NIBARAN CHANDRA MUKERJEE Vs. RAI HARENDRA LAL BAHADUR

JUDGEMENT

(1.) In this case the District Judge appears to have proceeded upon a supposition that the Judicial Committee in the case of Jagdeo Narain Singh V/s. Baldeo Singh A.I.R. 1922 P.C. 272 said something contrary to what was laid down in the case of Hurryhur Mookhopadhya v. Madhub Chunder [1870] 14 M.I.A.152. Considerable argument has been addressed to us either in support of the District Judge's view or against it, and reference has been made to a number of cases amongst which may be mentioned the following: Sashi Bhusan Hazra v. Abdulla ; Chattra Nath V/s. Babar Ali ; Kiran Chandra V/s. Srinath Chakravarti ; Makhan Lal V/s. Rup Chand Abdul Bari V/s. Hrishikesh Mittra . We have perused these decisions with care, but we consider it unnecessary to discuss them here because, for reasons which we shall presently give, we are clearly of opinion that there is no real foundation for such a supposition, and we would respectfully dissent from such of the aforesaid decisions as may lend any colour to it.

(2.) In Hurryhur Mookhopadhya's case [1870] 14 M.I.A.152 their Lordships referred to the provisions of Regulation 19 of 1793 and pointed out that it divided lakheraj tenures into two classes, that is to say, those created by grants made previous to 12 August 1765 and those created by grants made between that date and 1 December 1790; that the former were, subject to certain conditions declared valid, and the latter with certain exceptions and subject to certain conditions, were declared invalid and as such resumable and subject to future assessment; and that the latter were subdivided into two classes, viz., those which comprised lands not exceeding 100 bighas, and those which comprised lands in excess of that quantity, After dealing with the machineries provided for by the Regulations and the later enactments and also the question of limitation that might arise, their Lordships dealt with the question of burden of proof. Their Lordships referred to the decision of a Full Bench of this Court in the case of Parbati Charan V/s. Raj Krishna Beng. L.R. Sup. Vol. 162 (F.B.) at p. 165, where it was held that in any suit which the plaintiff might bring to assess or resume invalid lakheraj on the allegation that it came into existence since 1 December 1790 it lay upon the plaintiff to prove that the case was one falling within the Section 10, Regulation 19 of 1793. This Court had said: He must prove his allegation that the land held by the defendant, and which he claims to be lakheraj, is part of the mal land of the plaintiff. If he prove that fact, and show that it was assessed to the public revenue at the time of the decennial settlement it may be presumed that the right under which the defendant claims to hold as lakheraj commenced subsequently to 1 December 1790, unless the defendant give satisfactory evidence to the contrary.

(3.) Their Lordships then observed: Again, their Lordships think that no just exception can be taken to the ruling of the High Court touching the burden of proof which in such case the plaintiff has to support. If this class of case is taken out of the special and exceptional legislation concerning resumption suits it follows that it lies upon the plaintiff to prove a prima facie case. His case is that his mal land has since 1790 been converted into lakheraj. He is surely bound to give some evidence that the land was once mal. The High Court in their judgment already considered, has not laid down that ha must do this in any particular way. He may do it by proving payment of rent at some time since 1790, or by documentary or other proof that the land in question formed part of the mal assets of the estate at the decennial settlement. His prima facie case once proved the burden of proof is shifted on the defendant, who must make out that his tenure existed before December 1790.