ORDER
P.C. Jain, J.
1. The legal representatives of deceased defendant Champalal have filed this revision petition against the order dated 22-3-1996 passed by the learned Addl. Civil Judge [Junior Division] No. 2, Jodhpur whereby the application filed under Order 14, Rule 5 read with Section 5, C.P.C. was dismissed.
2. The plaintiff-non-petitioner filed a suit for ejectment against the defendant on the ground of reasonable and bona fide necessity. The plaintiff alleged that he requires the suit premises for the residence of his son reasonably and bona fide. He has averred that the suit premises is situated in Umed Chowk, Jodhpur and this suit property is being looked after by its Mahant Govind Ram. The suit was decreed by the learned trial Court vide its judgment dated 24-2-1990.
3. Thereafter, the defendant-petitioner filed an appeal. The defendant-petitioner also moved an application under Order VI, Rule 17 read with Section 151, C.P.C. The defendant pleaded that the suit property is a public trust and its valuation is worth lakhs of rupees. Its annual income also exceeds the limit of Rs. 3,000/-. The suit property, being public trust requires registration and without registration, the suit is not maintainable. It was further pleaded that the defendant made enquiries in the Devasthan Department and ultimately he came to know that the Devasthan Department has also treated the suit premises to be a public trust and ordered for making an entry in the Register under Section 21 of the Rajasthan Public Trusts Act, 1959 [for short 'the Act']. The defendant also pleaded that in view of the provisions contained in Section 29 of the Act, the suit of the plaintiff was not maintainable.
4. According to the defendant, Mahanat Govind, Ram filed Suit No. 646 of 1978 in the Court of Addl. Munsif No. I, Jodhpur for cancellation of entry ordered to be made in the Register under Section 21 of the Act and along with that suit, an application under Order 39, Rules 1 and 2, C.P.C. was also filed. The above application has been dismissed on 15-10-1980. Against that an appeal was filed before this Court, which was also dismissed on 6-11-1989. Even the revision petition filed against the above order was also dismissed on 28-11-1989 by this Court.
5. However, considering this aspect of the matter, the learned first appellate Court allowed the application of the defendant under Order VI, Rule 17 read with Section 151, C.P.C. on payment of costs of Rs. 2,000/-. Thereafter, the plaintiff also filed replication to the amended written statement filed by the defendant.
6. On the pleadings of the parties, the learned lower Court framed the following Issues, which when translated into English read as under :
(1) Whether the plaintiff is a public temple, which has been constructed by the funds provided by the general public and whether the costs of this temple exceeds Rs. 30,000/- and its annual income also exceeds Rs. 3,000/- and therefore, it is a public trust and has not been registered so far?
(2) Whether the suit of the plaintiff is not maintainable under Section 29 of the Public Trusts Act, 1959?
(3) Whether the suit of the plaintiff is not maintainable as no notice as required by Section 72 of the Rajasthan Public Trust Act, 1959 was given?
(4) Whether the suit property is not a personal property of Mahant Govind Ram and as such, he has no right to present the present suit for the reasonable and bona fide necessity of his son.?
(5) Relief.
7. Since the burden of proof was wrongly placed on the defendant, the defendant-petitioners moved an application under Order 14, Rule 5 read with Section 151, C.P.C. and prayed that burden of proving Issues Nos. 1, 2, 3 and 4 may be placed on the plaintiff. This application was opposed by the plaintiff. However, after hearing both the parties, the learned trial Court dismissed the above application vide its order dated 22-3-1996 but made necessary amendment in Issue No. 4 and the burden of proving the same was placed on the plaintiff. Hence this revision petition.
8. I have heard Mr. R. R. Nagori, the learned counsel appearing for the defendant-petitioners and Mr. R. K. Thanvi, the learned counsel appearing for the plaintiff-non-petitioner and have very carefully gone through the record of the case.
