Judgment:
Sanjiv Khanna, J.
1. The petitioners, Mst. Mastura Sultan (who expired after filing of the present petition) and her children have filed the present writ petition for quashing the order dated 26th May, 1982 passed by the Custodian General of evacuee property dismissing their revision petition under Section 27 of the Administration of Evacuee Property Act, 1950 (hereinafter referred to as the Evacuee Act, 1950, for short) and upholding the order dated 14th February, 1980 passed by the Assistant Custodian (Judicial), inter alia, holding that the property in their occupation bearing No. 4487/92A/52, Basti Hazrat Nizamuddin, Delhi is an evacuee property. The petitioners have also prayed for declaration that the property in their occupation is not an evacuee property and other incidental relief's.
2. In the year 1947, partition of India saw migration of a large number of persons. These migrants left behind moveable and immovable assets, when they migrated to settle down either in India or the newly formed Pakistan. To provide and allot assets to the migrants who had settled in India, out of pool of assets left behind by those who had migrated to Pakistan, legislations were enacted.
3. The two relevant legislations with which we are concerned with, are East Punjab Evacuee (Administration of Property) Act, 1947 (hereinafter referred to as the East Punjab Act, 1947) and the Evacuee Act which repealed East Punjab Act, 1947 with effect from 14th July, 1950. Section 4 of East Punjab Act, 1947 provides for automatic vesting of evacuee property by operation of law. The said section reads:
4. Vesting of evacuee property in the Custodian.-
All evacuee property situated within the Province shall vest in the Custodian for the purpose of this Act and shall continue to be so vested until it is returned to the owner in accordance with the provisions of Section 12.
4. Section 8 of the Evacuee Act, 1950 reads:
8. Vesting of evacuee property in the Custodian-(1) Any property declared to be evacuee property under Section 7 shall be deemed to have vested in the Custodian for the State,-
(a) In the case of the property of an evacuee as defined in Sub-clause (i) of CI. (d) of Section 2, from the date on which he leaves or left any place in a State for any place outside the territories now forming part of India;
(b) In the case of the property of an evacuee as defined in Sub-clause (ii) of Cl.(d) of Section 2, from the 15th day of August, 1947; and
(c) In the case of any other property; from the date of the notice given under Sub-section (1) of Section 7 in respect thereof.
(2) Where immediately before the commencement of this Act any property in a State had vested as evacuee property in any person exercising the power of Custodian under any law repealed thereby, the property shall, on the commencement of this Act, be deemed to be evacuee property declared as such within the meaning of this Act and shall be deemed to have vested in the Custodian appointed or deemed to have been appointed for the State under this Act, and shall continue to so vest:
Provided that where at the commencement of this Act there is pending before the High Court, the Custodian or any other authority for or in any State any proceeding under Section 8 or Section 30 of the Administration of Evacuee Property Ordinance, 1949 (12 of 1949), or under any other corresponding law repealed by the Administration of Evacuee Property Ordinance, 1949 (12 of 1949), or under any other corresponding law repealed by the Administration of Evacuee Property Ordinance, 1949 (27 of 1949), then notwithstanding anything contained in this Act or in any other law for the time being in force, such proceeding shall be disposed of as if the definitions of 'evacuee property' and 'evacuee' contained in Section 2 of this Act had become applicable thereto.(2-A) Without prejudice to the generality of the provisions contained in Sub-section (2), all property which under any law repealed hereby purports to have vested as evacuee property in any person exercising the powers of Custodian in any State shall, notwithstanding any defect in, or the invalidity of, such law or any judgment, decree of any Court, be deemed for all purposes to have validly vested in that person, as if the provisions of such law had been enacted by Parliament and such property shall, on the commencement of this Act, be deemed to have been evacuee property declared as such within the meaning of this Act and accordingly, any order made or other action taken by the Custodian or any other authority in relation to such property shall be deemed to have validly and lawfully made or taken.
(3) Where any property in a State belonging to a joint stock company had vested in any person exercising the powers of a Custodian under any law previously in force, then nothing contained in Clause (f) of Section 2 shall affect the operation of Sub-section (2), but the Central Government may, by notification in the official Gazette, direct that the Custodian shall be divested of any such property in such manner and after such period as may be specified in the notification.
(4) Where after any evacuee property has vested in the Custodian any person is in possession thereof, he shall be deemed to be holding on behalf of the Custodian and shall on demand surrender possession of it to the Custodian or to any person duly authorized by him in this behalf.
