His Holiness Sri Devendradoss vs Sri Sarjudoss and Others

G. Bikshapathy, J.—This second appeal is filed against the judgment and decree in A.S. No. 172 of 1988, dated 25-9-1991 on the file of the Additional District Judge, Tirupathi, confirming the Judgment and decree passed in OS. No. 167 of 1979 dated 27-10-1988 on the file of the Principal Subordinate Judge, Tirupathi. The plaintiff is the appellant in the second appeal. For the sake of convenience, the parties herein have been referred to as they are arrayed in the suit.

The plaintiff filed the suit seeking declaration that he is the Mathadipathi (Mahant) of Sri Hathiramji Mutt, Tirupathi and also for permanent injunction restraining the defendants from interfering with the administration of the Mutt by the plaintiff. As per the averments in the plaint, it is stated that the Hon''ble Supreme Court declared the plaintiff as Mahant of Swamy Hathiramji Mutt, Tirupati in its Judgment dated 6-11-1972 in C. A. No. 407 of 1971. Consequently he took over the charge of the administration of the Mutt as Mathadhipathi.

While so, the plaintiff wanted to go on pilgrimage to holy places in India and to take some rest and accordingly he issued proceedings dated 5-11-1978 handing over the administration of the Mutt to the first defendant, who was his first discipline and the said proceedings stipulate that the management of the Mutt should be administered in the absence of the plaintiff by the first defendant. The second defendant is the Manager of the Mutt and the third defendant is the close associate of the Defendants No. 1 and 2. Third defendant died during the pendency of the proceedings, and, therefore, the legal representatives of the third defendant were brought on record, as per the orders dated 10-4-1990 of the Additional District Judge, Tirupathi. It is further averred by the plaintiff that before leaving Tirupathi on pilgrimage, the defendants Nos.l to 3 asked the plaintiff to leave certain blank-papers with his signatures, which the plaintiff unhesitatingly left and the said signed papers were handed over to the third defendant. It is also the practice of the plaintiff to leave certain blank-papers containing signatures, whenever he is out of Tirupati, so that, they can be used whenever found necessary, as there were number of cases pending in the Courts, filed by and against the Mutt. On 24-8-1979 the plaintiff returned from the pilgrimage and took charge of of the affiars of the Mutt. On assumption of charge, the plaintiff came to know that the defendants Nos. 1 to 3 in collusion with each other forged certain documents with an intention of ousting him from Mahantship and installing the first defendant as Mahant and informed the Endowment''s Commissioner, Secretary to Government and the Banks to the -_ effect, that the plaintiff has resigned from the office of the Mahantship. The plaintiff states that he never expressed his desire to resign and did not send any resignation letter to the authorities. The first defendant taking advantage of the proceedings dated 5-11-1978 said to have sent the letters stating that the plaintiff had resigned and the first defendant was the Mahant. It is stated that the alleged letters are the outcome of rank-forgery and the plaintiff had not intended to resign. If he really intended to resign, he would not have left without making allowance for his maintenance and without giving charge of Silver and Gold articles to his successor. The plaintiff took Rs. 8,000/- when he left for pilgrimage out of Rs. 28,000/- which was his personal money. As the defendants are trying to interfere with the Mutt affairs, the plaintiff is unable to proceed with the administration of the Mutt peacefully and hence filed the suit for declaration and permanent injunction.

During the course of the proceedings, the defendants No. 4 and 5 were brought on record. All the defendants had contested the suit and filed separate written-statements.

