Rajendro Kumar Bose and Others vs Mohim Chandra Ghose and Others

This is an appeal from the decision of the Judge of Faridpore, dated the 21st June 1892, dismissing the suit instituted by the Appellants. The Plaintiffs sued for khas possession of certain lands belonging to their estate. The Defendants claimed to hold these lands as Howladars under a howla given by the zemindars of the estate to which, the lands are said to belong.

In the first Court the suit was decreed, and it was directed that the Plaintiffs should obtain the shares claimed by them in the land in suit as demarcated in the Civil Court Amin''s Map.

The land in dispute may be said to be those described in the judgment of the lower Court as 12 M.I.A. 275 (1869) A, covering 117 bighas in Nyamater Kandi; 12 C.L.R 457 (1883) BB, 108 bighas in Tengramara Gualalap; 14 M.I.A. 152 (1871) C, 20 bighas, mere sand, of which the Defendants deny possession; then comes two pieces of land D, 79 bighas and E, 117 bighas which are said by the Defendants to have been formed after the institution of the suit, and cannot be claimed in the present litigation.

In regard to the plot marked BB, amounting to 188 bighas, the judge in the Court below has found that it does not belong to the Plaintiffs'' estate. So far therefore the suit must fail.

In regard to plot A, namely, 117 bighas in Nyamater Kandi and plot C, 20 bighas of mere sand, the Appellants waiving their right to mesne profits, the Respondents have consented that a decree should be given against them.

There still remain two plots D and E and so far as we can see it is impossible for us to finally decide the appeal in regard to them without having certain points cleared up and decided by the judge.

After the suit had been instituted the Defendants in November 1889 objected that these plots did not form part of the land covered by the claim. The civil Court Amin made his report in the following January; and after the trial came on for hearing in March the Defendants wished to adduce evidence to show that the lands comprised in these two plots were not the subject-matter of the suit; they were precluded from doing so To our minds this was a mistake : they should have been allowed to adduce evidence on the point raised before the Civil Court Amin and the case must therefore go back to have such evidence as the parties desire in regard to these plots recorded and their objections disposed of.