5. Section 8(1) of the Evacuee Act, 1950 stipulates that any property declared to be an evacuee property under Section 7 shall be deemed to have vested in the Custodian - (a) in the case of property of an evacuee as defined in Sub-clause (i) of Clause (d) of Section 2, from the date on which he leaves or left any place in a State for any place outside the territories now forming part of India; (b) in the case of property of an evacuee as defined in Sub-clause (ii) of Clause (d) of Section 2, from the 15th day of August, 1947 and; (c) in the case of any other property, from the date of the notice given under Sub-section (1) of Section 7 in respect thereof.
6. Section 8(2) of the Evacuee Act, 1950 protects the automatic or deemed vesting, which has taken place before the commencement and enforcement of the Evacuee Act, 1950. A conjoint reading of Section 4 of the East Punjab Act, 1947 and 8(2) of the Evacuee Act, 1950 elucidates that a property, which stands automatically vested with the Custodian under the East Punjab Act, 1947 in spite of repeal of the said Act shall continue to vest and is deemed to be vested in the Custodian of the State. In view of Sub-section 4 to Section 8 of the Evacuee Act, 1950 any person in possession of an evacuee property is deemed to holding the property on behalf of the custodian.
7. Learned Counsel for the petitioners has relied upon Section 7A of the Evacuee Property Act, 1950, which reads
7A. Property not be declared evacuee property on or after 7th May, 1954.
Property not be declared evacuee property on or after 7th May, 1954. Notwithstanding anything contained in this Act, no property shall be declared to be evacuee property on or after the 7th day of May, 1954:
Provided that nothing contained in this section shall apply to- (a) any property in respect of which proceedings are pending on the 7th day of May, 1954 for declaring such property to be evacuee property; and (b) the property of any person who, on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or the fear of such disturbances had left on or after the 1st day of March, 1947, any place now forming part of India, and who on the 7th day of May, 1954, was resident in Pakistan: Provided further that no notice under Section 7 for declaring any property to be evacuee property with reference to Clause (b) of the preceding proviso shall be issued after the expiry of six months from the commencement of the Administration of Evacuee Property (Amendment) Act, 1954 (42 of 1954).Explanation I.-A person shall be deemed to have been resident in Pakistan on the 7th day of May, 1954, within the meaning of Clause (b) of the first proviso, if he was ordinarily residing in Pakistan before that date, notwithstanding that he was temporarily absent from Pakistan on that date. Explanation 11.-A person who had left India for Pakistan before the 7th day of May, 1954, on the authority of a passport or any other valid travel document issued by any competent authority in India, and who was temporarily residing in Pakistan on that date, shall not be deemed to have been resident in Pakistan on that date within the meaning of Clause (b) of the first proviso. Explanation 111.-A person who had left Pakistan for India on or after the 18th day of July, 1948, and who was in India on the 7th day of May, 1954, shall, unless he came to India under a valid permit for permanent return or for permanent resettlement, issued under the Influx from Pakistan (Control) Act, 1949 (23 of 1949), be deemed to have been resident in Pakistan on the 7th day of May, 1954, within the meaning of Clause (b) of the first proviso.
8. Section 7A of the Evacuee Act, 1950 was inserted by the Administration of Evacuee Property (Amendment) Act, 1954 with effect from 7th May, 1954. It is a non obstante clause which stipulates that notwithstanding anything contained in this Act, no property shall be declared to be an evacuee property on or after the 7th day of May, 1954. The proviso protects pending proceedings as on 7th May, 1954. The second part of the proviso applies to property of a person, who became an evacuee on or after the 1st day of March, 1947 and who on the 7th day of May, 1954 was resident of Pakistan. In such cases, for declaring any property to be an evacuee property, notice under Section 7 was required to be issued within six months from the commencement of the Amendment Act.
9. Section 7A of the Evacuee Act, 1950 was interpreted in Kundan Lal and Anr. v. Hari Ram : AIR 1981 DELHI 144 and it has been held that the deeming provisions of automatic vesting under the East Punjab Act, 1947 continue and apply inspite of the said amendment. Reference was made to Haji Esmail Noor Mohammad and Co. and Ors. v. Competent Officer, Lucknow and Ors. : AIR 1967 SC 1244, and it was observed as under:
15. The legal position therefore is this. There is no question of issuing further notice or making a declaration that a property is evacuee property under Section 7 of the Act if the property has automatically vested in Custodian. As the Supreme Court has said in H. Esmail v. Competent Officer (supra) Section 7 only applied to properties other than those which have been vested automatically in the Custodian. Such a vesting cannot be reopened under the Central Ordinance or the Central Act, for it has already vested thereunder by a fiction.' Therefore, no declaration that property was evacuee property was necessary under the Act. Notwithstanding the repeal of earlier law of automatic vesting the property continued to vest in the Custodian without any action under Section 7. Such action is necessary only in cases where the property had not already vested under the provisions of the repealed ordinance. (See Asst. Custodian v. B.K. Agarwala : AIR 1974 SC 2325).