The first defendant, in his written-statement, admitted that the plaintiff was the Mahant of the Mutt. However, he stated that on 10-11-1978 the plaintiff resigned Mahantship and consequently he took charge of Mahantship from the plaintiff on 10-11-1978 and since then he has been Mahant of the Mutt and that the Plaintiff was no longer Mahant since 10-11-1978. He denied the averment that the plaintiff went on pilgrimage after handing over the affiars of the Mutt in pursuance of the proceedings dated 10-11-1978. He also denied the handing over blank-papers containing his signatures. The first defendant had stated that the plaintiff was vexed with the administration of the Mutt as several charges of misfeasance and malfeasance were framed against him and he was suspended and ultimately he was re-instated with the direction that the Departmental enquiry can go on. The plaintiff (sic. first defendant) further stated that the plaintiff was sure to be removed from the office and if it is done, it would affect the prestige of the Mutt. Therefore, the plaintiff suggested the ways and means to avoid conflicts and accordingly the plaintiff wrote a letter on 10-11-1978 to the 1st defendant in pathetic tone asking the first defendant to take up the management and for which the first defendant sent letters to the Endowments Department. The plaintiff also sent communication to all the Banks informing about his resignation and appointment of the first defendant as Mahant and wanted them to permit the first defendant to operate the Bank accounts. Even prior to that, on 7-11-1978 the Akada Panchayat selected the first defendant to succeed the plaintiff. The plaintiff handed over the charge of the articles of Mahant to the first defendant on 10-11-1978. Therefore, the plaintiff cannot file the suit for declaration and for injunction, as he was out of office as on the date of the suit. Therefore, he ought to have filed a suit for recovery of possession of the suit mutt and his assets and hence the suit as framed is not maintainable. There is no cause of action to file the suit and, therefore, the suit is liable to be dismissed with costs.

The second and third defendants filed memo adopting the written- statement filed by the first defendant.

The fourth defendant, who is the Assistant Commissioner of Endowments filed written-statement stating that the plaintiff was the Mahant of Sri Hathiramji Mutt, Tirupati, for the period from 1973 to 1976 and subsequently he was suspended by the Commissioner on 10-1-1976. He was again inducted as Mahant on 4-5-1978 and functioned upto 10-11-1978, on which date he resigned the Mahantship, nominating the first defendant. Even the first defendant was suspended from the office of Mahantship of the Mutt by the proceedings of the Commissioner dated 3-1-1988 and consequently fourth defendant was placed incharge of the administration of the Mutt. This fourth defendant is presently managing the administration of the Mutt.

The fifth defendant also filed the written-statement on the similar lines as that of the fourth defendant.

The learned Subordinate Judge, Tirupati framed the following issues, including the additional issues, for trial:

Whether the resignation letter dated 10-11-1978 is valid and binding on the plaintiff?

Whether the suit as prayed is not maintainable?

Whether the Court fee paid is correct and sufficient?

Whether this Court has no jurisdiction to entertain the suit?

Whether D-2 to D-4 are necessary parties to this suit?

Whether the plaintiff is entitled to the declaration and injunction as prayed for?

Is the suit not maintainable without the Government being made a party? (Addl. Issue framed on 4-2-1987).

Is the 4th defendant not entitled to manage the secular affairs of the plaintiff Mutt? (Addl. issue framed on 17-2-1987)

To what relief?

The plaintiff examined two witnesses, including himself, and marked Exs. A-l to A-30. On the defendants'' side three witnesses were examined and Exs.B-1 to B-29 were marked. Exs.X-1 and X-2 were marked by the Court.

The learned Subordinate Judge, considering the evidence on record, came to a categorical conclusion that the plaintiff had resigned the post of Mahantship voluntarily on 10-11-1978 and the said resignation is binding on the plaintiff. He further held that the resignation letter is not fabricated by defendants Nos.l to 3. As it is a case of voluntary resignation, the plaintiff is not entitled for the relief of declaration and consequential injunction as prayed for. Accordingly, the learned Subordinate Judge dismissed the suit by a Judgment and Decree dated 27-10-1988.

Aggrieved by the said Judgment and Decree of the learned Subordinate Judge, Tirupati, the plaintiff filed an appeal, A.S. No. 172 of 1988 before the learned Additional District Judge, Tirupati. The learned Additional District Judge dismissed the appeal by his Judgment dated 25-9-1991, duly concurring with the findings of the trial Court.

Sri P.S. Narayana learned Counsel appeared for the plaintiff and Sri N.V. Suryanarayana Murthy represented defendant No. 4 before this Court. Defendant No. 1 is represented by P. Ramachandra Reddy. Defendants No. 2 and 3 were not represented before this Court by any Counsel. Heard the learned Counsel.

Sri P.S. Narayana, learned Counsel for the appellant vehemently argued that the findings of the Courts below to the effect that the resignation letter dated 10-11-1978 was voluntary and it is not fabricated are not based on any legal evidence and, therefore, the said findings are required to be set aside. In support of his contention he relied upon the Jagdish Singh Vs. Natthu Singh, .. The Supreme Court in the said case observed that the High Court would be competent to interfere in the second appeal if there is no consideration of the relevant evidence or the approach of the Court was erroneous.

