RAMACHANDRA SADASHIV SIDRAS OKA Vs. KESHAV DHONDU NARVEKAR

JUDGEMENT

(1.) The point in this appeal is one of the onus of proof as to the date of the death of one Baji. The suit is an ejectment suit. The defendants have been in possession under a Court sale since 1889. The plaintiff, who is the appellant, relies for his title on a conveyance in 1910 by one Dwarkabai, who was a sister of Baji. The suit was brought as long ago as February 1911, and has already been remanded once by the High Court for an amendment of the pleadings. On that amended case, the plaintiff's case is that Annapurnabai, the wife of Baji, was a widow at the date of her death in 1908, and that Dwarka accordingly was a reversioner, and the plaintiff sues in right of Dwarka as reversioner. A further amendment was asked for on the remanded trial, which will be found in paragraph 28 of the judgment of the learned Trial Judge, viz., to add Dwarka as a co-plaintiff. But that amendment was refused.

(2.) Now the plaintiff is suing for possession, and the onus of proof is on him to make out his title to the property. It is clear that that property was at one time in the ownership of Baji, he being a son of one Anant, who died prior to 1872, Baji married Annapurnabai about 1872, and it appears that some time after that date he left the village. He apparently came back after two years, stayed only a couple of months, and then went away again. There is some conflict of evidence as to when he was last heard of, but it appears that on a judicial-enquiry held in Miscellaneous Application No. 64 of 1880, it was held that he was then alive. Next in a mortgage-deed of 1886, Exhibit 64, there is a recital that Baji was wandering from home for many years. That recital is relied on as showing that he had not been then heard of for over seven years, but the learned Judges came to the conclusion that that recital in the face of other evidence was not sufficient to establish that fact.

(3.) We come then to the question on whom the onus of proof lies. The appellant contends that defendants must prove that Baji was dead in 1889 when the defendants purchased the property. But it is clear, to my mind, that that is not the right way in which to begin the consideration of this case. Baji is the, last person proved to have been the owner. If the plaintiff claims under some reversioner or heir of Baji, the onus is on him to establish his title. That being so, the plaintiff next asks the Court to presume that Baji was dead in 1910 when the plaintiff - purchased the property from Dwarka.