16. We cannot agree with the learned judge that Section 7A of the Act applied to this case and that the vestment was bad because the property was declared evacuee after 7-5-1954, Section 7 of the Act does not apply to property which had already vested under State law and which under Section 8 (2) is deemed to be evacuee property. Section 7A is in the nature of a proviso to Section 7 placing limitation on its operation.
10. In view of the aforesaid reasoning, the first contention of the petitioners that no proceedings under the Evacuee Act, 1950 were initiated till 1976/1980 and, therefore, bar on Section 7A of the Evacuee Act, 1950 applies has to be rejected as without merit. In case the property in question was deemed to be an evacuee property under the East Punjab Act, 1947, the fact that no proceedings were initiated prior to the date/time specified in Section 7A of the Evacuee Act, 1950 would not make any difference and the deeming or automatic vesting provisions of the East Punjab Act, 1947 have to be given full effect to. The provisions relating to automatic vesting have to be given full play and are saved by Section 8(2) of the Evacuee Act, 1950.
11. For deciding whether a property is an evacuee property, two questions have to be asked and answered. Firstly, whether a particular person was an evacuee or not and secondly, whether the property in dispute belonged to him.
12. It is accepted and admitted that one Mr. Sayed Laik Ali Nizami (hereinafter referred to as Mr. Laik Ali) and his wife Razia Amtul Fatima had migrated to Pakistan at the time of partition. They were evacuees. In the written submissions filed by the petitioners it is stated that Mr. Laik Ali was son of Mr. Sayed Shamshad Ali Nizami and grandson of Mr. Sayed Irshad Ali Nizami. The petitioner Mst. Mastura Sultan, was wife of Mr. Sayed Ashfaq Ali Nizami, who had expired on 7th March, 1970. Mr. Sayed Ashfaq Ali Nizami was son of Mr. Sayed Sujat Ali Nizami and grandson of Mr. Sayed Irshad Ali Nizami. Mr. Sayed Laik Ali and Mst. Mastura Sultan's husband had a common ancestor, namely, Mr. Sayed Irshad Ali Nizami but were not members of immediate family. It is also a case of the petitioners that they are Peerzadas i.e. one of the descendents of the family of Saint Hazarat Nizamuddin Aulia.
13. In view of the aforesaid admitted factual position, the only question which requires examination is whether Mr. Laik Ali was the owner of the property in question and, therefore, on migration to Pakistan, the said property automatically became an evacuee property.
14. It is not disputed by the respondents that the petitioners were/are owners of property which was earlier given number 4486, Basti Hazrat Nizamuddin, Delhi. As far as ownership of property No. 4486 is concerned, though the petitioners do not have any document of title, there is no dispute that the same belonged to the petitioners' grand-father and then petitioners' father and now to the petitioners and did not belong to Mr. Laik Ali. It is the case of the respondents that the petitioners are also in occupation of another property No. 4487, Basti Hazrat Nizamuddin, Delhi and this property was owned by Mr. Laik Ali/Razia Amtul Fatima.
15. It is the contention of the respondents, as held in the impugned orders, that the property bearing No. 4487 was adjacent to the property of the petitioners and the same was subsequently given municipal No. 92A and then renumbered as No. 52. The respondents claim that the petitioners were/are in possession of two properties 4486 and 4487, renumbered 92 and 92A and now renumbered as 53 and 52. The petitioners dispute the said allegation and assert in negative.
16. Proceedings under the Evacuee Act, 1950 were initiated by issue of notice in the year 1977, nearly 30 years after partition, on a complaint made by Mr. Jang Ali, who has expired and is represented by his legal heirs. Mr. Jang Ali was a tenant in the property and was paying rent to the predecessors of the petitioners. He was evicted after a bitter litigation under the Delhi Rent Control Act, 1958.
