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1968 SCC OnLine SC 63 : (1968) 3 SCR 862 : AIR 1968 SC 1413 :

(1968) 2 SCJ 934

In the Supreme Court of India

(BEFORE J.C. SHAH, V. RAMASWAMI (I) AND G.K. MITTER, JJ.)

GOPAL KRISHNAJI KETKAR … Appellant;

Versus
MOHAMED HAJI LATIF & OTHERS … Respondent.
Civil Appeal No. 954 of 1965*, decided on April 19, 1968
Advocates who appeared in this case:
H.R. Gokhale, Senior Advocate (W.P. Oka, S.W. Oka and Ganpat Rai,
Advocates with him), for the Appellant;
Danial Latfi, Senior Advocate (Hardev Singh, Advocate with him), for
Respondents 3 & 4;
M.S.K. Sastri and R.H. Dhebar, Advocates, for Respondent 5.
The Judgment of the Court was delivered by
V. RAMASWAMI (I), J.— This appeal is brought, by certificate, from
the judgment of the Bombay High Court dated March 8, 1963 in First
Appeals Nos. 338 of 1960 and 422 of 1960.
2. On or about April 15, 1952 the appellant made an application to
the Deputy Charity Commissioner, Greater Bombay Region under
Section 18 of the Bombay Public Trusts Act (Bombay Act 29 of 1950),
hereinafter referred to as “the Act” for registration of the Peer Haji
Malang Dargah near Kalyan in the Thana District (hereinafter referred to
as the “Dargah”) without prejudice to his contention that the Dargah
was not a public trust to which the Act was applicable. On August 3,
1953 the Deputy Charity Commissioner made an order declaring that
the Dargah was a public trust and directed its registration as such. The
Deputy Charity Commissioner further held that among the properties of
the Dargah was the land bearing Survey No. 134 of Village Wadi on a
portion of which the Dargah is located. The Deputy Charity
Commissioner also directed that the appropriate court might be moved
for framing a scheme and appointing trustees. The appellant preferred
an appeal to the Charity Commissioner, Bombay under Section 70 of
the Act against the order of the Deputy Charity Commissioner. The
appeal was registered as Appeal No. 66 of 1953. Under orders of the
Government the appeal was heard by the Deputy Charity
Commissioner, Ahmedabad invested for that purpose with the powers
of the Charity Commissioner. By his order dated September 11, 1954,
the said Deputy Commissioner with appellate powers dismissed the
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appeal. Feeling aggrieved, the appellant filed an application under

Section 72 of the Act in the Court of the District Judge, Thana to set
aside the order of the Deputy Charity Commissioner with appellate
powers, contending that the Dargah was not a public trust, that Survey
No. 134 was not the property of the trust and that the appellant was a
hereditary trustee. The application was opposed by Respondents 1 to 4
who had intervened during the proceedings before the Deputy Charity
Commissioner and by the Charity Commissioner, Respondent 5 who
was also impleaded by the appellant in that application. The respondent
contended that the Dargah was a public trust and the land bearing
Survey No. 134 belonged to the trust and the appellant was not a
trustee of the Dargah. By his judgment dated April 26, 1955 the
District Judge, Thana held that the Dargah was a public trust but he left
the questions as to whether Survey Plot No. 134 belonged to the
Dargah or not and whether the appellant was a trustee or only a de
facto manager of the Dargah, open for decision in the suit which had
been filed by the Charity Commissioner. Against the order of the
District judge the Charity Commissioner filed an appeal in the High
Court, being Appeal No. 501 of 1955. The appellant also filed his cross
objections. The said appeal and cross objections were heard together
and the High Court by its judgment dated November 19, 1958
confirmed the finding of the District Judge about the public nature of
the trust and further held that the District Judge should have decided
whether Survey Plot No. 134 was the property of the Dargah or not and
whether the appellant was a trustee or a manager of the trust. The case
was therefore remanded back to the District Judge for deciding these
questions. Accordingly the District Judge reheard the matter and by his
judgment dated February 29, 1960 held, in the first place, that Survey
Plot No. 134 of village Wadi was not the property of the Public trust
Peer Haji Malang Saheb Dargah and that the appellant was the
hereditary trustee of the trust, his family being its hereditary trustee.
Against the judgment of the District Judge two appeals were filed in the
High Court. First Appeal No. 338 of 1960 was filed by Respondents 3
and 4 and First Appeal No. 422 of 1960 was filed by the Charity
Commissioner, Respondent 5. Both the appeals were heard together by
the High Court. By its judgment dated March 8, 1968, the High Court
allowed both the appeals. The High Court confirmed, in the first place,
the finding of the District Judge that the management of the Dargah
has been in the family of the appellant. With regard to ownership of
Survey Plot No. 134 on which the Dargah is situated, the High Court
held that the appellant was not the owner of that Plot but that it was
the property of the Dargah.
3. The main question presented for determination in this appeal is
whether the land comprised in Survey Plot No. 134 was the property of
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the Dargah or whether it belonged to the appellant.

