Case: Tilak Chand Kureel Vs. Bhim Raj

Ramaswami, J.1. This appeal is brought by special leave from the judgment of the Allahabad High Court, dated February 3, 1965 in First Appeal No. 216 of 1954.2. The respondent along with three others filed suit No. 4 of 1950 in the Court of District Judge, Kanpur, alleging that the property in dispute belonged to the Kureel community and the appellant was trustee thereof; that the property had been purchased by the Panches of the community for its benefit and other charitable purposes; that since its purchase it was used for that purpose; that the appellant had started claiming his own rights and had misappropriated the property. The suit was contested by the appellant who denied that the property was trust property. He claimed that he was exclusive owner of the property along with members of his own family, that the buildings standing over the land were constructed by him with his own funds and that he did not take any help either from donations from the Municipal Board or from the members of the public. The suit came up for hearing before the Additional District Judge, Kanpur, who by his judgment, dated May 5, 1954, dismissed the same. The respondents preferred an appeal to the High Court against the judgment of the Additional District Judge, Kanpur. The appeal came for hearing before Mr. Justice Bishamber Dayal who by his judgment, dated February 9, 1965 allowed the appeal, holding that there was a public trust. The case was remanded to the Additional District Judge for framing a proper scheme for the management of the property and for other reliefs.3. On behalf of the appellant it was argued by Mr. C. B. Agarwala that the property was ancestral property of the appellant and there was no public trust as alleged by the respondents. The argument was stressed that the finding of the High Court was based on a misreading of the documentary evidence and was wrong in law. We are unable to accept the argument put forward on behalf of the appellant as correct. In the first place the sale deed, dated May 31, 1876 Ex. 1, proves that the property was purchased by the Panches of Kureel community. In the sale deed seven persons are mentioned as Panches of the community who purchased the property. Although the boundaries of the sale deed do not tally with the present boundaries of the disputed land there is the unrebutted statement of Jagannath Prasad, one of the plaintiffs witnesses, that this sale deed related to the property in dispute. The circumstance that the property was purchased expressly stating that it belongs to the Panches of the community is a very strong piece of evidence that the property was purchased for the Kureel community. There is also other documentary evidence to support this inference. In the Municipal assessment list for the year 1921 to 1927 Ex. 8 the property is mentioned in the name of Ram Dayal son of Debi, Madari and Kulasi and in Column 5 thereof it is described as Panchayati Dharamshala. In the assessment list Ex. 9 for the years 1938-43 the property is mentioned in the name of Tilakchand as manager and trustee, with a remark that the property was occupied by Sir Jwala Prasad Srivastava Public Library.4. On behalf of the appellant it was contended that Exs. 2, 18 and 19 were not admissible in evidence and the High Court was wrong in relying upon these documents. It was said that the presumption under Section 90 of the Evidence Act was not applicable as copies were produced and not the original documents. In our opinion this argument is well-founded. In Basant v. Brijraj(62 IA 180) it was held by the Privy Council that the presumption enacted in Section 90 of the Evidence Act can be applied only with regard to original documents and not copies thereof. The same view was taken by this Court in Harihar Prasad Singh v. Mst. of Munshi Nath Prasad(1956 SCR I at p. 9.). In view of the legal position it is manifest that the High Court ought not to have taken into consideration Exs. 2, 18 and 19. But even if Exs. 2, 18 and 19 are not taken into account the documentary and oral evidence produced on behalf of the respondents sufficiently establishes that the property in dispute was acquired by the Kureel community and has been used for charitable purposes for the benefit of the Kureel community.5.

Decision:
0[ds]In our opinion this argument is well-founded. In Basant v. Brijraj(62 IA 180) it was held by the Privy Council that the presumption enacted in Section 90 of the Evidence Act can be applied only with regard to original documents and not copies thereof. The same view was taken by this Court in Harihar Prasad Singh v. Mst. of Munshi Nath Prasad(1956 SCR I at p. 9.). In view of the legal position it is manifest that the High Court ought not to have taken into consideration Exs. 2, 18 and 19. But even if Exs. 2, 18 and 19 are not taken into account the documentary and oral evidence produced on behalf of the respondents sufficiently establishes that the property in dispute was acquired by the Kureel community and has been used for charitable purposes for the benefit of the Kureelare unable to accept the argument put forward on behalf of the appellant as correct. In the first place the sale deed, dated May 31, 1876 Ex. 1, proves that the property was purchased by the Panches of Kureel community. In the sale deed seven persons are mentioned as Panches of the community who purchased the property. Although the boundaries of the sale deed do not tally with the present boundaries of the disputed land there is the unrebutted statement of Jagannath Prasad, one of the plaintiffs witnesses, that this sale deed related to the property in dispute. The circumstance that the property was purchased expressly stating that it belongs to the Panches of the community is a very strong piece of evidence that the property was purchased for the Kureel community. There is also other documentary evidence to support this inference. In the Municipal assessment list for the year 1921 to 1927 Ex. 8 the property is mentioned in the name of Ram Dayal son of Debi, Madari and Kulasi and in Column 5 thereof it is described as Panchayati Dharamshala. In the assessment list Ex. 9 for the years 1938-43 the property is mentioned in the name of Tilakchand as manager and trustee, with a remark that the property was occupied by Sir Jwala Prasad Srivastava Public Library.