Nityanund Roy vs Banshi Chandra Bhuiyan and Others

The Plaintiff, who is the purchaser of an estate at a Revenue sale, brought this suit under the provisions of sec. 37 of Act XI of 1859, to eject the Defendants from certain lands within the estate which they were holding without any protected interest. The Defendants claimed to hold the land as a subordinate taluq which had been in existence and in the possession of themselves and their predecessors since the time of the permanent settlement. They put in a document as to the exact nature of which the District Judge seemed to be somewhat doubtful. He describes it either as a copy of a public register kept in the Collector''s office, or as a copy of a return submitted by the former proprietors of the estate, and he held that it, coupled with the other evidence, showed that the taluq was in existence in the year 1160, corresponding to the years 1798-99, and that it was fairly therefore presumable that it had existed from the time of the permanent settlement. The learned counsel for the Appellant has called in question the decision of the District Judge, in so far as it depends upon the document to which we have referred, but neither the document nor any copy of it is now with the record, and if the Appellant wished to question the correctness of the conclusion of the District Judge, he ought to have seen that the document was forthcoming and that it was translated and placed before us as part of the Paper-book.

We are not, therefore, in a position to say that the document ought not to have carried the weight which the District Judge has attributed to it, and we must accept his finding that the evidence proves that this taluq was in existence in 1798-99, that is to say, five years after the date of the permanent settlement. It was then contended that even accepting this fact as established the case must succeed in the absence of proof on the Defendant''s part that the taluq was in existence at the date of the permanent settlement, and that that fact not having been proved, the Court was not justified in drawing any presumption in the Defendant''s favour.

The question as to the burden of proof to be placed on the parties in cases of this description was discussed by their Lordships of the Privy Council in Forbes v. Meer Mahomed Hossein 20 W. B. 45 (1873). Their Lordships say that the right of a purchaser at a revenue sale in getting rid of encumbrances is such that he is in many cases allowed to have the benefit of a certain presumption, and by virtue thereof to throw the burden of proof on his opponent, the presumption being founded mainly upon the principle that every bigha of land is bound to pay and contribute to the public revenue, unless it can be brought within certain known and specified exceptions. They then say that in many eases a very heavy burden of proof has been placed upon the Defendants whose tenures have been questioned by auction-purchasers; and that they have had to prove, in circumstances of great difficulty, that their tenure did really exist at the date of the perpetual settlement, but that the course of modem legislation, and also of modern decision has, if not in the case of lakhiraj lands, at least in the case of under-tenants, to a considerable decree modified the rules laid down in the earlier cases, by giving force to the contrary presumptions arising from proof of long and undisturbed possession. It is found in this case that the taluq of the Defendants has been in existence and in the possession of themselves and their predecessors for a period of one hundred years. There is no proof, one way or the other, as to the precise date on which it came into existence, but so far as probabilities are concerned, it is, to say the least, as probable that it was created before the date of the permanent settlement, as that it was created within the five years which elapsed between that date and 1799. It may fairly therefore be said that the presumption which enabled the auction-purchaser, in the first instance, to place the burden of proof upon the Defendant, has been rebutted by the proof of Defendant''s long-possession and of the fact that the taluq was in existence one hundred years ago. No hard and fast rule can it seems to us be laid down as to where the burden of proof in a case like this begins or ends. Each case must be judged on its own facts, and accepting as correct the finding of the District Judge on the question of fact, we think it must be said that the Plaintiff''s ease fails. The appeal is dismissed with costs. The decision admittedly governs appeals Nos. 1703 to 1705 of 1897, all of which are likewise dismissed with costs.