1. This second appeal arises out of a suit brought by the plaintiff-respondent against the defendant-appellant for arrears of rent. In the plaint it was asserted that the defendant-appellant was a tenant of the holding in question at a certain rate of rent which was entered in the village papers. The defendant's name appeared as tenant in these papers. The suit was resisted by the defendant on the ground that he was the proprietor of the land in question. During the progress of the suit the defendant changed his defence, and claimed that he was ex-proprietary tenant of the holding and could not be liable for rent as none had been fixed by the Collector at the time when he lost proprietary rights in the mahal.
2. The trial Court decided that the name of the father of the defendant had been entered as the sole zamindar of the mahal up to six years ago, but previous to the death of the defendant's father the defendant and his brother (the plaintiff) had anticipated their succession by survivorship to their father because their father was insane and had separated between themselves. On the father's death the two brothers succeeded to separate fractional shares in the mahal. The defendant sold his share and lost his proprietary title. The question was whether the defendant could claim at the time when he sold his share that he became an ex-proprietary tenant in this land. There was no question that he had cultivated the land for many years. Both the lower Courts have held that the defendant could not claim to have been ex-proprietary tenant when he parted with his interest (as cosharer with his brother) because he had failed to prove that the land was ever his sir. They failed to consider whether he had proved 12 years cultivation previous to the sale of his proprietary right which under Section 10, Tenancy Act, would justify his claiming to be an ex-proprietary tenant.
3. The burden of proving this was on the defendant especially as in his written statement he did not set up this plea, but claimed still to be proprietor of the land. I have asked counsel for the appellant to indicate by what evidence defendant's contention is supported that previous to the sale of his interest in the mahal a few years ago he had cultivated this land as proprietor. The answer is that the defendant and the plaintiff were sons of a Hindu father and should be presumed to have been joint. Where therefore a plaintiff is shown in the village papers as a tenant on a certain rent during the lifetime of his father, this should be taken to mean that he cultivated the land as co-owner with his father. Now the judgment of the trial Court shows that during the lifetime of the father the two brothers, namely the plaintiff and defendant, had separated. There is therefore no presumption that the father was joint with the sons. Under Section 57, Revenue Act, entries in the Record-of-Rights are presumed true until the contrary is proved. The entry of the appellant as a tenant in the register of persons cultivating (see Clause (e), Section 32, Land Revenue Act) was an entry in the Record-of-Rights both at the last settlement and apparently at the previous settlement. Not only was the defendant entered as tenant, but the rent was entered. In these circumstances the defendant was bound to prove that the entry was wrong by clear evidence that his family was joint and undivided. The mere fact that the defendant and his father and his brother (the plaintiff) were members of a Hindu family is not sufficient to justify the inference that they were joint.
4. It appears to me that what was probably the case was this: The father became insane many years ago and the sons took the property of the family as if the father had died. They were probably entitled to do this. Having so taken it, they separated among themselves and the defendant was recorded as a tenant of his father. It is perfectly possible that this was due to some agreement whereby the defendant was willing to accept the position of an ordinary tenant. The facts are obscure, but on the evidence I must concur with the lower Courts that the defendant has not proved that he became ex-proprietary tenant of the land in question and that this being so we must accept the entries in the village papers as correctly describing his interest in the land namely as an ordinary tenant. For the above reasons I dismiss this appeal.