Bishun Pragash Narain Singh vs Sheosaran Teli

Dawson Miller, C. J.

In my opinion the decision of the learned Judge now under appeal was right. The plaintiff, the landlord, brought this suit against his tenants for a declaration that the entire timber of the trees upon the disputed holding belonged to him and not to the tenants.

The learned Munsif decided in favour of the tenants.

The Additional District Judge before whom the case came on appeal reversed that decision and decided in favour of the landlord.

On appeal to this Court the matter came before a single Judge who came to the conclusion that the District Judge had wrongly placed the onus in the suit. What happened was that the record-of-rights was in favour of the tenants and contained an entry to the effect that the trees belonged to the tenants. The Munsif came to the same conclusion and was no doubt influenced by the entry in the record-of-rights. When the matter came before the District Judge he was of opinion that the record-of-rights could not create any presumption against what he called the law of the land which gives to the landlord the full right in respect of the timber, and that in such circumstances the onus was upon the tenants to show some custom or circumstances curtailing that right. In my opinion there can be no doubt that the onus in the first instance in this case, were there nothing else, would be upon the tenants to establish that the trees belonged to them because, according to the ordinary law, the trees belong to the landlord. When they produced the record-of-rights I think that they discharged the burden of proof which was upon them and shifted that burden on to the shoulders of the landlord. Then the question arises whether the landlord has sufficiently discharged the onus thus cast upon him. He contends that he has sufficiently discharged that onus merely by proving that the general law of the land is that he is entitled to the trees. That, however, is not, in my opinion, sufficient in the present case to entitle him to say that he has discharged the burden. It must be presumed that when the Assistant Settlement Officer heard the parties and arrived at the conclusion that the trees belonged to the tenants he had taken into consideration the question of whether there was or was not a custom whereby the right in the trees belonged to the tenants, or whether possibly they acquired that right in some other way, as by some agreement between the landlord and themselves. We do not know, because the evidence is not before us, what the reasons were which induced the Assistant Settlement Officer to form the opinion which he did, but one is entitled to assume that at all events he had good grounds for forming that opinion until the contrary is proved, and it does not seem to me that it is sufficient to set aside the presumption arising from the record-of-rights merely to show that in most cases the trees and the right to the trees would belong to the landlord and to deny that there are exceptional cases. It may well be that the Assistant Settlement Officer came to the conclusion that there was a custom proved and if that is so then it seems to me clearly that the onus is upon the landlord to show the contrary and it is not for the tenants again to come here and prove a custom. I think, therefore, that the learned Judge in sending this case back to the Judge of the District Court was perfectly right, because instead of considering whether that entry in the record-of-rights had been rebutted or not the learned District Judge assumed that because by the general law the trees belonged to the landlord, therefore, there was nothing more to be said and that the onus was then upon the tenants to prove that this was an exceptional case. In my opinion that decision was wrong for the reasons I have already given and the decision of the learned Judge of this Court was right and I think that this appeal should be dismissed with costs.

Bucknill, J.

I agree.