RAMESH CHANDRA SINHA Vs. MOHAMMED ELAHI BUKSH

JUDGEMENT

(1.) This appeal preferred by the defendants Nos. 1 and 2 arises out of a suit brought for declaration of title to a jote and for a further declaration that a decree obtained by the defendants Nos. 1 and 2, the present appellants, against the pro forma defendants in a rent suit was fraudulent. The Courts below have given the plaintiff the decree which he asked for and consequently this appeal is preferred by the defendants Nos. 1 and 2. It is not necessary to go further into the details of the case. The appellants have put forward two contentions. The first is that the so-called tenure is only a raiyati and that the holding is a non-transferable raiyati holding and the plaintiff acquired nothing by his purchase. So far as this point is concerned, the answer given by the learned Judge of the Court of Appeal is conclusive. The holding is shown in the Record of rights as a tenure and the defendants Nos. 1 and 2 presented an application under Section 105 of the Tenancy Act on the footing that the holding was a permanent tenure. Other facts are given by the Judge but it is not necessary to repeat them. This argument, I may say, has hardly been pressed and it fails.

(2.) The second argument is that the Courts below are wrong in finding that the family of Fakir Singh was governed by the, school of Mitakshara, Law. The point which is pressed is this that the plaintiff ought to have proved over and above the fact that Fakir Singh's family came from the North-West and that various incidents of their lives show them to have followed the customs o? the Mitakshara school of law, the further fact that the date of the family's immigration into Lower Bengal took place after the establishment of the Dayabhaga system of law. For this proposition, reference is made to the case of Pitambar Chandra Saha Chaudhuri V/s. Nisikanta Saha 55 Ind. Cas. 5 : 31 C.L.J. 52 : 24 C.W.N. 215. If that case really lays down that, for a family residing in Bengal to show that it is governed by the Mitakshara school of law, it must prove immigration and immigration since the establishment of the Dayabhaga system and the continued practice of Mitakshara customs, it lays a very heavy onus upon the party making the claim and that onus is materially increased if it is correct that Jimutavahana flourished not in the 14 Century but in the 11 Century, as is said in the case of Rajani Nath Das V/s. Nitai Chandra Dey 63 Ind. Cas. 50 : 48 C. 643 : 32 C.L.J. 838 : 25 C.W.N. 433 (F.B.). However, it appears to me, on a correct reading of the case of Pitambar Chandra Saha Chaudhuri 55 Ind. Cas. 5 : 31 C.L.J. 52 24 C.W.N. 215, that the learned Judges did not lay down that this third item of proof must be given. They were dealing with the question of the burden of proof and discussing what facts proved by one side shifted the burden of proof on to the other side and I do not think it is correct to say that they required that this third item of proof must always be given. So, in the view I take of that case, the findings of fact recorded by the learned Judge of the Court of appeal below are sufficient to show that the plaintiff is entitled to say that the family of Fakir Singh was governed by the school of Mitakshara Law, for he has given the necessary proof of origin and practice. The result is that this second argument also fails.

(3.) The appeal is accordingly dismissed with costs. Suhrawardy, J.