HIRALAL RANCHHODDAS Vs. SECRETARY OF STATE FOR INDIA

JUDGEMENT

(1.) This is a reference under Section 98, Clause (3), Civil Procedure Code, and Clause 36 of the Letters Patent, on a difference of opinion between Patkar and Barlee JJ., in First Appeal No. 421 of 1926.

(2.) The land in dispute is the Ahmedabad City Survey No. 466. Both the learned Judges agreed that it was Government land, which was leased to the predecessor-in-title of the plaintiffs-appellants. The Government records, which would have furnished a decisive proof as to the term of the tenure, were destroyed in the riots in Ahmedabad in 1921, and in regard to this term and the burden of proof the learned Judges differ, Mr. Justice Patkar holding that the onus is on the defendant-respondent, the Secretary of State, to prove that the term has ended and that he can impose fresh terms, and Mr. Justice Barlee holding that the burden is on the plaintiffs-appellants and that the term of ninety-nine years from 1824 has ended. The original case for the appellants that it was their own land has been held by both the learned Judges not to be proved and need not, therefore, be considered. The questions formulated are:- (1) Whether the burden of proof is on the plaintiffs to show that they are tenants for more than ninety-nine years of S. No. 466, and therefore the decree of the lower Court is correct? or, (2) Whether the burden of proof is on the defendant, the Secretary of State, to show that the period of the lease of S. No 466 has expired, and if so, whether he has satisfied it, or, whether the case should be sent down for a finding on the issue as to whether the period of the lease of S. No. 466 has expired, or any other order should be made in this appeal.

(3.) Each side has adduced certain evidence, meagre it may be, but evidence nevertheless. In the absence of the original record or of the production of the lease by the appellants, the lessees, it is, therefore, a matter of inference on the evidence and probabilities rather than, strictly speaking, a matter of the burden of proof, if I may say so, with respect. The case really turns on three documents, two maps Exhibits 49 and 59 produced by the plaintiffs- appellants, and the extract from a register Exhibit 64 produced by the respondent. It is common ground that no payment of annual rent has been made. On this evidence, the facts in favour of the appellants are as follows: The definite period for which survey No. 466 was leased is not expressly to be found in any of the documents. The land 466 in suit is to the south of the smaller strip 619, also leased to the original lessee of survey No. 466, and immediately bounded on the north by the city survey No 593, which belongs to the same owner. All the three survey numbers have been at least for the last forty years covered by substantial buildings without objections on the respondent's part. The map Exhibit 50 of survey No. 593 describes the southern boundary of 519 adjoining, viz., 466 as "Land sold under a patta to Nana Ambaram by Government", the words being vechan patti. On these facts, the appellants ask the Court to infer that the land had been leased either permanently or for an indefinite period, so that, Government has no right to evict or to ask for rent or at the most for more than a moderate and reasonable rent.