RAMCHAND Vs. RATNANATH MAHARAJ SAUSTHAN OF BHAR

JUDGEMENT

(1.) THE finding of the lower Courts that the defendants failed to prove that they were ante Jahagir ten-ants is sufficient for the dismissal of this second appeal. But it is argued that the plaintiff's own Nafargats, which disclose the chain of tenants who held the lands in suit prior to the grant of the jahagir clearly establish the defendants' case that the holding was an ante-jahagir holding and the Courts below should have on the presumption permissible under Sections 109 and 110 of the Evidence Act held that the several persons mentioned in plaintiff's Nafargats, were the defendants' predecessors in interest within the meaning of Section 223 of the Berar Land Revenue Code. But Kotval, A.J.C., has held in Second Appeal No. 230-B of 1917 that such a presumption is not permissible in the case of a title based on purchase and that the party relying on purchase must prove his purchase. A privity of estate whether by, inheritance or by purchase is a question which must be proved like any other fact: it cannot be the subject of a legal presumption merely. The Nafargats only prove a chain of cultivators in succession, but they do not in themselves prove whether each successor came upon the land under a derivative title or independently of the landlord. So long as each cultivator held the land we might presume under Section 109 of the Evidence Act that his tenancy hath a continuance' There is no presumption that his successor is necessarily a transferee from him.

(2.) THE question raised as regards the applicability of Section 221 of the Berar Land Revenue Code is also a question dependent on proof of facts attending the introduction of the survey settlement in the jahagir. I am not prepared to differ from the lower appellate Court in its view that this new ground of attack could not be permitted at the stage of appeal: Nathu Piraji v. Umedmal Gadumal [l909] 33 Bom. 35.