ACHARJI AHIR Vs. HARAI AHIR

JUDGEMENT

(1.) This appeal raises a question of burden of proof in the following circumstances: The plaintiff, who is the appellant before us, brought this suit, out of which this appeal has arisen, for a declaration of title, and, in the alternative, for possession over three kinds of land. We are no longer concerned with two kinds, but are concerned only with the third kind. It was an occupancy holding consisting of several plots of land recorded in the revenue papers in the name of defendant 1 Gopal. The plaintiff's case was that when these lands were acquired in the name of Gopal the family was a joint one and each and every member of the family, including the plaintiff, who is Gopal's brother's son, had a share in it. The plaintiff further says that there was a partition among the members of the family and certain plots were given to the plaintiff, but because of his possession he was recorded only as a subtenant. The result was that Gopal was able to eject plaintiff from those plots. We are no longer concerned with those plots, but the plaintiff's case remains that the occupancy holding now in question was a part and parcel of the joint family property.

(2.) The defence was that the occupancy holding was Gopal's own, and the plaintiff had nothing to do with the property. There was a plea of limitation also. The Court of first instance found in plaintiff's favour holding that the tenancy having been acquired while the family was joint it must be treated as a part of the joint family holding. The learned Judge also found that the plaintiff was participating in the family property, and it was not true, as the defendant alleged, that the suit was barred by limitation owing to the plaintiff having lost possession.

(3.) The defendant Gopal appealed, and the learned Subordinate Judge, who heard the appeal, thought that the ordinary presumption of Hindu law did not apply where a tenancy was concerned. He put the burden of proof on the plaintiff to show that the tenancy held in the name of Gopal had not been acquired by Gopal for his own purposes, and that Gopal had acquired it not only for his own benefit but for the benefit of the entire family. Starting with this point of view, the learned Judge discussed the evidence and came to the conclusion that the plaintiff had failed to discharge the burden of proof that lay on him.