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3. In 'Dulai Dei v. Chema Das', S. A. 156/37 (8 Cut. L. Notes 6), his Lordship Fazl Ali J. stated as follows:

"It is now well-settled that a Chandnadar himself has only a non-transferable interest & it follows that a Dar-Chandnadar also cannot transfer his right".

This appears to justify fully the assumption made by the learned Judge of the lower appellate Ct in the passage above extracted from his judgment. It is true that there is no discussion of this question in the judgment of Fazl Ali, J., but this was so presumably because the legal position was considered so well established that it could not admit of a contrary argument. It has no doubt been held in 'Johabaj Khan v. Sri Krishna De', AIR (23) 1936 Pat, 29: (15 Pat 187 FB) that the burden lies upon the landlord to prove usage or custom in proof of his right to eject a Chandnadari tenant if he wants to maintain ejectment against him. But so far as transferability of the Chandnadari right or the DarChandnadari right is concerned, no case has been brought to my notice which conflicts with the view above stated by his Lordship as being the settled law. On the other hand, cases in 'Chintamani Raut v. Sri Ram Chandrakar', AIR (21) 1934 Pat 422 : (149 IC 805); 'Mt Haliman Bibi v. Mohd. Tajamul Hussain', AIR (26) 1939 Pat 504: (185 IC 250) and 'Safiruddin v. Tarak Nath', AIR (36) 1949 Pat 180: (14 Cut LT 12) establish the correctness of the proposition so far as the Chandnadars are concerned, & it would follow 'prima facie' that the same is the law as regards Dar-Chandnadars who are merely under-tenants of Chandnadars. In fact, & in fairness to Mr. Das Gupta, learned counsel for the applt, it must be said that he did not seriously maintain that, apart from proof of custom in any particular case, there are any reported decisions showing that a Chandnadari or Dar-Chandnadari right is transferable or that there is any general & well-recognised custom in this behalf.

31. Even if the majority view in this case were to prevail the pltf cannot succeed in the absence of proof of custom or usage that he is entitled to evict. It is the admitted case of both parties that deft 2 could transfer with the consent of the landlord. Whether a violation of this covenant would entail eviction is a matter for proof. The pltfs have adduced no evidence to show that by the mere act of transfer by deft 2, they acquired the right to evict. Irrespective of the provisions of the Amendment Act X (10 of 1946,) I am therefore, of the view that the pltfs suit should be dismissed. I would accordingly allow the appeal with costs.

Even if it be assumed that the expression 'successor-in-interest' would include a transferee, the mere definition of a Chandnadar in Schedule (3) as including his successor-in-interest does not necessarily make such a tenancy transferable. The transferability must depend on the other provisions of the O. T. Act & so far as a Chandnadar is concerned the only other relevant provision is Sub-section (2) of Schedule 36 which expressly says that incidents of tenancy of a Chandnadar shall be regulated by local custom & usage. My learned brother Panigrahi J. has himself recognised transferability to be an incident of tenancy (Para 11, Para 25 of this report) & consequently the right of a Chandnadar to transfer his holding can arise only by proof of local custom or usage & it cannot be inferred from the definition contained in Schedule (3). The danger of inferring transferability from the mere fact that the definition of a particular class of tenants is inclusive of his successor-in-interest will be apparent if the definition of the expression 'raiyat' in Schedule (2), O. T. Act is scrutinised. In that sub-section a raiyat has. been defined as including his successor-in-interest. But merely because of this definition it was never contended at any time that a raiyati interest was necessarily transferable. Such transferability was conferred only by the other sections of the Act such as Sections 30 A & 31. The Legislature found it necessary to insert those sections by the Amending Act of 1938 (Orissa Act VIII (8) of 1938) because prior to the passing of that Act a raiyati interest was not freely transferable notwithstanding the definition given in Schedule (2). A similar definition of the word 'raiyat' was given in the Bengal Tenancy Act when, it was enacted in 1885. But it was never disputed that till the passing of the Amending Act of 1928 & the insertion of new sections (Ss. 26 to 26 J.) to that Act a raiyati interest was not transferable except on proof of custom. I must therefore with great respect, dissent from the view that merely because the definition of a Chandnadar includes his successor-in-interest a chandna tenancy must be held to be transferable.

44. In para 17 (Para 31 of this report) of his judgment, my learned brother Panigrahi J. seems to have cast on the pltf the burden of proving custom or usage entitling him to evict the applt. There is however no authority for such a proposition. The pltf is the Chandnadar landlord & it is well settled that in any suit brought by a landlord for eviction the burden, in the first instance rests on the landlord to prove his title as landlord but once this is either proved or admitted the burden shifts on the deft to show that his tenancy is not precarious but that it entitles him to continue in occupation. This principle is based on several English decisions & also on 'Nainapillai v. Ramanathan', 47 Mad 337: (AIR (1.1) 1924 PC 65) which have been referred to in the F. B. decision of the Patna H. C. reported in 'Johabaj Khan v. Sri Krishna De', AIR (23) 1936 Pat 29: (15 Pat 187 FB). In the present case the pltf's position as Chandnadar is unchallenged. The plea taken by deft 1 was that the Darchandnadar (deft 2) had a permanent right by virtue of long possession of over 40 yrs. No question of any transferable right of a Darchandnadar by custom or usage was even, alleged. The trial Ct disbelieved the deft's story of possession for more than 40 yrs. The burden of proving non-evictability either on the ground of acquisition of permanent tenancy through possession over a long period or on the ground of custom or usage must obviously lie on the deft. It is true that in 'Johab v. Sri Krishna', 1936 Pat 29: (15 Pat 187 FB), the Pull Bench held that so far as chandna tenancy was concerned the burden of proof of custom of evictability would shift on the landlord by virtue of the special implications arising out of Schedule 4, O. T. Act. But there is absolutely no justification or authority for extending this principle to a Darchandnadar much less to the lessee of a Darchandnadar.