4. It is necessary at this stage to set out the origin and history of the
Dargah. The Dargah has been in existence for over about 700 years. Its
origin is lost in antiquity but the Gazetteer of the Bombay Presidency
tells us that the tomb is that of a Muslim saint who came to India as an
Arab missionary in the thirteenth century. According to tradition, there
are two tombs in the Dargah in one of which is the dead body of a
Hindu princess and in the other tomb the dead body of the Muslim
saint. The fame of the saint was at height when the English made their
appearance at Kalyan in 1780. As they only stayed for two years, their
departure in the year 1782 was ascribed to the power of the dead saint.
The Peshwas were then in power in that region and after the departure
of the English they sent a thanks offering under the charge of one
Kashinath Pant Ketkar, a Kalyan Brahmin. It is said that the offering
sent by the Peshwas was a pall of cloth of gold trimmed with pearls and
supported on silver posts. The tomb was in disrepair and Kashinath
started to repair it and according to tradition was miraculously assisted
by the dead saint who, without human aid, quarried and dressed the
large blocks of stone which now cover the tomb. It appears that
Kashinath was not content to repair the tomb. He also wanted to
manage it and this led to a dispute with Kalyan Muslims who resented
Brahmin management of a Muslim shrine. Matters came to a head in
1817 and the dispute came before the Collector who declared that the
dead saint should settle the affair and that the only way of ascertaining
the saint's wishes was by casting lots. This was done and three times
the lot fell on the representative of Kashinath and so the matter ended
and Kashinath's representative was proclaimed guardian of the tomb.
5. On behalf of the appellant reference was made to the Area Book,
Ex. 66 of the year 1890. The entry shows the name of Laxmibai widow
of Govind Gopal Ketkar under the heading “bl eps ukao” (name of the
person). Exhibit 67 is the entry from the Phalani Book for the year 1897
and shows the land as “Kilyacha Dongar” and under the column “bl eps
ukao” is shown the name of Laxmibai widow of Govind Gopal. Exhibit
68 is of the same year from the revision Phalani containing similar entry
with the map attached. In Exhibit 70 the name of Laxmibai is shown as
“Khatedar” for the year 1906. In the remarks column there is an entry
“one built well, one pakka built masjid, one Dargah, one tomb”. Exhibit
71 is an entry for the year 1915 from Akar Phod Patrak and in the
column of “Kabjedar” the name of Rukminibai Hari appears with regard
to Plot 134. Thereafter, in the record of rights for the year 1913,
Exhibit. 76, the name of the predecessor of the appellant is shown. On
the basis of these entries it was submitted by Mr Gokhale that the
ownership of the Plot was with the appellant and not with the Dargah.
But there are important circumstances in this case which indicate that
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the appellant is not the owner of Survey Plot No. 134. Exhibits 64 and
65 are significant in this connection. Exhibit 64 is an entry from the
“Sud” in Marathi for the year 1858 in connection with Survey Plot No.
134 (Revisional Survey Number). The original survey number of this
Plot was 24 and it was known as “Kilyacha Dongar”. The total area is
shown to be 249 acres and 24 gunthas. It is shown as “Khalsa” land.
Kharaba is shown as 89 acres 24 gunthas and the balance of the area is
shown as 160 acres. In the last column the name of the cultivator is
not mentioned but it is shown as “Khapachi”. It is significant that the
name of the Ketkar family is absent from this record. No convincing
reason was furnished on behalf of the appellant to show why his name
was not entered in the “Sud”. It is also important to notice that the
appellant has furnished no documentary evidence to show how his
family acquired title to the land from the earliest time; there is no
sanad or grant produced by the appellant to show that he had acquired
title to the land. It further appears that the appellant's family did not
assert any title to the land at the time of the survey made in 1858;
otherwise there is no reason why its name was not entered in the “Sud”
of the year 1858. It is true that there are a number of entries
subsequent to the year 1890 and 1897 in which the Ketkar family is
shown as the “Khatedar” or the occupant but these entries are not of
much significance since the Ketkar family was in the fiduciary position
of a manager of the Dargah and was lawfully in possession of Survey
Plot No. 134 in that capacity. There is also another important
circumstance that the appellant has no lands of his own near Plot No.
