RAMCHANDRA Vs. RUPCHAND

JUDGEMENT

(1.) THE plaintiff as malguzar of the village sued to eject the defendant as a transferee of an abadi site without permission. The defendant contended that the site was occupied at the time of the thirty years settlement by his predecessor-in-title and that he was entitled to purchase the site as he had done from the last occupant without permission. The trial Court held that the defendant had failed to prove that the site was occupied at the time of the thirty years settlement and decreed the plaintiffs suit. In appeal the decision was reversed. The lower appellate Court held that the burden of proof that the site was unoccupied at the thirty years settlement lay on the plaintiff who failed to prove it. The plaintiff has now preferred a second appeal.

(2.) THE appeal must succeed. I have no doubt that there was a certain amount of hard swearing in the trial Court on a point which was difficult to prove, but the lower appellate Court has lost sight of the principle enunciated by Stanyon, A.J.C., in Narain v. Behari AIR 1915 Nag 119 that the whole of the abadi site belongs to the landlord, and prima facie every tenant dwelling thereon is a licensee whose occupation is protected by the terms of the wajibularz. This principle was approved of by Findlay, J.C., in Balaji v. Sarfrajkhan AIR 1929 Nag 41. The terms of the wajibularz of this village are those which are discussed in Balaji v. Sarfrajkhan AIR 1929 Nag 41, that is, that tenants who were in possession of land prior to the thirty years Settlement had full rights of disposal of the same but that the land which was vacant at the thirty years Settlement could only be disposed of with the landlord's consent. It does not follow from this, as is urged on behalf of the respondent, that the second condition enunciated is a proviso to the first. Both provisions have equal weight as far as the wajibularz is concerned and the burden is on him who seeks to put himself outside the primary proposition that the landlord is a proprietor of the abadi and that the tenants are prima facie licensees, although protected by the wajibularz. The burden therefore lay on the defendant.

(3.) ANOTHER vital point which has been overlooked in both the lower Courts is the cross-examination of Guttu (D.W.5). This is the man who transferred the site in question to the defendant and he was called to prove the transfer. In cross-examination he admitted that when he himself acquired the site from Dhanraj, he had to give Rs. 10 to the plaintiff for giving his consent. It is clear therefore that at the time he acquired the site, the site was not considered susceptible of unhampered transfer. The appeal succeeds. The decision of the lower appellate Court is reversed and that of the trial Court is restored. The respondent will pay the appellant's costs throughout.