17. There is no document of title in respect of any property owned by Mr. Laik Ali in Basti Nizamuddin or any document even relating to property No. 4487 Basti Nizamudin and who was owner of the said property. In the absence of documents of title and lack of and non availability of evidence/records and due to lapse of time and delay, the authorities have examined the question of burden of proof at great length in the impugned orders. Learned Assistant Custodian (Judicial) in his Order dated 14th February, 1980 while examining the core issue has held that the burden to prove and establish ownership of the disputed house/portion thereof was on the petitioners and they had failed to produce evidence and documents to prove and establish ownership. The relevant portion of his Order reads as under:
After it is admitted by the Petitioners themselves that (1) Shri Laik Ali and his wife Razia Amtul Fatima was residing in Basti Nizamuddin and (2) were their close relations and that they even resided for sometime in the disputed property No. 92-A/52 and that they were also owner of some property in Basti Nizamuddin the least that was expected of them was to establish which was the property owned by Shri Laik Ali before 1947. They have miserably failed to do so. Rather their evidence is evading and conflicting. One of the witness stated that he sold to a Muslim while the other said that the transfer was to a local person. They were consistent only in stating that it was at some distance near I mama Bara. Even if it was so, in a proceeding of this nature and persisting for such long period of time, they were expected to find out the number of the house, so nearby and the name the correct transferee thereof and produced some of the witnesses who resided in that property of near about the same. Nothing of the sort was attempted. As against two witnesses produced by the petitioners from Basti Nizamuddin, Respondents produced many more. Even the Petitioners admitted that Laik Ali and his wife resided in the suit property, although they contended that it was for a brief period. Their main emphasis during the long drawn out proceedings was that House No. 4487 did not exist and their counsel Shri Mohd. Mian went on to the extent to state at the bar that he had no objection to the taking over of House No. 4487. The crux of the petitioner's case was that property No. 92-A/52 was a part of House No. 4486 (old) and not a separate property. In the revision petition before the Dy. C.G. they had stated that Shrimati Amtul Fatiama or Laik Ali did not own any property in Basti Nizamuddin. From the evidence dealt guite at length in para 8 above, it is now fully established that they did own a property. The sale of property either to a Hindu or to a Muslim has not been established before me. In the above context, I have to see whether the petitioner established their ownership of the disputed house/ portion which bore No. 92-A for limited period and has No. 52 (new). The petitioners did not produce any document of ownership. They admit that the property belonged to their grand- father and was inherited by their father and they in turn claim its ownership through their father. The documents from the Municipal record establish the ownership of their father and ...(sic) 1928 for property No. 4486 and not for property No. 4487. Normally property No. 4487 can only be presumed to be contiguous or next to the property 4486 and not at a distance. Evidence would be necessary for a presumption or proof in the case of context on this issue. Thus when it is not disputed that Laik Ali and his wife Raiza Amtul Fatima did reside in the house/portion now in occupation of the respondents and the respondents claim that its earlier number was 4487, the presumption goes in their favour. Specially in the face of the missing pages 3 & 4 pertaining to R.D.C.R. for the year 1958-59 and most of the record pertaining to this period not being available as mentioned by P.W. 1, P.W.2 and P.W. 4. Therefore, I hold the first issue under para 6 i.e. whether the petitioners are the owners of property No. 4487/92-A/52 against them and in favour of the respondents specially when the first reference to double numbers being allotted after 1947 is not disputed and the sudden increase in the rateable value from Rs. 49/- in 1959-60 vide Exbt. A-1/20 to Rs. 162/- vide Exbt. A-1/21 in the year 1961-62 has not been specially explained or proved to have been for some other reason'.
18. Learned Assistant Custodian (Judicial) had proceeded on the basis that it was for the petitioners to show, establish and furnish details of the property in which Mr. Laik Ali and Ms. Razia Fatima were residing in Basti Hazrat Nizamuddin and also prove sale of the property to a third person. Assistant Custodian (Judicial) has observed that it was expected from the petitioners that they would find out the number of the house owned by Mr. Laik Ali or Ms. Razia Fatima and furnish correct name of the transferee and produce some witnesses in support thereof. There was no evidence of transfer. Even on the question whether or not there was any house by number 4487, burden was on the petitioners and it was observed that property No. 4487 could be presumed to be contiguous or next to property No. 4486 and the missing pages and records, support the presumption. Double numbers 92 and 92A and 52 and 53A indicate that the property Nos. 4486 and 4487 were separate and increase in property tax, though reason for increase was un-known, establishes that the petitioners had occupied property No. 4487 also.
