LAL MAMMUD TALUKDAR Vs. AYEJUDDI SHEIKH

JUDGEMENT

(1.) We think that this case must go back to the Court of first instance for re-trial.

(2.) The defendant is in possession of the land and the plaintiff sued for declaration of his title and for recovery of possession. But as the defendant stated that the plaintiff was his benamdar, the Court below held that "unless the defendant could show some title, he was a mere trespasser and he was, therefore, bound to prove that the plaintiff was his benamdar before the case could be tried upon its merits."

(3.) The defendant never admitted the title of the plaintiff and as he was the person in possession of the property, it was for the plaintiff to prove that he, the defendant, was not the owner, see Section 110 of the Evidence Act, Huri Ram v. Raj Coomar Opadhya 8 C. 759 : 4 Ind. Dec. (N.S.) 490 and Mookto Keshee Debee v. Anundo Chunder Chattopadhya 2 C.L.R. 48.