Case: Pares Nath Thakur Vs. Smt. Mohani Dasi And Others

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 Muapalli 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, where the deity is located. Hence, in the first instance, the specific power of 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. 5. 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." Here again, the High Court appears to have overlooked the evidence of D. W. 1, Kunjabehari 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." 6. 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 up to 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. M at the trial because the witness was dead, is pertinent:"I look after the Thakurs 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 Thakurs Pujhari, and look after the Thakurs land since 1936. I regularly maintain accounts. These accounts have been filed in the 2nd Munsiffs Court in connection with Suit No. 94 of 1941. The disputed property relates to lots 1 and 2 of the trust deed. Plot 216 is Thakurs temple. It is a two-storeyed 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 Munsifs 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 law 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." 7. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 facts4. 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 defendant, the deityWith due respect to the High Court, it must be remarked that it appears to have lost sight of the well-established 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 proceed 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 fictitiousThe 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 factIt 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, where the deity is located. Hence, in the first instance, the specific power of 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 uponHere again, the High Court appears to have overlooked the evidence of D. W. 1, Kunjabehari LalThe 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 claimant7. 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