MOHAMED AZSSAR ALI Vs. NASSIR MOHAMED AND OTHERS

JUDGEMENT

(1.) This was a suit for arrears of rent at enhanced rates. The defendants alleged that as regards one portion of the lands in suit they had relinquished it in Chaitra 1273, that is, previous to the year for which the arrears were claimed. In regard to the rest of the lands, the defendants alleged that they were rent-free. The lower appellate Court has dismissed the plaintiff's case.

(2.) In special appeal, it is urged that the Court was wrong, firstly in not throwing the onus upon the defendants.

(3.) As regards the first objection, the lower appellate Court has held that when the plaintiff sued for arrears of rent upon the lands in question, and when the defendant alleged, so far as regards the only lands of which he admitted and the Court has found possession, that they were rent-free, it was on the plaintiff to start his case by showing that he had before received rents from those lands. This judgment of the lower appellate Court seems to us to be in strict accordance with Hurryhur Mookerjee v. Gomanee Kazee Mar. 523, and is correct. Beebee Ashruffunnissa v. Umung Mohun Deb Roy 5 W.R. Act X, Rul. 48, Nehal Chand Mistree v. Surry Persaud Mundul 8 W.R. 183 (184), and Rajah Suttochurn Ghosal v. Mohesh Chunder Kilter 3 W.R.C.R. 178 on which the pleader for the special appellant relies, are all cases in which the defendant held lands of two descriptions, principally mal, but partly alleged lakhiraj; and in these cases it was held that as the allegation of lakhiraj was evidently an after-thought, and as the greater portion of the lands was admittedly mal, so it was for the defendant to prove his allegation that the balance of the lands he held was lakhiraj. But without stating whether we concur in those decisions that is not the case here. Hence the Judge has found that the ryot has relinquished all the lands that were mal, and that the only land that he now holds are those which he alleges to be lakhiraj.