RAI SAHEB NAGENDRA NATH VASU Vs. KSHIRADAR RUIDAS

JUDGEMENT

(1.) In this appeal the only question raised is that the learned lower Appellate Court has misplaced the onus upon the plaintiff in the circumstances of this case. The plaintiff claims to be a raiyat and he served notice of ejectment under Section 49, Bengal Tenancy Act, upon the defendants as under- raiyats. The defendants claimed that they were raiyats and could not be ejected by notice under Section 49, Bengal Tenancy Act. The trial Court found upon the evidence that the plaintiff was a raiyat and that the defendants were under-raiyats and were liable to be ejected. The lower Appellate Court on a consideration of the evidence came to the conclusion that the plaintiff was a tenure holder and, therefore, could not eject the defendants who were raiyats. The learned Subordinate Judge has observed in his judgment that the onus was misplaced by the first Court upon the defendants to prove that they were raiyats. It has been argued on behalf of the appellant that the view of law taken by the lower Appellate Court is wrong on the authorities. We think that in the circumstances of this case the lower Appellate Court has taken a correct view with regard to the placing of onus. In a suit in ejectment the plaintiff must primarily prove his title to obtain possession of the land in suit. Then the onus may shift according to the defence of the defendant. If the defendant admits to be a tenant but claims a higher right than what ordinarily a tenant possesses the onus must be upon him to prove it satisfactorily. If, on the other hand, the landlord seeks to eject the defendant whose tenancy he admits the landlord must prove that the tenancy was by some legal means determined. Keeping these principles in view the cases that have been cited before us in support of the appellant's contention are easily distinguishable. In Ram Monee Mohuri V/s. Alemooddeeni 20 W.R. 374 the owner of a land brought a suit to recover possession from persons whom he called trespassers having no right to be in the land. The defendants while admitting plaintiff's title pleaded some right to remain on the land and to show that they were not trespassers. The onus under the ordinary rule of burden of proof clearly lies upon the defendants to prove such right. In Beharee Sahoo V/s. Puryag Mahtoon 23 W.R. 291 the plaintiff was the admitted landlord and the defendant was a lessee. After the expiry of the term of lease the plaintiff obtained possession of the leasehold lands except some zerat lands which the defendant claimed to possess by right of purchase from a third party. It was held that the onus was on the defendant to prove his special title. In Seturathan Iyer V/s. Venkatachala Goundan 56 Ind. Casd. 117 : 25 C.W.N. 485 at. p. 494 : 47 I.A. 76 : (1920) M.W.N. 61 : 27 M.L.T. 102 : 11 L.W. 399 : 38 M.L.J. 476 : 22 Bom. L.R. 578 : 18 A.L.J. 707 : 43 M. 567 : (P.C.) a pattadar from the Government sought to eject a ryot of the village as a non- permanent agricultural ryot. The ryot claimed that he had obtained by long possession and uniform payment of rent a permanent right in the land in suit. Their Lordships of the Judicial Committee held that in the circumstances of that case the onus was upon the tenant to prove the right claimed by him. In Nainapillai Marakayer V/s. Rammathan Chettiar 82 Ind. Cas. 226 : 51 I.A. 83 : A.I.R. 1924 P.C. 65 : 19 L.W. 259 : 22 A.L.J. 130 : 34 M.L.T. 10 : (1924) M.W.N. 293 : 46 M.L.J. 546 : 10 O. & A.L.R. 464 : 47 M. 337 : 28 C.W.N. 809 : L.R. 5 A. (P.C.) 33 (P.C.) the land belonged to the trustees of a Hindu temple who sough to recover possession of it from the defendant. The defendant claimed permanent right in the land. It was held that the onus was upon the defendant to prove that he had a permanent right to occupy the land. These cases establish the principle underlying Section 101 of the Evidence Act. Admittedly the land belonged to its owner. If any one claims to possess the land against the owner he must prove such claim; for in the absence of any evidence the owner of the land must be presumed to have the right to possess the land. If on the other hand the owner admits that the land was in the possession of a tenant but proves that he has determined the tenancy; even then so soon as he proves that he has acquired a right to khas possession, the onus is upon the tenant to prove that he has the right to remain on the land. But in such a case the landlord must prove that he has by some act or operation of the law acquired the right to obtain khas possession. The point has been elaborately dealt with in Basiruddin Sarkar V/s. Sahebulla Pramanik . We fully agree with the view taken in that case for the reasons given there. In the present case there is a very decisive finding of fact by the lower Appellate Court against the plaintiff which cannot be challenged in second appeal and which concludes this case.

(2.) It has been found on an examination of a document that he is a tenure-holder. The appellant, however, contends that the entire evidence on the record has not been considered by the lower Appellate Court as it appears from its judgment. This ground has not been taken in the memorandum of appeal presented before us nor is it a ground of second appeal. It has been held that even a misreading of the evidence by a Court of fact is not a ground of second appeal.

(3.) This appeal fails and is dismissed with costs.