RUTNESSUR SEN Vs. KALI KUMAR BIDYABHUSAN

JUDGEMENT

(1.) IN my opinion, we must set aside the judgment of Mr. Justice Coxe and restore the decree of the lower Appellate Court. The suit is one for the recovery of possession of an undivided half share of certain land, on the allegation that this share was included within a taluk Ram Ram Sen, of which the plaintiff was a purchaser at a revenue sale. The defence of the defendants was that as they were in possession, they were entitled to retain that possession by virtue of a permanent tenure created by a certain howla. The lower Appellate Court has come to the conclusion that the defendants have failed to prove that the disputed land appertains to this particular howla. On appeal, however, Mr. Justice Coxe did not think that he was baund by that finding of fact, for it appeared to him that there had been an erroneous decision by the learned Judge as to the incidence of the onus of proof. He considered that it was incumbent upon the plaintiff to show that the lands in dispute were not in the howla. The authority for this view is said to be found in Rajendro Kumar v. Mohun Chandra 3 C.W.N. 763. That case does not profess to lay down any new law. The Judges make it clear that they only proposed to follow the decision of this Court in Rhidoy Kristo v. Nobin Chunder 12 C.L.R. 457. An examination of that case makes it clear that all that the Court said or determined was that a plaintiff must prove his allegations. IN that case, the plaintiff sued his tenant for khas possession. He admitted the tenants holding bat he alleged that the land in dispute was an encroachment beyond the proper boundaries of the holding and, therefore, it appeared to the Court that it was for the landlord to prove the encroachment. That was because the encroachment was the case made by the landlord in his plaint. That this is so is made abundantly clear by the contrast drawn in the judgment between these cases where the burden of proof lies upon the defendant and where it lies upon the plaintiff, in circumstances which have a superficial resemblance, one to the other, but which differ by reason of the particular allegations made by the plaintiff in each case, and by reason of that which it is necessary for the plaintiff to allege and prove. This is so apparent from the judgment itself, that I need say no more than refer to the decision of Mr. Justice Banerjee in Sheodeni Roy v. Chatoorbhuj Roy 12 C.L.J. 376 : 8 INd. Cas. 785 as giving the sanction of his high authority to this view. IN my opinion, therefore, in the circumstances of this case, there is a finding of fact by the Subordinate Judge vitiated by no error of law, and by that finding this case is concluded. I do not overlook the ingenious argument advanced by Mr. Jogendra Chandra Ghosh, based upon a reference to long possession, but I cannot find that adverse possession or even length of possession, as distinct from possession under the howla, was ever the defendant s case: and. so far as limitation goes, it is apparent from the judgment of the Munsif that this was abandoned in the Court of first instance. Moreover, the judgment of Mr. Justice Coxe, as well as that of the Subordinate Judge, indicate in the clearest manner the lines within which this case proceeded. We cannot, therefore, give effect to this argument, and we must accordingly set aside the judgment of Mr. Justice Coxe, restore the decree of the Subordinate Judge, and direct that the respondents do pay to the appellant the costs incurred in the High Court. N. Chatterjea, J.

(2.) I agree.