GAYA DUTT TIWARI Vs. GOPI MAHTO

JUDGEMENT

(1.) The petitioners sued the defendants opposite party for recovery of Rs. 85-12- 6 as price of mango fruits. According to the petitioners they are 16 annas maliks of khewat No. 1/1 of village Inarpatpur in which plot Nos. 65 and 66 lie. These plots are recorded as gair mazrua am land. According to the petitioners, the defendants or their predecessors planted mango, jack fruit, mahua and other trees standing on these lands with their consent on the condition that they were to have a half share of the fruits thereof, that is to say, a half share of the fruits would belong to the landlords and the other half to the tenants. According to the petitioners, 29 mango trees were planted on these plots with the consent of the landlords on such conditions. In previous years to the suit, the defendants had given the price of the fruits to the petitioners but in 1349 and 1350 Fs. they did not divide the mangoes of the trees in spite of the demand of the petitioners. Hence the suit. According to the petitioners in 1349 Fs. the trees yielded 26,100 mangoes and in 1850 Fs. 30,000 mangoes.

(2.) Defendant 1, Gopi Mahto denied that the petitioners were the 16 annas maliks. He also denied that the trees were in plots 65 and 66. On the contrary, they are on his tenancy lands i.e. plots 70, 73 and 74. He also denied that the trees were planted with the consent and permission of the landlords. He further contended in the alternative that plots 65 and 66 were gair mazrua rasta and that he had a right to plant trees on those lands without the consent of the landlords. Defendants 2 and 3 Bhadayi Mahto and Birit Mahto admitted that they had planted the trees on plots 65 and 66 years ago with the consent of the plaintiffs. They denied that defendant 1 had any concern with the trees in suit. Their case, however, was that in the year in suit, the trees did not bear any fruit.

(3.) The Small Cause Court Judge found that the petitioners were the 16 annas maliks of khewat No. 1/1 in village Inarpatpur. The learned Judge also found on a pleader commissioner's report that only 27 trees stand on plot No. 65 and that the other two stand on the boundary of plat Nos. 65 and 14, plot No. 14 belonging to the defendants. As to the amount of produce from these trees, he held that the petitioners had not proved how many mango fruits the trees in plot No. 65 bore in the years 1349 and 1350. He discussed the oral evidence and the documentary evidence on behalf of the petitioners in this connection. He also held, after having considered the evidence in the case, that the plaintiffs had not proved that the defendants had planted the trees on plot No. 65 with the permission of the landlords. On these findings, it is clear the learned Judge could have had no alternative but to dismiss the petitioners suit. Assuming everything in favour of the petitioners, if they were unable to prove what was the amount of the produce of these trees, their suit must be dismissed. This was not a case of giving a decree on any admission made by the defendants as to the number of mango fruits which the trees may have borne during the years 1349 and 1350. The onus was on the plaintiffs which according to the Court of fact they had not discharged. It was urged on behalf of the petitioners that even a decree for Re. 1 would satisfy the petitioners as they were contending for a principle, for even in the worst years, 27 trees must have at least produced Re. 1 worth of fruit. In view, however, of the decision of the Full Bench in Partap Narain V/s. Ramasray Pershad A.I.R. 1938 Pat. 81, the onus was on the plaintiffs to prove what was the produce for the years in suit and they having failed to do so, must suffer and their suit must be dismissed.