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TMI Blog2003 (10) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant (hereinafter referred to as the appellant ) has been ordered to be dismissed. A brief reference to the pleadings of the parties may be made to appreciate the points raised in this appeal. Appellant claimed himself to be the owner of the property bearing No. D.No. 40 comprised in T.S.No. 201, Block No. 4, Ward No. 5 in the Municipal City of Tirupur. That M.R. Arunachala Mudaliar, defendant No. 2 (hereinafter referred to as the tenant ) was inducted as a tenant in the year 1952 by his father at a rent of ₹ 300/- which was enhanced to ₹ 400/- in the year 1965. Arulmigu Visweswaraswamy Veeraragava Perumal Temples, defendant No.1 (hereinafter referred to as the temple ) also claim ownership to the property. Appellant claimed himself to be a hereditary trustee of the temple. Originally, from 1946-47 till 1959, the property stood recorded in the municipal register in the name of three persons, namely, K.N. Palanisami Gounder, R.V. Easwaramurthi Gounder and A. Narayaanaswami Gounder. Easwaramurthi Gounder was the father of the appellant. After the death of Easwaramurthi Gounder, father of the appellant, the name of the appellant came to be registered in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Rajapandian, an employee of the temple, stepped in the witness box as DW1 and the tenant appeared as his own witness as DW2. By way of documentary evidence appellant produced Exhibit A1 to Exhibit A34 consisting of books of accounts; copies of the municipal registers; receipts of payment of property tax paid in the municipal committee; documents showing collection of rent; Exhibit A-30 dated 14.10.1969 is the order of the Assistant Commissioner, H.R. and C.E. Administration Department, Coimbatore in which it has been held that the suit property does not belong to the temple. Exhibit A-34 dated 6.7.1970 is a rent agreement executed between the appellant and tenant in respect of the suit property. Documents A-30 and A-34 are the photostat copies of the original; they were admitted in evidence and marked as exhibits without any objection from other side. Temple produced Exhibits B1 to B46 pertaining to receipt of rent from the tenant and payment of property tax to the Municipal Committee after the year 1969. Trial Court relying upon the oral as well as documentary evidence held that the appellant was the owner of the property and that respondent no. 2 was the tenant of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so. As to whether the appellant or the temple had the title to the property in suit was the question to be determined in the case and the High Court erred in assuming and proceeding on an assumption that the property belonged to the temple. The questions framed by the High Court did not arise as substantial questions of law based on the findings recorded by the courts below \200\223 concurrently in this case. In our opinion, the High Courts judgment deserves to be set aside on this short ground and the case remitted back to the High Court for decision afresh and in accordance with the law, after re-framing only such substantial questions of law, if any, as do arise in the appeal. But since the suit was filed in the year 1978 and the parties have been in litigation for the last 25 years, we are refraining from remitting the case back to the High Court for re-decision on merits. Onus to prove title of the property undoubtedly is on the person asserting title to the property. Appellant produced Ledger Books A9, A11, A13, A15, A17, A19, A21, A23, A25 A27 for the years 1952, 1953, 1954, 1955, 1957, 1958, 1959, 1960, 1962 1964 respectively maintained by the father of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar when it consists of any entry or memorandum made by him in books kept in the ordinary course of business etc. is by itself relevant. The maker of the entry is not obviously available to depose incorporation of the entry. In a given case, depending on the facts and circumstances brought on record, the Court of facts may still refuse to act on the entry in the absence of some corroboration. In the present case the courts of fact, subordinate to High Court, have not felt the need of any further corroboration before acting upon the entries in the ledger books made by the deceased father of the appellant. So far as the entries made by the appellant are concerned, he has deposed to making of the entries and corroborated the same by his own statement. The appellant has been believed by the trial Court and the first appellate Court and his statement has been found to be enough corroboration of the entries made by him. Here again no such question of law arose as would enable the High Court to reverse that finding. The entries amply prove that for a length of time, upto the year 1959 the appellant s deceased father, and then the appellant, was collecting the rent of the suit property cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff has in his statement deposed and made it clear that the certified copy, though available, was placed on the record of another legal proceedings and, therefore, in the present proceedings he was tendering the photocopy. There is no challenge to this part of the statement of the plaintiff. If only the tendering of the photocopy would have been objected to by the defendant, the plaintiff would have then and there sought for the leave of the Court either for tendering in evidence a certified copy freshly obtained or else would have summoned the record of the other legal proceedings with the certified copy available on record for the perusal of the Court. It is not disputed that the order of Charity Commissioner is a public document admissible in evidence without formal proof and certified copy of the document is admissible in evidence for the purpose of proving the existence and contents of the original. An order of Charity Commissioner is not per se the evidence of title inasmuch as the Charity Commissioner is not under the law competent to adjudicate upon questions of title relating to immovable property which determination lies within the domain of a Civil Court. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as an exhibit , an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the Registrar s office being put in evidence. Had such objection being made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their lordships think that there is no substance in the present contention. Similar is the view expressed by this Court in P.C.Purushothama Reddiar vs. S.Perumal [1972 (2) SCR 646]. In this case the police reports were admitted in evidence without any objection and the objection was sought to be taken in appeal regarding the admissibility of the reports. Rejecting the contention it was observed: Before leaving this case it is necessary to refer to one of the contention taken by Mr. Ramamurthi, learned counsel for the respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the Head-constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility \200\223 see Bhagat Ram V. Khetu Ram and Anr. [AIR 1929 PC 110]. Since documents A30 and A34 were admitted in evidence without any objection, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... temple treating it to be the landlord. In the property tax register the appellant and prior to that his predecessors have been shown to be the owners. An entry in the municipal record is not evidence of title. The entry shows the person who was held liable to pay the rates and taxes to the municipality. The entry may also, depending on the scope of the provision contemplating such entry, constitute evidence of the person recorded being in possession of the property. Such entries spread over a number of years go to show that the person entered into the records was paying the tax relating to the property and was being acknowledged by the local authority as the person liable to pay the taxes. If the property belonged to the temple, there is no reason why the temple would not have taken steps for having its own name mutated into the municipal records and commencing payment of taxes or claimed exemption from payment of taxes if the charity was entitled under the law to exemption from payment of taxes. Temple has not been able to produce any evidence oral or documentary to prove its title to the property. Only because tenant attorned to the temple and started paying rent to the temple i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the offence charged amounts to treason or felony, a much higher degree of assurance is required. (BEST, S. 95). While civil cases may be proved by a mere preponderance of evidence, in criminal cases the prosecution must prove the charge beyond reasonable doubt. (See Sarkar on Evidence, 15th Edition, pp.58-59) In the words of Denning LJ (Bater Vs. B, 1950, 2 All ER 458,459) It is true that by our law there is a higher standard of proof in criminal cases then in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. So also in civil cases there may be degrees of probability. Agreeing with this statement of law, Hodson, LJ said Just as in civil cases the balance of probability may be more readily fitted in one case than in another, so in criminal cases proof beyond reasonable doubt may more readily be attained in some cases than in others. (Hornal V. Neuberger P. Ltd., 1956 3 All ER 970, 977). In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinued to be the trustees. The trouble erupted when in the late sixties the Charity Commissioner appointed other trustees and Chief Executive Officer of the trust dislodging the plaintiff from trusteeship. The plaintiff staked his claim to trusteeship of the temple submitting that the office of the trustee of the temple was hereditary and belonged to the plaintiff. The plaintiff was managing the trust property as trustee while the property adjoining to the property of the temple, i.e. the suit property, was in possession of the plaintiff as owner occupied by the tenant, the defendant No.2., inducted as such by the father of the plaintiff. At the instance of the Chief Executive Officer of the trust, the defendant No.2, during the continuance of the tenancy in favour of the plaintiff, executed a rent note in favour of the temple attorning the latter as his landlord. This the defendant no.2 could not have done in view of the rule of estoppel as contained in Section 116 of the Evidence Act. It was at the instance of the newly appointed trustees and the Chief Executive Officer who on behalf of the temple started claiming the suit property in occupation of the tenant, defendant No.2, to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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