SURENDRA NATH SEN Vs. GANESH CHANDRA SHAHA

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for ejectment under old Section 49(b) of the Bengal Tenancy Act. The substantial defence of the defendant was that he was not an under- raiyat but was a raiyat. The Courts below have concurrently found that the defendant is an under raiyat and in that view they have decreed the plaintiff's suit. In the present appeal the substantial point which was argued by the learned Advocate for the appellant was that the onus of proving the status of the defendant was not properly placed by the Courts below. The learned Subordinate Judge who heard the appeal has not given his own reasons for holding that the defendant is an under-raiyat. The only observation that he has made on the question of status in his judgment is as follows: The learned Munsif after full discussion has found that the defendant is an under- raiyat and his argument could not be challenged. I, therefore, see no reason, to interfere with the findings

(2.) In my judgment this is not the proper way of dealing with the only important defence which was taken by the defendant. From the judgment it is not at all clear whether he properly applied his mind to the evidence in the case. Even if he had applied his mind to the evidence in the case it does not appear on whom he placed the onus. It may be pointed out here that it is now well established on authorities that the onus of proving the status of the defendant is on the plaintiff: See the cases of Abhoy Charan Dutta V/s. Futtari Dassi 57 Ind. Cas. 833 , Bashiruddin Sarkar V/s. Sahebulla Pramanik 32 C.W.N. 160 : 105 Ind. Cas. 857, Nagendra Nath Basu V/s. Kshiradar Ruidas 113 Ind. Cas. 575. The learned Advocate for the respondent, however, placed much reliance upon a recent decision of the Judicial Committee in the case of Subrahmanya Chettiyar V/s. Subrahmanya Mudaliyar 33 C.W.N. 734 : 116 Ind. Cas. 601 : A.I.R. 1929 P.C. 156 : 31 Bom. L.R. 830 : 30 L.W. 30 : 57 M.L.J. 1 : 52 M. 549 : (1929) M.W.N. 561(P.C.). In this, case Lord Salvesen affirmed the principle which was laid down by the Judicial Committee in two previous cases, namely, the cases of Seturatnam Aiyer V/s. Venkatachala Goundan 43 M. 567 : 56 Ind. Cas. 117 : (1920) M.W.N. 61 : 27 M.L.T. 102 : 11 L.W. 39 : 38 M.L.J. 476 : 2 Bom. L.R. 578 : 18 A.L.J. 707 : 47 I.A. 76 : 25 C.W.N. 485 (P.C.) and Nainapillai Marakayar V/s. Ramanathan Chettiar 47 M. 337 : 82 Ind. Cas. 226 : A.I.R. 1921 P.C. 65 : 19 L.W. 259 : 22 A.L.J. 130 : 34 M.L.T. 10 : (1924) M.W.N. 293 : 46 M.L.J. 516 : 10 O & A.L.R. 464 : 28 C.W.N. 809 : 51 I.A. 83 : L.R. 5 A(P.C.) 33 (P.C.). The effect of the last two Privy Council decisions was considered by this Court in the case of Bashiruddin Sarkar V. Sahebulla Pramanik 32 C.W.N. 160 : 105 Ind. Cas. 857, and Nagendranath Basu v. Kshiradar Ruidas 113 Ind. Cas. 575. The learned Advocate for the respondent also drew my attention to the judgment of a single Judge of this Court in the case of Basanta Kumar Sarkar V/s. Panchcowri Mandal . It is true that in that case the learned Judge relied on two decisions of the Judicial Committee but it does not appear from the judgment in that case that the attention of the learned Judge was drawn to the earlier cases of this Court in which the effect of the decisions of the Judicial Committee on the point under decision was considered. Under these circumstances I am of opinion that the onus is upon the plaintiff to prove that the status of the defendant is that of an under-raiyat.

(3.) The result, therefore, is that this appeal is allowed. The judgment and decree of the lower Appellate, Court are set aside, and the case is sent back to that Court for rehearing of the appeal according to law in the light of the observations made above.