Surrounded by A, B and D is a central plot of land of about 200 bighas in area and in regard to it, there has been a great contest both in this Court and in the Court below. The judge in the first Court threw the onus of proof on the Defendants. He held that the Defendants were bound to show that the lands claimed fell within their howla; and that the Plaintiffs were not as in an ordinary action for ejectment bound to prove a prima facie case. In the case of Rajah Sahib Perhlad Sein v. Baboo Budhoo Sing 12 M.I.A. 275 (1869), it was decided that under the law as it then existed in this country if any person set up an intermediate tenure between the zemindar and the raiyat, it was for him to prove it, And it has been contended by the learned Advocate-General that when any person sets up an intermediate tenure, he is bound to prove not only that such a tenure exists, but also that the land in dispute actually falls within it. His argument is in support of the view taken by the judge in the first Court. On the other hand, Sir Griffith Evans has equally strongly contended that the decision in Rajah Sahib Perhlad Sein v. Baboo Budhoo Sing 12 M.I.A. 275 (1869) decides one point and one point only, that is to say, that when an intermediate tenure is set up, it ies on the person setting up the tenure to prove its existence, but if its existence is once proved, the question between the parties becomes one of parcel or no parcel, and the onus lies on the Plaintiff. It is clear to us that Rajah Sahib Perhlad v. Baboo Budhoo Sing''s 12 M.I.A. 275 (1869) ease does not of necessity lead to the conclusion that where an under-tenure is proved, the onus of proving that a parcel of land is within the tenure lies on the Defendant. It has been pointed out by the judge in the Court below that there are certain decisions of this Court which would appeal to be in favour of that view. All these eases were discussed in the case of Hridoy Kristo Mistri & ors. v. Nobin Chunder Sen & ors. 12 C.L.R 457 (1883) by a Division Bench of this Court, and the conclusion arrived at was that if the existence of a tenure be admitted, the dispute in regard to any plot of land then became a question of parcel or no parcel, and that the Plaintiff was bound to prove his case. We cannot see any difference between the case in which the Plaintiff admits the existence of the under-tenure and the case in which it is proved to exist although denied by the Plaintiff. However that may be, in the present case the existence of the howla is distinctly admitted; and we think we ought to follow the decision of this Court in Bhidoy Kristo Mistri v. Nobin Chunder Sen 12 C.L.R 457 (1883) But even if that decision had not already been arrived at by this Court, we think it is the only decision that could be given in accordance with the decision of their Lordships of the Privy Council. The rights of a zemindar over persons holding lands within the ambit of his zamindari have been a matter of renewed discussion in our Courts. First it was held that if a lakhirajdar or person claiming lands as a lakhirajdar within the ambit of a zamindari, it lay on him to prove his title, and not on the Plaintiff to succeed on the strength of his own title. Ultimately their Lordships of the Privy Council in the case of Hurryhur Mukhopadhya v. Madhab Chunder Babu 14 M.I.A. 152 (1871) declared that the zemindar was bound to prove a prima facie case before he could compel the Defendant to pay rent. In that case their Lordships said :--"The only other point to be decided on this appeal is, whether there is any peculiarity in this case which ought to take it out of the general rule. Their Lordships are of opinion that there is not. Mr. Doyne argued that the Defendants had admitted that the lands in question, with the exception of the small quantity no longer claimed, were within the Appellant''s estate. But such an admission is obviously not sufficient to meet the burthen of proof thrown upon the Plaintiff. It was at most an admission that the lands were within the ambit of the estate, not that they had over been mal lands. In fact, the Defendants strenuously asserted the contrary. The Appellant, therefore, having failed to give any evidence on the second trial in support of his amended plaint, the decree dismissing the suit was right." In the ease of Forbes v. Mahomed Hossein 12 B.L.R 210 (1873) the Plaintiff claimed to resume certain jalkars which, he said belonged to his zamindari. The Defendant claimed them as incident to a tenure which admittedly could not be "resumed" In that case their Lordships of the Privy Council said that the question resolved itself into one of parcel or no parcel, and that there was nothing that could relieve the Appellant, Plaintiff, from the ordinary rule of establishing his own case and making out a strong title in order to disturb a possession of very long duration. The same matter was discussed before their Lordships of the Privy Council in the case of Mohima Chunder Mozumdar v. Mohes Chancier Neoghi I.L.R 16 Cal. 473 (1888). In that case, as in this, it was urged that when the Plaintiffs were shown to be rival owners of the disputed land, it lay upon the tenants to show whether they were entitled to retain possession. To this their Lordships said :--" That, as a proposition of law, is one which hardly meets with the approval of their Lordships. This is in reality what in England would be called an action for ejectment, and in all actions for ejectment where the Defendants are admittedly in possession, and a fortiori where, as in this particular case, they had been in possession for a great number of yeas, and under a claim of title, it lies upon the Plaintiff to prove his own title The Plaintiff must recover by the strength of his own title, and it is the opinion of their Lordships that in this case the onus is thrown upon the Plaintiffs to prove their possession prior to the time when they were admittedly dispossessed and at some time within twelve years before the commencement of the suit, namely, for two or three years prior to the year 1875 or 1874, and that it does not lie upon the Defendants to show that in fact the Plaintiffs were so dispossessed." So far therefore, as we can see, the opinion of their Lorships of the Privy Council is in direct opposition to the conclusion arrived at by the judge in the first Court, and contended for in this case by the learned Advocate-General. But apart from the general proposition which we have already stated, there are circumstances in this case which would rebut any such presumption, if it arose. Admittedly the Plaintiffs have only 53 bighas in khas possession in that village they have by the present decree obtained more than double that quantity and it would seem impossible for us to hold that whereas they had held only 53 bighas of land they now could claim, in the face of that, a right to khas possession of 2 or 3 hundred. So far as this, central portion of land is concerned, the appeal is dismissed. But as we have said before in regard to plots D and E, the case must go back in order that evidence may be taken and the case decided on the objections raised in regard to them.