TUKA MEAH Vs. NABIN CHANDRA MAZUMDAR

JUDGEMENT

(1.) In this suit the plaintiff sued for recovery of possession of 1 kani 14 gandas of land on declaration of his raiyati title to 6 annas 8 gandas share and of his under-raiyati title by purchase at a sale for arrears of rent due by the under-raiyat. The suit was dismissed in the First Court but has been decreed by the lower Appellate Court.

(2.) The plaintiff's cause of action arose on the defendant Tuka Meah succeeding in an application under Order XXI, Rule 100. Civil P. C.. The first point argued in this appeal is, that the suit is barred by limitation under Art. 11A of the Schedule to the Limitation Act. Though on examination of the dates at first this objection appears to be sound, we now see that, allowing for the closing of the Court for Puja vacation and the time allowed to the plaintiff to file deficit Court-fee, the plaint was filed within time.

(3.) The second point relates to a question of fact on which the two Courts differed. The first Court held that Nayantara, from two of whose five sons the plaintiff purchased his raiyati right, was a benamdar of her husband Krishna Chandra. The lower Appellate Court held that she was not a benamdar. It is contended that in coming to this finding of fact the burden of proof was wrongly thrown on the defendant. Primarily, the party alleging that a person is a benamdar is bound to prove it, and that in what the Additional District Judge has stated. He has further considered the evidence in the case. It appears to us that he has committed no error of law in coming to this finding of fact.