T M ITTITHAYERI NAMBUDRI Vs. PCKKANVASTRI ITHRI AMMA

JUDGEMENT

(1.) The first question argued is that the Subordinate Judge wrongly disallowed a considerable extent of paddy lards as not included in the demise. It is argued that the onus was on the defendants to point out the lands demised to him and not on the plaintiff to prove what lands he demised and claims to recover. There is absolutely no warrant for this proposition. The case relied on Dugappa Chetti v. Tirthasami 6 M. 263 lends no countenance to it. As pointed out in (hat case, if the tenant destroys the boundaries of the lands he takes possession of from his landlord or otherwise mixes up the lands with other lands in his possession, then the onus of pointing out the lands demised would be shifted to the tenant. This rule does not displace the principle that the plaintiff who wants to recover any land on the ground that it belongs to him must prove his case. In (his case it was not alleged that the tenant so mixed up plaintiff s lands with other lands as to relieve the plaintiff of the onus of proving his case. It is not shown that the Sub-Judge failed to consider any material evidence relating to the identification of the lands.

(2.) The next objection relates to the pararhbas. The Subordinate Judge has considered both the boundaries and the measurements. His finding must be accepted. The second appeal is dismissed with costs. Memorandum of Objections.

(3.) The question of the validity and binding character of the demise is one of fact and we cannot, therefore, go into it. The question of plaintiff s right to interest on arrears of rent was not raised in the lower Appellate Court and cannot, therefore, be allowed to be raised now. The memo, of objections is also dismissed with costs. S.A. No. 483 OF 1910.