9. The learned counsel appearing for the petitioners has contended that the learned lower Court has committed a grave jurisdictional error in passing the impugned order. He has submitted that there is no dispute that the above property is in the name of Thakurji Shri Gopalji. There is also no doubt that Devasthan Department has already declared the above property to be a public trust and ordered that an entry to this effect be made in the Register as provided under Section 21 of the Act. Though the plaintiff has filed a suit for cancellation of the above entry and the same has been decreed by the trial Court but the defendant-petitioner has filed an appeal which is still pending. The plaintiff has not denied that the valuation of the suit is more than Rs. 30,000/-. It is also not in dispute that the above property has not been registered as public trust. Thus, in view of the above facts, the burden should have been placed on the plaintiff to prove that he had a right to file the suit even without getting the suit property registered as public trust.
10. On the other hand, the learned counsel appearing for the plaintiff-non-petitioner has supported the impugned order of the learned trial Court. He submitted that perhaps it cannot be disputed that the valuation of the property is more than Rs. 30,000/- but it is very important to note that the plaintiff-non-petitioner has not admitted that the above property is a public trust. He further submitted that when the Assistant Registrar ordered for making an entry in the Register under Section 21 of the Act, the plaintiff challenged the same by filing a suit in the Court of the learned Addl. Civil Judge [Junior Division] No. 6, Jodhpur and that suit has been decreed vide judgment dated 13-5-1997. Hence there is no admission on the part of the plaintiff regarding above property that it is a public trust. The issues framed by the learned trial Court are, therefore, correct and the onus of proving the same is also in accordance with the law.
11. I have considered the rival contentions made at the bar. It is very important to take note of the fact that the plaintiff has nowhere admitted that the above property is a public trust or was constructed with the public funds. The plaintiff vehemently assailed the order of making an entry in the Register under Section 21 of the Act passed by the Assistant Commissioner and maintained by the Commissioner by filing the above civil suit. The above civil suit was decreed. The learned counsel for the petitioners by filing a rejoinder has submitted that though the above suit was decreed, the petitioner have filed an appeal which is pending in the Court of the learned Additional District Judge No. 2, Jodhpur bearing Civil Appeal No. 65 of 1997.
12. The general rule as to the onus of proof and the consequent obligation is, that the proof of any particular fact lies on the party who alleges it, not on him who denies it. The burden of proof in any particular case depends on the circumstances in which the claim arises. In general, the rule which applies is et qui affirmat, no el qui negat incumbit probatio. It is an ancient rule founded on considerations of good sense and should not be departed from without strong reasons. In other words, the Issue must be proved by the party who states an affirmative, not by a party who states a negative. This rule is derived from the Roman Law and is supportable not only upon the ground of fairness, but also upon that of greater practical difficulty which is involved in proving a negative than in proving an affirmative.
13. In the instant case, the defendant has raised the legal pleas that the suit of the plaintiff is not maintainable because it is a public trust and has not been registered. The defendant also raised a plea regarding maintainability of the suit on the basis of Section 29 of the Act. It was also been contended by the defendants that since no notice under Section 72 of the Act was served before institution of the suit, this suit is not maintainable. All these facts are affirmative. At no stage of the proceedings, the plaintiff has admitted any fact which can lead to an inference that the suit property is a public trust. Merely because of the valuation, the property cannot prima facie be considered to be a public trust.
14. The term 'public trust' has been defined in Section 2(11) of the Act and it reads as under :
Section 2(11). 'Public Trust' means an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math dharmada or any other religious or charitable endowment or institution and a society formed either for a religious or charitable purpose or for both.
15. It may be stated that the plaintiff has not admitted any of the ingredients of 'public trust' as defined in Section 2(11) of the Act Hence, all these facts have been affirmatively asserted by the defendant and denied by the plaintiff and thus, the onus of proving these facts lies on the defendant. In this view of the matter, I hold that the learned trial Court has taken a correct view that the onus of proving these issues lies on the defendant. Thus, the impugned order passed by the learned trial Court does not suffer from any jurisdictional error whatsoever.
16. In the result, I find no substance in this revision petition and the same is hereby dismissed.