SATU PRAMANIK Vs. JOYNAB BIBI

JUDGEMENT

(1.) THESE two appeals arise out of two suits which were instituted by the plaintiffs to recover arrears of rent. The claim was for rent for the years 1326 to 1329. The suits were dismissed by the trial Court and appeals being preferred by the plaintiffs the Subordinate Judge allowed the appeals and decreed the suits. The main defence of the defendants in these two suits was that the kabuliyats under which they are said to have been holding the lands had been fraudulently obtained from them by undue influence, misrepresentation and fraud; that the plaintiffs right to receive rent had been suspended in consequence of the plaintiffs having executed a usufructuary mortgage in respect of the lands in favour of certain persons for a period of 16 years and that the said period is still running and that in point of fact the defendants have been paying rent for the said lands to the said mortgagees. The Subordinate Judge has found that the story of the defendants to the effect that the plaintiffs had asked them to pay rent to the usufructuary mortgagees was not established and was highly suspicious; that actual payment of rent to the usufructuary mortgagees by the defendants was not proved; that the kabuliyat of 1315 was not vitiated by fraud or misrepresentation or undue influence. In this view of the matter the defendants were bound to pay rents to the plaintiffs until and unless they were in a position to show that the plaintiffs right to receive rent had been suspended owing to the execution of the usufructuary mortgage. He has further found that the usufructuary mortgage was a transaction in respect of which no consideration had passed and that it was a transaction which was not really acted upon and that, therefore, the relationship of landlord and tenant as between the plaintiffs and defendants continued for the period in suit and that consequently the defendants were bound to pay rent which had been claimed in the suits. The defendants have preferred these two appeals and they challenge the validity of the findings of fact to which I have already referred on the ground that they have been arrived at by the learned Subordinate Judge by wrongly placing the onus of proof upon the defendants. In a case of this description the onus undoubtedly is on the defendants who alleged that the relationship of landlord and tenant that existed between them and the plaintiffs had terminated resulting in the termination of their liability or as in the present case, the suspension thereof, and although in a particular case it is not possible to say at what point of time the onus shifts from one party to the other, the initial, as well as the ultimate, onus in a case of this description must be said to have vested on the defendants. There are, no doubt, certain passages in the judgment of the learned Subordinate Judge which indicate that in considering the question whether the parties had succeeded in proving some particular point or other in respect of which the onus lay upon them the learned Subordinate Judge has applied what may roughly be said to be a different standard of proof, For instance, the learned Subordinate Judge has said in one portion of his judgment that the relationship between the plaintiffs and the defendants "would be presumed to have continued unless there is strict, very convincing and conclusive evidence that the plaintiffs right to receive rent had been suspended;" while in dealing with a matter which the plaintiffs had to establish he has applied a much less exacting standard. In the result, however, he has been able to come to the conclusion that there is no convincing or satisfactory evidence to show that the usufructuary mortgage was really acted upon. The substance of the learned Sub ordinate Judge's judgment, in my opinion, does not really depend entirely on the question of onus but on a consideration of the whole evidence that there was on the record and also upon the circumstances of the case.

(2.) IN my opinion, the contention that has been urged on behalf of the appellants is not well- founded and that the appeals fail and are dismissed with costs. Cuming, J. I agree.