NOBENDRA KISHORE ROY Vs. KAZI LUTFUL HUQ

JUDGEMENT

(1.) The plaintiffs in this case are the purchasers of an entire estate at a revenue sale, and sue for recovery of certain land as being included within that estate. The learned District Judge of Noakhali in first appeal has dismissed the suit. The plaintiffs appeal.

(2.) The first point taken in appeal is that the learned District Judge has erred in holding that the plaintiffs cannot merely by proving the thak map shift the burden of proof to the other side. Reading the judgment as a whole it seems clear that the District Judge took the thak into consideration. The plaintiffs relied on that and nothing else, and he considered that it was not sufficient to shift the burden of proof to the defendant.

(3.) A number of cases have been cited to show what is the value of thak maps. There are certainly cases in which the thak map is quite sufficient to raise a prima facie case on behalf of the person pleading it and to put the other side to the task of rebutting that evidence; but we cannot in second appeal say that the District Judge is wrong in holding that in this case the plaintiff cannot succeed in shifting the burden of proof merely by filing the thak map. That is a point which is conclusively settled by the decision in Jagadindra Nath Roy V/s. Secretary of State for India 30 C. 291 : 30 I.A. 44 : 7 C.W.N. 193. Their Lordships remark that they are not prepared to say as a matter of law that the appellant's counsel were right in contending that the burden of proof was shifted on to the respondent by the thak and survey maps." Later on they say it would not be right in point of law to direct the Judge of first instance that he ought in all cases to act on the last thak or survey map and to treat it as decisive in the absence of evidence to the contrary."