ENSAR ALI Vs. YAKUB ALI

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff-respondent under Section 106 of the Bengal Tenancy Act, 1885, for the correction of an entry in a record of right relating to a miras karsa holding. The holding was entered in the record as belonging to one Moharuddi and the defendants, half and half. Moharuddi has died and Yakub claims to be, as his second cousin, entitled to 4-annas of the holding. He accordingly brought this suit in order to have his name entered in respect of 4 annas. Both the Courts below have concurred in altering the record accordingly.

(2.) The defendants now appeal, and on their behalf, three-contentions have been pressed before me, first, it is said that the onus has been wrongly placed on the defendants, whereas it ought to have been placed on the plaintiffs, secondly, it is contended that the lower Courts have not found what the precise share of Yakub under the Mahatnmadan law is, and, therefore, they had no right to alter the record by entering his name in respect of any particular share, lastly, it is urged that, in cases under the Bengal Tenancy Act, the sole question to be decided is the question of possession and no question of title ought to be considered at all.

(3.) The first point I am unable to understand. I can find nothing in either of the judgments of the lower Courts regarding the onus of proof excepting the remark made by the lower Appellate Court that the onus of proving that Moharuddi was not entitled to a share in the property lies on the appellants and that the appellants have utterly failed to discharge that onus. There can be no question as to the soundness of this remark, for Moharuddi is entered in the record as the owner of half the miras karsa and the burden of proof is, of course, on the person alleging that that record is incorrect.