Sri Suryanarayana Murthy, learned Counsel for defendant No. 4 contends that it is a case of pure finding of fact arrived at by the lower Court in appreciation of evidence. Therefore, it does not involve any question of law, much less substantial question of law. The facts have been fully appreciated by the Courts below and the same conclusion has been reached by the Courts below, it would not be proper for this Court to interfere with the concurrent finding of the fact except in exceptional cases where finding shocks the conscience of the Court or disregard of the forms of legal process or some violation of principles of natural justice or otherwise substantial and great injustice has been done.

In the instant case, the trial Court has discussed the evidence thread-bare and referred to various documents filed by the parties. While it is the case of the plaintiff, that he has handed over the charge as a temporary arrangement for the administration of the Mutt, during the period of his absence on pilgrimage, it 15 is the case of the first defendant that the Plaintiff having vexed with the administration of the Mutt, decided to resign on 10-11-1978 and he handed over the charge to him and the same was also informed to the concerned, including the Banks. It is also brought on record, that the plaintiff did not leave Tirupathi on pilgrimage. On the other hand, Ex.B-2, Sadhu Feeding Register clearly shows that he took food in the Mutt after November, 10 and also in December, 1978. The signature of the plaintiff was not disputed by him. However, it was contended that the contents of the resignation letter were typed by misusing the blank-papers entrusted to the defendants. The trial Court clearly gave a finding that the letters Exs.B-11 to B-14 were typed on letter-heads. Ex.B-15 also shows that the Deputy Commissioner in turn intimated to the Reserve Bank of India to the effect that the plaintiff had resigned and the first defendant took over the charge of the Mutt. After considering the various documents, the trial Court held that the plaintiff had resigned the post of Mahantship on 10-11-1978 and that he did not go on Piligrimage. In view of the clinching evidence, both oral and documentary, it cannot be said that the trial Court or appellate Court failed to consider the relevant evidence and that the approach of the Courts below was erroneous. I am not inclined to reappreciate the evidence in the second appeal now, especially in case of concurrent findings of the Courts below.

The principle laid down by the Supreme Court in the above case is not applicable to the instant case. I see no force in the contention of the appellant and I reject the same.

It was next contended by the learned Counsel for the appellant that the Courts below erroneously placed burden of proof on the plaintiff. It is urged that it is for the first defendant to discharge the burden of proof and not the plaintiff. In support of this contention, he relied on the Judgment in Addagada Raghavamma and Another Vs. Addagada Chenchamma and Another, . In Paragraph 12 of the said Judgment it was held that:

"There is an essential distinction between burden of proof and onus of proof: burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts."

The burden of proof in the instant case lies on the plaintiff to establish the factum that he left for pilgrimage and that handing over of administration to the first defendant is only a temporary arrangement. This was not discharged by the plaintiff by adducing evidence. The trial Court after appreciation of the evidence came to the conclusion that the resignation was true and valid. Therefore, the issue is pertaining to the domain of appreciation of evidence and not pertaining to burden of proof. Hence the judgment of the Supreme Court is of no avail to the plaintiff.

He next relied upon the Judgment in Nataraja Deekshidar Vs. Aiyathurai Padayachi, . In this case, it was a suit for redemption of usufructuary mortgage. He drew the support from Para 13 of the said Judgment, which reads as follows:

"Where the registered document produced by the plaintiff in support of his title to property thereunder, proved that the same had, been executed on the date stated it was for the defendant to rebut this prima facie proof established by the plaintiff. It was therefore necessary for the lower appellate Court to discuss the evidence on record casting the burden upon the defendant to rebut the proof of execution of the document on the date it bears. Where the lower appellate Court wrongly cast the burden upon the plaintiff to prove the genuineness of the documents, there was a substantial error in the procedure adopted by the lower appellate Court in giving its decision with regard to the dispute between the parties which necessitated interference in second appeal."