19. Deputy Custodian General, in his order dated 26.5.1982, while dealing with the revision petition under Section 27 of the Evacuee Act, 1950 has again proceeded on the basis that burden was on the petitioners to establish and identify the property in dispute and prove that the same was part of their property No. 4486, Basti Hazrat Nizamuddin, New Delhi. He has observed as under:
13. I have heard the learned Counsels of all the parties at considerable length and the petitioners patiently and have also gone through the records of the case as well as Memo of grounds of revision petition and have also gone through the elaborate/detailed impugned order of the then learned Assistant Custodian (Judl.) and I am of the view that the petitioners have no case as they have failed to establish the identity of the property in dispute as part of their property No. 4486, Basti Nizamuddin, New Delhi on the basis of evidence led by them. No pre-partition document has been placed on the record of proved in support of their contention. There is no explanation as to the reasons and circumstances leading to allocation of two numbers qua the one and the same property. Therefore, rather there is sufficient force in the contention of the learned Counsels for the Respondents that it is the merger of two properties in 1961-62 which led a sudden spurt in the rateable value from Rs. 54/- to Rs. 162/- and this pin-points to the existence of the two separate properties. To my mind it seems that presumption of the property belonging to Shri Laik Ali has not been rebutted/opposed by the petitioners as in the face of their explicit admission of Laik Ali owning the property in Basti Nizamuddin and his having sold away the same and no evidence has been led nor any documentary proof in the form of sale-deed in favour of the buyer and in view of the inability of their witnesses to identify the number of the property. In a litigation of this type, the onus was heavily on them to discharge which they could do so by best evidence in support of their case. Neither the purchaser of the property has been produced nor any sale-deed of the property having allegedly been sold away by Shri Laik Ali has been produced and proved nor the number of the property owned by Shir Laik Ali has been disclosed. Thus the presumption in this case against them is conclusive. In this context, the evidence of the petitioners and his witnesses after appraisal is not reliable trustworthy and does not inspire confidence. Further more it is clear from the testimony of Shir Pyare Lai a Municipal Clerk that entry of No. 92 against property No. 4486 at serial number 771 indicated that the said property was allocated this number alone. There is also inherent contradiction in the testimony of the petitioner qua the allocation of No. 52 and 53 in the year 1951 (As per evidence of Shir Waris Ali one of the petitioners) before the Assistant Custodian (Judl.) in the year 1980 and variant posture of Shri Pyare Lai showing allocation of No. 52-53 in the year 1958 not supported, from the Municipal records. The existence of property No. 4487 is not denied by the Clerk of the Municipal Corporation Delhi who only deposed that file of property No. 4487 was not available and his corroborating from the Assessment File that No. 52 was a separate building occupied by Shri Jang Ali and No. 53 was a separate building. His further deposition about the missing pages as co-relative to Nizamuddin property and admission of allocation of one Municipal number to one property, is a pointer to the fact that the petitioners had nothing to do with the property in dispute which had validly been taken over under the Law of Automatic Vesting in the name of Muslim Evacuee. Their variant postures in the Basic pleadings and in their subsequent testimony leads to a positive presumption which is conclusive that disputed property does not belong to the petitioners and this is supported from the testimony of Shri Waris Ali who admits that property No. 92-A was not theirs and like-wise the testimony of Shri Rashid Ali Nizami that Shri Laik Ali remained in the property No. 92-A or 52 in the year 1980.
20. Deputy Custodian General has observed that no pre-partition document to establish identity of the property in occupation and possession of the petitioners and burden was on the petitioners to support their contention. There was no explanation why two numbers were given for the same property and/or for increase in the property tax. Presumption that the property belonged to Mr. Laik Ali was not rebutted/and discharged by the petitioners in the face of the express admission that Mr. Laik Ali owned a property in Basti Hazrat Nizamuddin. It is further observed that the petitioners were required to rebut the presumption that Mr. Laik Ali was owner of the property No. 4487/92-A/52 in Basti Hazrat Nizamuddin, Delhi and had not led evidence nor had produced any document to prove that Mr. Laik Ali was owner of a different property and had sold the same to a third person. It has been further observed that onus was heavily on the petitioners and they should have discharged the same by leading best evidence in support of their stand but had failed to do so as they did not state details/number of the property owned by Mr. Laik Ali and transfer/sale made by him. Therefore, he observed that the presumption against the petitioner was conclusive.
