Case ID: 751

Judgment:
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 SIN]HA 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. 11	000 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:
The respondents as plaintiffs brought the suit	 out of which the present appeal arises	 under the provisions of 0. 21	 r. 63 Of the Code of Civil Procedure for a declaration that the deed of trust executed in favour of the appellant deity was a sham and fictitious document and the properties covered by it were liable to sold in execution of their decree. The courts below dismissed the suit but the High Court	 by misplacing the onus on the deity to prove its title	 set aside the concurrent findings	 of the Courts below and decreed the respondents ' suit. Held	 that the question whether a trust deed was a fictitious document or not was essentially a question of fact. Meenakshi Mills	 Madurai vs The Commissioner of Income tax	 Madras	 ; 	 referred to. It was well settled by a long series of decisions of the Privy Council and of this Court that the High Court could not	 in a second appeal	 interfere with findings of fact arrived at by the Courts below" however erroneous they might be. Even assuming that it was open to the High Court to go behind the findings of fact	 it was clear that it had completely misdirected itself on the question of onus. In a suit	 such as the present	 where the plaintiff sought for a declaration that a document solemnly executed and registered was a fictitious one	 the burden lay heavily on him to prove that it was so and that burden became still more heavy where he sought a declaration that an order passed by the court upholding a claim of a third party under 0. 21	 r. 60 of the Code was erroneous.