UDAI TARA CHOWDRAIN Vs. KHAJA ABDUL GANI

JUDGEMENT

(1.) This was a suit under the provisions of section 230 of the Code of Civil Procedure to recover possession of a certain jalkar, of which the plaintiff alleged she had been in possession as part of her share of Pergunna Attia, and had been dispossessed by the defendant. The plaintiff's contention was that she was one of the 8-anna shareholders of one part of the mehal, and that the defendant was one of the 8-anna shareholders of the other part of the mehal; that this mehal had been partitioned in 1838; that by that partition the jalkar mehal was left in the joint possession and enjoyment of all the shareholders of the 16 annas, and so had been held by them ever since; and that the particular fisheries of which plaintiff sought to recover possession were part of that mehal. The defendant does not seem to have denied the partition in question, nor that the jalkar mehal at the time of that partition was left and had been ever since held ijmali; but he averred that the particular jalkar for which the plaintiff sued was not a part of the jalkar mehal created by the partition of 1838 and held ijmali; but had been created since the partition by the diluvion of one of his villages in the mehal, and had been ever since held by him as proprietor.

(2.) Both the Courts below have found that the plaintiff has failed to establish her case, and have dismissed her suit.

(3.) In special appeal it is urged that the Courts below have proceeded on a wrong theory and thrown the burthen of proof upon the wrong person, and two cases are quoted, Govind Chunder Shaha v. Khaja Abdul Gunny 6 W.R., 41 and Korunamayi Chowdrain v. Joy Sundur Chowdhry (1864) W.R. 267. In both these cases it seems to us, there was no contention but that the jalkars in question were a part of the original jalkar mehal or had sprung out of it, or were additions to it. However the first question that arises and was in issue between the parties was whether the two particular jalkars in dispute were a part of the jalkar mehal held ijmali by the plaintiff and the defendant as such part of such mehal. In such a case the burthen of proof was clearly upon the plaintiff to start her case, by showing that the particular jalkar in question was a part of the jalkar mehal held in ijmali by the parties; and as pointed out by Mr. Gregory, it was especially necessary in this case that the plaintiff should prove the possession which she set up, because a suit under the provisions of section 230 can only proceed on the ground that the plaintiff was bona fide in possession of the property which she sues to recover, while here we have a distinct finding of the lower appellate Court to the effect that "there is an entire want of evidence as to plaintiff's possession."