JITENDRA NATH ROY Vs. ABDUL HAKIM

JUDGEMENT

(1.) In this case the plaintiff Abdul Hakim brought a suit against the defendants Jitendra Nath Roy and others claiming a declaration of his title to the lauds which are the subject-matter of the suit and for the recovery of possession of those lands after cancellation of certain under- tenures held by the defendants. The plaintiff also claimed recovery of possession of the lands held by them. Put quite shortly the plaintiff's case was that he had purchased the patni under which the lands were held at an auction sale held under the provisions of the Bengal Patni Taluk Regulation (8 of 1819). The plaintiff alleged that the under-tenures held by the defendants were put an end to as a result of the sale of the lands to him. The matter was originally tried in the Court of the Subordinate Judge of Faridpur. In the course of his judgment the learned Subordinate Judge observed: The defendants have failed to prove that these disputed jotes were created before the patni, and ho found that the plaintiff had title in the patni taluk and had acquired the right which he claimed against the defendants and accordingly the Subordinate Judge made a decree in favour of the plaintiff on all the points raised by him. It is to be noticed that that Subordinate Judge Mr. Gopaldas Ghose seems to be of opinion that it lay upon the defendants to show that the lands with which they were concerned were created before the patni was created. The case was then taken on appeal to the Court of the District Judge of Faridpore and there the Additional District Judge Mr. N.E. Guha came to the conclusion that the Subordinate Judge was wrong in casting the onus upon the defendants. He then went on to say: It was further pointed out that there was no evidence on the record that the patni was created in 1245 and the learned pleader for the respondent also was unable to place the particular evidence upon which the statement was based. In considering the evidence on the point I was of opinion that the materials on the record were insufficient to come to the conclusion that the tenures or jotes claimed by the defendants were incumbrances.

(2.) He then found that no specific issue on this point had been framed in the Court below and he remanded the case under Order 41, Rule 25, Civil P. C, for the determination of two issues, the second of which was put in this way: Is the interest of the contesting defendant in the tenures an encumbrance within the meaning of the Patni Regulation and is the plaintiff entitled to avoid the tenures or jotes ?

(3.) On remand the case came before a different Subordinate Judge of Faridpur Mr. Natabehari Ghose. In the course of his judgment ho said: It is not contended that the burden of proof is not on the plaintiff. The plaintiff has therefore to show either that the tenures were created after the creation of the patni or that they were not created with the permission of the zamindar, and he came to this conclusion: From the evidence it has not been proved by the plaintiff that the jotes did not exist before the creation of the patni, nor has it been shown by the plaintiff on whom the burden of proof lay, that the right of creating the tenures was not vested in the holder in the written engagement under which the taluk was held.