21. It is an admitted position that property No. 4486 is very old and even in respect of the said property no document of title is available. What is available is the municipal record in which the name of the owner and property number has been mentioned. Property No. 4486 was earlier owned by the grand-father of the petitioners and then by the petitioners' father before his death and subsequently was owned by the petitioners. The petitioners have claimed that property No. 4486 was given two numbers 92 and 92-A and then re-numbered as 52 and 53. The petitioners had summoned Mr. Pyare Lai, Record Keeper, New Delhi Municipal Council, Green Park, New Delhi who had brought the assessment records relating to the years 1935-51 in respect of house No. 4486. He had stated that as per the register maintained by them, there was no mention of property No. 4487 and there was nothing on record to show that there was any assessment file relating to the said property. In the cross examination, the said witness had stated that there was nothing on record to rebut or support the contention that there existed property No. 4487 which was renumbered as 92-A and then 52 and this was a separate property. Thus, there is not even a single document on record to show and establish that there was a property by the number 4487 which was subsequently renumbered as 92A and then 52 and the same was included and became part of the property which was earlier given number 4486. There is no evidence and material why property No. 4486 was given two numbers but this was for the municipal authorities to explain and answer. Faced with these difficulties, the issue and question had been decided by the respondent authorities below by placing the burden of proof on the petitioners and presumptions presumed against the petitioners. The authorities have erred in placing the burden on the petitioners and proceedings on the said basis. The presumptions drawn are also incorrect and contrary to principles of common law. It was for the respondent authorities to establish that there was a separate property by the number 4487 and the said property was given a new number 92A and then 52. Respondent authorities had to establish that this property was owned by Mr. Laik AN and therefore an evacuee property in occupation of the petitioners. The respondent authorities have erred in placing burden, drawing presumptions and then holding that by default of the petitioners, it stands proved that there was a property with No. 4487 which was owned by Mr. Laik AN and the same was/is in occupation of the petitioners/ their predecessors.
22. The authorities under the Evacuee Act, 1950 had vast and wide powers to summon and examine witnesses and requisition documents/records. In the present case, there is not even a single official document in which the name of Mr. Laik AN or his wife is mentioned as owner of the property No. 4487, Hazrat Nizamuddin Basti, New Delhi. In these circumstances, and bereft of any documentary proof, the respondent authorities have proceeded and examined the issue by putting the entire burden on the petitioners and by drawing presumptions.
23. Burden of proof under the Common Law is on the party which asserts a fact in affirmative. Unless the law requires to the contrary the burden of proof should not be thrown on the party which asserts in negative. In Narayan Govind Gavate v. State of Maharashtra : (1977) 1 SCC 133 the Supreme Court has referred to General/Common law principles on burden of proof as under:
16. In Phipson on Evidence (11th Edn.) (at p. 40, para 92), we find the principles stated in a manner which sheds considerable light on the meanings of the relevant provisions of our Evidence Act:As applied to judicial proceedings the phrase 'burden of proof has two distinct and frequently confused meanings: (1) the burden of proof as a matter of law and pleading - the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of adducing evidence.
It is then explained:
The burden of proof, in this sense, rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. 'It is an ancient rule founded on considerations of good sense, and it should not be departed from without strong reasons.' It is fixed at the beginning of the trial by the state of the pleadings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it, and never shifting in any circumstances whatever. If, when all the evidence, by whomsoever introduced, is in, the party who has this burden has not discharged it, the decision must be against him.
17. The application of rules relating to burden of proof in various types of cases is thus elaborated and illustrated in Phipson by reference to decided cases (see p. 40, para 93):
In deciding which party asserts the affirmative, regard must of course be had to the substance of the issue and not merely to its grammatical form, which later the pleader can frequently vary at will, moreover a negative allegation must not be confounded with the mere traverse of an affirmative one. The true meaning of the rule is that where a given allegation, whether affirmative or negative, forms an essential part of a party's case, the proof of such allegation rests on him; e.g. in an action against a tenant for not repairing according to covenant, or against a horse-dealer that a horse sold with a warranty is unsound, proof of these allegations is on the plaintiff, so in actions of malicious prosecution, it is upon him to show not only that the defendant prosecuted him unsuccessfully, but also the absence of reasonable and probable cause; while in actions for false imprisonment, proof of the existence of reasonable cause is upon the defendant, since arrest, unlike prosecution, is prima facie a tort and demands justification. In bailment cases, the bailee must prove that the goods were lost without his fault. Under the Courts (Emergency Powers) Act, 1939, the burden of proving that the defendant was unable immediately to satisfy the judgment and that that inability arose from circumstances attributable to the war rested on the defendant. But it would seem that in an election petition alleging breaches of rules made under the Representation of the People Act, 1949, the court will look at the evidence as a whole, and that even if breaches are proved by the petitioner, the burden of showing that the election was conducted substantially in accordance with the law does not rest upon the respondent. Where a corporation does an act under statutory powers which do not prescribe the method, and that act invades the rights of others, the burden is on the corporation to show that there was no other practical way of carrying out the power which would not have that effect.