The facts of the present case are quite different and therefore, the Judgment of the Madras High Court is not applicable to the facts of the present case. Moreover, it is to be seen that the plaintiff has not raised the question relating to burden of proof and the same was not raised either before the trial Court or before the first appellate Court. Therefore, it is not open for the plaintiff to raise this issue for the first time before this Court in second appeal. Even otherwise also there is no merit in the argument raised by the learned Counsel for the appellant. The documents sought to be relied on by the plaintiff i.e., Exs.A-24 and A-25 would not be relevant for establishing the factum that he did not resign at all. On the other hand Exs.B-1 to B-14 and B-19 clinchingly prove that the appellant, in fact, resigned the Mahantship.

It is argued by the learned Counsel for the appellant that the exhibits marked by the defendants would not constitute a legal proof. In support of his contention, he relied on the Judgment in Sait Tarajee Khimchand and Others Vs. Yelamarti Satyam alias Satteyya and Others, .. In the said case, it was settled that the plaintiff did not prove the documents filed by him and that there is no reference to these documents in the Judgment. Marking of exhibits does not dispense with the proof of the document. However, in the instant case, the documents were marked and they were proved by cogent evidence. Hence, the plaintiff cannot take support from the Judgment of the Supreme Court. On the other hand Sri Suryanarayana Murthy contends that the burden of proof does not lie on the defendants. On the other hand, the parties having adduced the evidence on the issue, it has to be decided on appreciation of the evidence. He relied on the decision rendered in Smt. Prem Lata Vs. Arhant Kumar, . In the said decision the Supreme Court observed that "the question of burden of proof is not important when the parties had adduced evidence and the appellate Court had appreciated the evidence.

He also relied on Kalwa Devadattam and Others Vs. The Union of India (UOI) and Others, in which the Supreme Court observed in Para 11, which reads as follows:

"The question of onus probandi is certainly important in the early stages of a case. It may also assume importance where no evidence at all is led on the question in dispute by either side. In such a contingency the party on whom the onus lies to prove a certain fact must fail. Where however evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place and truth or otherwise of the case must always be adjusted on the evidence led by the parties".

In Ramji Dayawala and Sons (P) Ltd. Vs. Invest Import, . the Supreme Court observed that where both parties have led evidence, the burden of proof would assume secondary importance.

In Alapati Sivaramakrishnayya v. Alapati Kasi Viswanadham 1956(2)An.W.R.1004, a Division Bench of this Court while dealing with the case of signature on blank-paper held that if a person denies that he has written a letter which contains his signature, then surely he must prove what he alleges i.e., that the letter was got upon a blank piece of paper containing the signature, as also the circumstances in which he happened to put his signature on such piece of paper.

In V.D. Jhangan Vs. State of Uttar Pradesh, ; the Supreme Court while dealing with the case under Prevention of Corruption Act, held that the burden of proof lying upon the accused u/s 4(1) of Prevention of Corruption Act will be satisfied, if he establishes his cases by preponderance of probability as is done by a party in civil proceedings. It is not necessary that he should establish his case by the test of proof beyond a reasonable doubt.

In Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others, the Supreme Court held as follows:

"The expression "burden of proof" really means two different things. It means some times that a party is required to prove an allegation before judgment can be given in its favour; it also means that on a contested issue of the two contending parties has to introduce evidence. The burden of proof is of importance only where by reason of not discharging the burden which was put on it, a party must evetually fail. Wherever, however, parties have joined issue and have led evidence and the conflicting evidence can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic."

In Masjid Kacha Tank, Nahan Vs. Tuffail Mohammed, , the Supreme Court while dealing with a case of eviction held that u/s 115 of CPC the High Court is not justified in reappredating the evidence and in interfering with the findings of the lower Court. It can only be done in case findings of facts are perverse or there has been non-application of mind.

In the instant case, both parties have full knowledge of the issue and contested the same by adducing oral and documentary evidence. Therefore, the contention that the Courts below unreasonably placed the burden on the plaintiff to prove that the resignation was not voluntary and that it was fabricated cannot be accepted. As already stated by me, the Courts below have thoroughly discussed the issue with reference to the evidence, both oral and documentary. Hence, I am constrained to reject the argument of the learned Counsel for the appellant on this issue.

No other points have been urged by the learned Counsel for the appellant/plaintiff.

In the result, the Second Appeal No. 12 of 1992 is dismissed with costs.