SIGAPPI Vs. KATHAYEE

JUDGEMENT

(1.) The defendant is the appellant. The second appeal arises out of a suit instituted by the plaintiff for a declaration of title to the suit properties, for a permanent injunction, and, if necessary, for recovery of possession of the same free from interference from the defendant. The plaintiff is the wife of the deceased son of the defendant. The defendant's son died in November 1926. According to the plaintiff's evidence, she collected the crops from the suit lands of the year of the death of her husband. The next year she cultivated the lands and the defendant, and her men destroyed the crops. Then the present suit was filed on 28 July 1928. On the merits, the defendant's contention was that the plaintiff cannot claim any right to the properties as her son was disqualified for various reasons from inheriting them. The plaintiff was given a decree by the first Court and this decree was confirmed in appeal. The defendant did not give her entire evidence before the trial Court. In this second appeal the question is whether the defendant should now be allowed an opportunity to put before the Court all her evidence. The failure of the defendant to adduce her entire evidence arose as a result of a ruling given by the District Munsif as to the burden of proof with reference to two issues in the case. These issues are issues 4 and 7. Issue 4 is: whether the plaintiff was in possession at the date of the suit, and if not, whether the suit for declaration and injunction is maintainable.

(2.) Issue 7 is an additional issue. It is whether the plaintiff or her predecessors in title had possession within 12 years before suit.

(3.) When the suit was taken up the vakils on both sides were absent. The Munsif then put the plaintiff into the witness-box and elicited an answer to a question. By that time the plaintiff's vakil turned up and said that the burden of proof was not on the plaintiff and that the defendant should begin. The Munsif then put the defendant's agent into the box as a witness on the defendant's side and began to examine him himself. After some examination the case was adjourned. The defendant's vakil turned up later and continued the examination of the witness. Later on, the defendant put in an application that the burden pf proving issues 4 and 7 lay on the plaintiff and that he (plaintiff) should be directed to begin. On this application the District Munsif passed the order: On hearing both parties I already called upon the defendant to begin, since on the main issue the burden is upon her, etc.