24. The Supreme Court also made reference to Sections 101 and 102 of the Evidence Act, 1872 which read:
Section 101. Burden of proof. - Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Section 102. On whom burden of proof lies. - The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
25. The aforesaid provisions incorporate principles of Common Law that burden of establishing a case is on the party which comes to the Court and asserts a fact and not on the party which is defending the proceedings unless the statute or some principle requires otherwise.
26. In Narayan Govind Gavate (supra) the Supreme Court also drew distinction between burden of proof and 'onus propandi' which is placed upon one of the parties in accordance with the appropriate provisions of the law applicable to various situations. Right to begin evidence follows 'onus propandi'. It assumes importance in the earlier stages of a case. In Anil Rishi v. Gurbaksh Singh : (2006) 5 SCC 558, it was held that difficulties which may be faced by a party to the lis can never be determinative of the question as to upon whom the burden of proof would lie. Right to begin follows onus probandi. It assumes importance in the early stage of a case. Onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in 3 ways:- (1) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later (2) to make that of establishing a proposition as against all counter-evidence (3) an indiscriminate use in which it may mean either or both of the others. The elementary rule of Section 101 of the Evidence Act 1872, is inflexible. Under Section 102, the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.
27. Burden of proving facts normally rests on the party which asserts in affirmative and makes a prayer and not upon the party who denies it in negative. This ancient rule is founded on consideration of good sense and should not be discarded without a strong reason. Negative is usually incapable of proof and involves greater technical difficulties. (See, Sarkar on Evidence, 15th Edition, 2004 reprint, llnd Volume, 1445).There are exceptions to these rules but these come into operation when there is a provision of law which requires to the contrary or otherwise under common law an exception has been created.
28. The impugned orders passed by the respondent authorities are contrary to the aforesaid rule that a party which initiates the proceedings; approaches the forum and asserts the affirmative must prove their case. In the present case, the dispute is whether Mr. Laik Ali was owner of the property No. 4487 and therefore the property is an evacuee property. The burden of proof is on the respondent authorities to establish that Mr. Laik Ali was owner of the property No. 4487. It is not for the petitioners to establish that the property was not an evacuee property. The 'onus probandi' may shift from one party to the other but the burden of proof does not shift and rests on the shoulders of the authorities who have asserted a claim in affirmative. The respondent authorities have infact erred and have proceeded on the wrong basis that the burden of proof was on the petitioners or their predecessors and number of presumptions against them have been drawn and relied upon. This has resulted in miscarriage of justice, material irregularity and an error in the decision making process. Proceedings under the Evacuee Act, 1950 have adverse consequences on the affected party and are quasi judicial in nature as an adverse order can deprive a person of his property and therefore the respondent authorities have to proceed and correctly apply the principles of burden of proof to reach their conclusions.
29. Proceedings under the Evacuee Act, 1950 were initiated pursuant to complaints made by Mr. Jang AN. Mr. Jang AN had actively participated, argued and even cross examined witnesses in the said proceedings and his legal heirs are also respondents in the present proceedings. Predecessor in interest of the petitioners had initiated eviction proceedings against Mr. Jang Ali under Sections 14(1)(b), (e) and G) of the Delhi Rent Control Act, 1958. One of the issues and defences raised by Mr. Jung Ali in the said eviction case was that he was in occupation of property No. 4487, which was now being given a new No. 52 and, therefore, he was not a tenant in occupation of the property No. 4486 now given the new number No. 53. By a detailed judgment dated 17th December, 1975, the Additional Rent Controller examined the documentary and oral evidence produced on record and came to the conclusion that the property No. 4486 was earlier given a single No. 92 and then 52 and 53. Property with new number 52 was part of property No. 4486. Rent Controller observed that the property No. 4486/92-92 A/ 52-53 belonged to Mr. Sayed Ashfaq Ali Nizami and the said property was given a new Nos. 92 and then two parts of the property were given Nos. 52 and 53. It was also held that Mr. Jang Ali was a tenant and Mr. Sayed Ashfaq Ali Nizami was the owner. Appeals filed by Mr. Jung Ali were dismissed.
