibit F
This recital is insufficient to support a finding that there had been a real dedication of these properties
 With due respect to the High Court it must be remarked that it appears to have lost sight of the wellestablished rule applicable to suits of the kind it was dealing with that the burden of proof is heavy on a plaintiff who sues for a declaration of a document solemnly executed and registered as a fictitious transaction
The burden becomes doubly heavy when the plaintiff seeks to set aside the order of the civil court passed in execution proceedings upholding the claim of a third party to a property sought to be proceeded against in execution
The plaintiff who seeks to get rid of the effect of the adverse order against him has to show affirmatively that the order passed on due inquiry by the executing court was erroneous
Hence in this case apart from the fact  that the respondents were the plaintiffs there was an initial heavy burden on them not only to show that the order of the civil court in the claim case was erroneous but also that the deed of trust relied upon by the contesting defendant was fictitious
The two courts of fact had discussed all the relevant evidence in great detail and had agreed in finding that the plaintiffs had failed to prove their case
The question which the courts below decided and which was the only question in controversy before the High Court was whether the trust deed was a fictitious transaction
Such a question is essentially one of fact
 See the 276 latest decision of this Court in the case of Meenakshi Hills Madurai vs The Commissioner of Income tax
Madras 1 where it has been laid down inter alia that a finding of fact even when it is an inference from other facts found on evidence is not a question of law except in certain specified cases
The case before us certainly is not one of those specified cases
These observations are sufficient completely to displace the decision of the High Court but we shall examine the reasons of the High Court for setting aside the concurrent findings of fact of the courts below to see whether the High Court was right in its conclusions assuming all the time that the High Court was competent to go into those questions of fact
The High court was considerably influenced by certain recitals in the deed as will appear from the following observations   Above all there is a further significant recital which appears to have escaped the notice of both the courts below and that is that the trustees can dispose of the properties if ever they think it necessary and may also appoint a Pujari for conducting the daily worship of the deity 
 In making these observations the High Court has completely missed the real significance of the following paragraph towards the end of the deed  Be it stated that if it will be required at any time you the trustees according to your unanimous opinion will sell the property situated at Mouzas Baramunda Siripur and Nuapalli etc in Killa Khurda and Zilla Dandimal out of the immovable properties described in schedule kha  of this deed and will appoint any servant etc for the purpose of worship
 It will be noticed from the above quoted provision in the deed that the trustees were specifically empowered by the deed to alienate certain specific properties which according to the evidence were very inconveniently situated
The properties in dispute in this case are not in that category
The properties are land and house in the town of Cuttack were the deity is located
Hence in the first instance the specific power of 1  277 alienation granted to the trustees did not apply to the properties in dispute
Secondly such a provision in a deed of trust is not wholly out of place which could lend itself to the inference that the document was not intended to be acted upon
The High Court then examined in detail the evidence of D W 3 who on its own findings is a respectable person
About this witness the High Court observed  Undoubtedly the testimony of this witness is entitled to great respect and the courts below have accepted it as reliable While dealing with the evidence of this witness the High Court proceeded to make the further remarks  We are here concerned with the determination of the sole question as to whether there has in fact been a dedication in favour of the deity
No witness has been called to prove the gift of any single item of the properties in suit
Even the evidence relating to the installation of the idol is extremely obscure
 there again the High Court appears to have overlooked the evidence of D W 1 Kunjabahari Lal who has stated as follows The disputed shop house belongs to the Thakur
In 1870 or 1872 one person probably of the name of Maniklal gifted the disputed shop house to the Thakur
 While dealing with the question whether the deed of trust had been given effect to the High Court made the following significant observations  There is no evidence of the appropriation of the rents and profits of the properties upto the year 1938 and even the accounts which are alleged to have been maintained have not been produced
 The High Court here again appears to have overlooked some material evidence bearing on this aspect of the matter
Particularly significant is the evidence of one Dhaneswar Lal who was examined by the executing court in the claim case aforesaid on behalf of the claimant
The following statement in his evidence which was marked as ext
Mat the trial because the witness was dead is pertinent 278 I look after the Thakur s affair
I am a Panchayat member of the Thakur
I also perform its Puja and get a pay of Rs 12 for it
Since 1934 I work as Thakur s Pujhari and look after the Thakur s land since 1936
I regularly maintain accounts
These accounts have been filed in the 2nd Munsif s Court in connection with Suit No 94 of 1941
The disputed property relates to lots I and 2 of the trust deed
Plot 216 is Thakur s temple
It is a twostoreyed building
 The witness had been cross examined by the plaintiffs who were opposing the claim and in his cross examination it was brought out that the accounts which the witness stated had been filed in the 2nd Munsif s Court also included expenditure made in the temple
In this connection it is noteworthy that the plaintiffs had not called upon the contesting defendant to produce those account books in respect of the properties in dispute
If that party had been called upon to produce those documents and it had failed to produce them an adverse inference might have been permissible to a court of fact
But apparently the High Court was inclined on the second appeal to draw such an adverse inference even though no foundation had been laid at the trial for justifying such an inference
To the same effect are the following observations of the High Court  On the other hand the other facts and circumstances of the case raise a strong presumption that there had in fact been no such endowment
 It is clear therefore that the decision of the High Court on the second appeal reversing the concurrent findings of fact of the two courts below is based upon inferences drawn from evidence oral and documentary after misplacing the onus of proof
This the High Court was not entitled to do
Besides as we have already indicated
even on the merits the findings of the High Court are open to serious criticism and must be held to be unsound
For the reasons aforesaid it is clear that the judgment of the High Court cannot be supported
The appeal is accordingly allowed with costs throughout and the suit will stand dismissed
Appeal allowed


Summary:
Where a patnidar has obtained a decree against his zemindar for possession of resumed chaukidari chakran lands with mesne profits from the date on which the zemindar wrongfully took 783 possession of them the zemindar is not entitled to deduct by way of equitable set off from the amount of mesne profits payable by him under the decree the amounts due to him on account of rent revenue and cesses for a period subsequent to the date of delivery of possession of the lands inasmuch as the two cross demands do not arise out of the same trans action
The transaction which led to the plaintiff s demand for mesne profits resulted from the defendant s wrongful act as trespasser while the transaction which gave rise to the zemindar s demand arose out of the relationship of landlord and tenant and the obligations resulting therefrom