Ramparichan Singh vs Biranji Prasad Singh and others

Ross, J.—This is an application by the defendant for revision of the decree of the Subordinate Judge of Muzaffarpur reversing the decision of the Munsif of Motihari in a suit brought by the plaintiffs, opposite party, for damages. The plaintiffs claimed to recover half the price of the timber of certain trees out by the defendants. The defendants pleaded that they were entitled to the timber. They relied on the entry in the record of rights which showed that they had the entire rights in the timber, and also on the village note. The grounds of the present application are that the learned Subordinate Judge erred in disregarding the village note and in throwing the burden of proof of the custom alleged by the defence on the defendants in spite of their production of the record-of-rights. But the learned Vakil for the opposite party argues that even if the learned Subordinate Judge was wrong, revision will not lie on such grounds as these; and that in fact he is right in the view he has taken of the law. With regard to the village note I see no reason why it should not have been considered as a piece of evidence and given such weight as the Court was prepared to attach to it and the Subordinate Judge in my opinion was wrong in leaving it out of consideration altogether. But on this ground alone it would not be proper to interfere in revision. In this case however, the view that the Subordinate Judge has taken has in my opinion involved him in an error in procedure. The Munsif held that as the record-of rights was in favour of the defence in recording their rights in the trees; it was for the landlord to establish his claim. The Subordinate Judge was of opinion that as the general law was in the landlord''s favour the entry in the record of rights was not enough to establish the custom alleged by the defence in view of the fact that it was for them to prove the custom. He therefore rightly observed that "there can be no doubt that the procedure adopted was faulty" and that "the respondents, (that is the defendants), should have been called upon to prove the custom of appropriating the entire timber. That was not done." Now, if the Subordinate Judge took that view he ought clearly to have remanded the case in order to give the defendants an; opportunity to adduce evidence sufficient to discharge the burden of proof which he thought lay upon them. The Munsif had taken a different view of the burden of proof, and the proof tendered by the defence was according to that view. When the Subordinate Judge threw the burden otherwise, he ought certainly to have given the defence a further opportunity to digcharge it. He therefore erred in procedure and this is a sufficient ground for revision of his judgment. But in my opinion he was clearly wrong in his view of the burden of proof. The general law is in the landlord''s favour. The tenant has to prove an exception to the general law in the form of a local custom entitling him to the timber of the trees. He does this by producing the record-of-rights and this throws the burden on the landlord, (See Janki Kuer v. Wali Muhammad, 61 IC 420). In my opinion the view taken in this case by the Munsif was correct and that of the Subordinate Judge was wrong. This application must therefore be allowed and the decree of the Subordinate Judge set aside and the appeal remanded for rehearing. The hearing fee is assessed at one gold mohur. Costs will abide the result.