30. The respondent evacuee authorities were not parties in the proceedings under the Delhi Rent Control Act, 1958. Therefore, the said judgment does not operate as res judicata. However, at the same time, Mr. Jang Ali was a party to the said proceedings. Mr. Jang Ali is also the person responsible for initiation of proceedings under the Evacuee Act, 1950 and had participated in the proceedings before the authorities under the Evacuee Act, 1950. Principle of issue estoppel applies against Mr. Jang Ali and his legal representatives. I have referred to the said judgment to only show that the Rent Controller had reached a different conclusion on the basis of similar evidence as was produced before the respondent authorities under the Evacuee Act, 1950 by wrongly putting burden of proof on the petitioners. However, reliance placed by the counsel for the petitioners on Section 13 of the Evidence Act, 1872 and Tirumala Tirupati Devastanams, v. K.M. Krishnaiah : AIR 1998 Supreme Court 1132 is misconceived. The relevant portion of the said judgment reads as follows:
9. In our view, this contention is clearly contrary to the rulings of this Court as well as those of the Privy Council. In Srinivas Krishnarao Kango v. Narayan Devji Kango : AIR 1954 SC 379 speaking on behalf of a Bench of three learned Judges of this Court, Venkatarama Ayyar, J. held that a judgment not inter parties is admissible in evidence under Section 13 of the Evidence Act as evidence of an assertion of a right to property in dispute. A contention that judgments other than those falling under Sections 40 to 44 of the Evidence Act were not admissible in evidence was expressly rejected. Again B.K. Mukherjea, J. (as he then was) speaking on behalf of a Bench of four learned Judges in Sital Das v. Sant Ram : AIR 1954 SC 606 held that a previous judgment not inter partes, was admissible in evidence under Section 13 of the Evidence Act as a 'transaction' in which a right to property was 'asserted' and 'recognised'. In fact, much earlier, Lord Lindley held in the Privy Council in Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani ILR (1902) 29 Cal 190 (PC) that a previous judgment, not inter partes was admissible in evidence under Section 13 to show who the parties were, what the lands in dispute were and who was declared entitled to retain them. The criticism of the judgment in Dinomoni v. Brojo Mohini and Ram Ranjan Chakerbati v. Ram Narain Singh ILR 1895 Cal 533 by Sir John Woodroffe in his Commentary on the Evidence Act (1931, p. 181) was not accepted by Lord Blanesburgh in Collector of Gorakhpur v. Ram Sundar Mai : AIR 1934 PC 157.
31. The aforesaid observations deal with the question of admission of judgments as evidence of 'transaction' in which a right to property was 'asserted' or 'recognized' and not beyond what is contemplated by the said section as suggested by the counsel for the petitioners.
32. One, Mohd. Yahya had appeared as a witness summoned by Mr. Jang Ali in the Court of the Additional Rent Controller. The said witness had produced the alleged gift deed dated 25th December, 1939 of property No. 4487 purportedly executed by Mr. Laik Ali in favour of his wife. However, the Additional Rent Controller did not rely upon the gift deed. Photocopy of the said gift deed was produced and placed on record in the proceedings under the Evacuee Act, 1950. The said gift deed is not registered and there is doubt about the authenticity of the said document. Witnesses to the said document were not produced and examined. Mohd. Yahya had appeared before the authorities under the Evacuee Act, 1950 and had taken a completely different stand. He had also stated that his statement before the Additional Rent Controller was false and given at the behest of Mr. Jang Ali, who because of his political influence had put pressure on him. The Assistant Custodian (Judicial) has not discussed statement of Mohd. Yahya, observing that he had appeared after several notices and even notices were issued through police. He has further observed that Mohd. Yahya was not a reliable witness.
33. Counsel for the respondents had submitted that the oral evidence on record, proves and establishes that Mr. Laik Ali was residing in the property, which was given new No. 52 and that property Nos. 4486 and 4487 were different. Attention was drawn to the oral testimony of Mohd. Yamin, Mr. Nanka and even witnesses produced by the petitioners. On the other hand, contention of the counsel for the petitioners is that these witnesses create doubt and suspicion but do not establish that Mr. Laik Ali or his wife were owners of the property in question. It was for the respondent authorities to draw inferences and conclusions on the basis of oral evidence, without wrongly placing the burden of proof and drawing presumptions against the petitioners. I would have remanded the matter back to the authorities under the Evacuee Act, 1950 to reexamine the issues and questions on the basis of oral evidence, without putting burden on the petitioners, but refrain from doing so for two reasons. Firstly, the Evacuee Act, 1950 has been repealed and secondly, the matter is very old and earlier also the matter was remanded back by the Appellate Authority for recording of evidence etc. It is more than 60 years since partition and the petitioners have been in use and occupation of the property at least for the last 30 years after eviction order was passed against Mr. Jang Ali.
34. Accordingly the writ petition is allowed and writ of Certiorari is issued quashing the orders passed by the Assistant Custodian (Judicial) and the Deputy Custodian General under the Evacuee Act, 1950. No costs.