134 and the nearest lands he owns are in Bandhanwadi which are
admittedly 3 ½ to 4 miles away from the top of the hill. There is also
the important admission made by the appellant in the course of his
evidence that there are 2 or 3 tombs behind the Musaferkhana. He
stated further that “there is no cemetery or burial ground in Survey No.
134”. But this evidence is in direct conflict with the statement of the
appellant in the previous case that “Round about the Dargah many
people die every year…. Anyone that died there, whether Hindu, Muslim
or Parsee if he has no heirs is buried there”. He also conceded that
there is one public tank known as “Chasmyachi Vihir” near the Dargah
and there are 5 wells near the Dargah and five boundaries “Aranas”
about one mile from the Dargah. Lastly, reference should be made to
the important circumstance that the appellant has not produced the
account of the Dargah income. In the course of his evidence the
appellant admitted that he was enjoying the income of Plot No. 134 but
he did not produce any accounts to substantiate his contention. He also
admitted that “he had got record of the Dargah income and that
account was kept separately”. But the appellant has not produced
either his own accounts or the account of the Dargah to show as to how
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the income from Plot No. 134 was dealt with. Mr Gokhale, however,
argued that it was no part of the appellant's duty to produce the
accounts unless he was called upon to do so and the onus was upon the
respondents to prove the case and to show that the Dargah was the
owner of Plot No. 134. We are unable to accept this argument as
correct. Even if the burden of proof does not lie on a party the Court
may draw an adverse inference if he withholds important documents in
his possession which can throw light on the facts at issue. It is not, in
our opinion, a sound practice for those desiring to rely upon a certain
state of facts to withhold from the Court the best evidence which is in
their possession which could throw light upon the issues in controversy
and to rely upon the abstract doctrine of onus of proof. In Murugesam
1
Pillai v. Manickavasaka Pandara Lord Shaw observed as follows:
“A practice has grown up in Indian procedure of those in
possession of important documents or information lying by, trusting
to the abstract doctrine of the onus of proof, and failing, accordingly,
to furnish to the Courts the best material for its decision. With
regard to third parties, this may be right enough — they have no
responsibility for the conduct of the suit; but with regard to the
parties to the suit it is, in Their Lordships' opinion, an inversion of
sound practice for those desiring to rely upon a certain state of facts
to withhold from the Court the written evidence in their possession
which would throw light upon the proposition.”
This passage was cited with approval by this Court in a recent
decision— Biltu Ram v. Jainandan Prasad2. In that case, reliance was
placed on behalf of the defendants upon the following passage from the
decision of the Judicial Committee in Bilas Kunwar v. Desraj Ranjit
3
Singh :
“But it is open to a litigant to refrain from producing any
documents that he considers irrelevant; if the other litigant is
dissatisfied it is for him to apply for an affidavit of documents and he
can obtain inspection and production of all that appears to him in
such affidavit to be relevant and proper. If he fails so to do, neither
he nor the Court at his suggestion is entitled to draw any inference
as to the contents of any such documents.”
But Shah, J., speaking for the Court, stated:
“The observations of the Judicial Committee do not support the
proposition that unless a party is called upon expressly to make an
affidavit of documents and inspection and production of documents
is demanded, the Court cannot raise an adverse inference against a
party withholding evidence in his possession. Such a rule is
inconsistent with Illustration (g) of Section 114 of the Evidence Act,
and also an impressive body of authority.”
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6. For these reasons we are of the opinion that the High Court was
right in reaching the conclusion that Survey Plot No. 134 belonged to
the Dargah and must be shown as the property belonging to the public
trust. This appeal is accordingly dismissed with costs. One hearing fee.
———
*
Appeal from the Judgment and Decree dated 8th March, 1963 of the Bombay High Court in
First Appeal Nos. 338 & 422 of 1960.

1
44 IA 98, at p 103

2
Civil Appeal No. 941 of 1965 decided on April 15, 1968

***$$$

3
42 IA 202, at p. 206

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