Patna High Court
Bhaiyan Sundarbas Kueri And Anr. vs Khawas Dilwar Sahu on 30 July, 1919
Equivalent citations: 52IND. CAS.701, AIR 1920 PATNA 358
JUDGMENT Das, J.
1. This appeal arises out of the judgment of the Judicial Commissioner of Ranchi. The suit was by the appellant for khas possession of certain lands specified in the plaint. The defendant contested the suit on the ground that those lands were his raiyati. holdings.
2. It appears that the defendant took a lease of a village called village Bethi within which the lands in dispute are situate. The dependant's case is that previous to the lease he acquired an occupancy right in the lands in dispute. The Record of Rights was against the defendant.
3. The lower Appellate Court has come to the conclusion that the defendant has some raiyati lands within the lands in dispute but the lower Appellate Court, being of opinion that the plaintiff has not been able to show which land is the raiyati land of the defendant has dismissed the plaintiffs suit altogether.
4. It is contended on behalf of the plaintiff first of all that the finding of the lower Appellate Court is unsustainable in law. He says that the Record of Rights is in his favour and the evidence was insufficient to rebut the presumption arising from the Record of Rights. In our opinion the finding of the lower Appellate Court on this point is a finding of fact. It must, therefore, be held that the defendant has in fact some raiyati land within the lands in dispute,
5. The next question is one of importance, namely, whether the onus is on the defendant to show which of his lands are raiyati and which are not. The learned Vakil on behalf of the plaintiff contends that as the proprietor of the lands, he is entitled to khas possession of every portion of the lands in dispute except such in respect of which the defendant may be able to establish some sort of title. The lower Appellate Court has taken the view that it was for the plaintiff to prove his title to the land. It appears to us that there is very high authority in favour of the appellant's argument. In the case of Rajah Sahib Ferhlad Sein v. Doargapersaud Tewarree 12 M.I.A. 286 at p. 331 : 2 Suth. P.C.J. 225 : 2 Sar. P.C.J. 429 : 20 E.R. 347 the Judicial Committee said as follows:
The appellant is the Zemindar; as such he has a prima facie title to the gross collections from all the Mouzahs within his Zemindari. It lay upon the respondents to defeat that right by proving the grant of an intermediate tenure.
6. In the case of Ram Monee Mohurrir v. Aleemoodeen 20 W.R. 374 Couch, C.J., said as follows:
The plaintiff then had made out a prima facie title to the possession of the land. The defendant, in fact, did not dispute that the land was the plaintiff's, and was ready to pay him rent, but he alleged that he had a right to continue to occupy the land. The case was of such a nature that it was necessary for the defendant to show that he had such a right. The plaintiff had shown that he was prima facie entitled to the possession, and unless the defendant had a tenure which would entitle him to keep the possession, the plaintiff ought to have had judgment to recover possession.
7. It seems to us, therefore, that the title of the plaintiff being admitted, it was for the defendant to identify the land which he claims as his raiyati land. The onus was clearly on the defendant. That being our view we would allow the appeal, set aside the judgments and decrees of the Courts below, and decree the plaintiff's suit.
8. The plaintiff is entitled to have his costs throughout.
Coutts, J.
9. I agree.