1. This is an appeal by all the defendants in the original suit except the heirs of defendant 4. The plaintiff sued for a declaration that he was the absolute owner of certain property, and further for a declaration that the defendants had no rights at all in the property, though it happened that their names were fictitiously entered in the revenue papers. The case involves one of those difucult questions, which so often arise where there are a number of defendants and plaintiffs and one or other of them has died during the pendency of the suit and the hairs have not been brought on the record.
2. In the present case defendant 4 died during the pendency of the suit, and for the purpose of facilitating the decision of the cross-objections, which have been taken in the present appeal we may state immediately what occurred after the death of defendant 4, Upon learning of the death of defendant 4, the plaintiff applied to have his heirs brought upon the record, but he did not make his application until a period of more than three months had elapsed. One of the heirs of defendant 4 was a minor and notice (so we are informed by the respondent here who files the cross objections) was issued to the heirs of defendant 4 to show cause why one of the heirs should not be appointed guardian of the minor heir. The heirs of defendant 4 did not appear in response to this notice. But it is admitted for the respondent-plaintiff here that no notice was issued to the heirs of defendant 4 to show cause why they should not be brought on the record. There was, therefore, nothing to arouse seriously the attention of the heirs. Subsequently summonses in the suit were issued to these heirs to appear at the settlement of issues. Then they filed a written statement objecting that the application to bring them on the record had been made after the expiry of three months and that no justification was shown for that delay. The trial Court and the lower appellate Court have both accepted this objection, and it forms the basis of the cross-objections filed in the present appeal. We may say at once that the contention of the plaintiff that the heirs of defendant 4 were properly brought on the record, is on the facts that we have stated, untenable, and we, therefore proceed to the consideration of the appeal of the defendants.
3. The facts are that in the revenue records all the defendants in the present suit including defendant 4 appear as mortgagees in possession. The plaintiff claimed to be the absolute owner, and that the defendants had no right at all and that the entry of their names was 'fictitious.' In this state of affairs the defendants or some of them on behalf of all of them brought a suit for profits in the revenue Court, on the basis of the entry of their names, and obtained a decree. This fact is stated to us by the counsel for the defendant-appellants and is not controverted by the other side, The situation then was that the defendants could on the basis of the entry of their names on the record proceed to bring a suit every three years for pro fits, if the plaintiff refused to hand them over. Plaintiff, therefore, came into Court with the present suit. The defendants' answer was that they and their ancestors had been in continuous possession as mortgagees for more than sixty years, and on this basis they ask ed for the dismissal of the suit.
4. The trial Court held that the defendants as mortgagees had been receiving profits and on this finding dismissed the whole suit. It further hold that in any event the suit abated against the legal representatives of defendant 4 for the reasons we have stated at the outset.
5. On the plaintiff's appeal the lower appellate Court held that the defendants were not mortgagees and that they had not been receiving profits, and it decreed the suit of the plaintiff against all the defendants, except the heirs of defendant 4. The defendants, with the ex ception of course of the heirs of defen dant 4, appealed and two points have been strongly urged before us by Mr. Ambika Prasad Dube on behalf of the appellants. It is first contended that burden of proof was wrongly thrown upon the defendants by the lower appellate Court. This contention is based on Section 44, Revenue Act. Mr. Ambika Prasad Dube contends that the burden of proof was on the plaintiff in the first place to establish his contention that the defendants were not mortgagees and had not been receiving profits'. Whether or no this contention would be sound as a general proposition it is not necessary for us to determine, for in every case it must be a question for consideration in that case as to how much and what evidance is necessary before the plaintiff can be considered to have prima facie deprived the revenue record of such value as it may have in raising an in ference that the defendants are entitled to the rights which are recorded in their favour. The present ease is not one where the Court has said:
I do not call upon the plaintiff to prove anything at all. It is for the defendant to establish his rights.
6. The plaintiff admittedly put three witnesses into the witness-box and denied that the plaintiff was in possession, had any rights or had been receiving any profits at all, other of course than those which he had succeeded in obtaining from the revenue Court, on the basis of the entry of his name which has now been challenged. It is difficult to see what more could be expected of the plaintiff before the defendants were called upon to give proof in support of their own contention. In this respect we agree with the lower appellate Court.
7. The next contention is that the suit should be held to have abated not only against the heirs of defendant 4 but against all the defendants. In support of this contention we are referred to the full Bench decision in Fakira v. Hardeva : AIR1928All172 . In our view that case is entiraly distinguishable. The whole basis of the decision in that case was that the consequence of holding that the whole suit did not abate or the whole appeal did not abate would be that there would be two contradictory decrees. That owing to the shares of the second party of defendants being joint and in no way whatever separate, the result, if the whole appeal did not abate as regards that whole party of defendants, would be that, to put the matter simply there would be two persons A and B each having separate rights over the name share. That case is entirely distinguishable from the present. We have invited counsel for the appellants more than once to show us how two contradictory decrees would result from holding in the present case that the suit abated only against defendant 4's heirs. He has been unable to show this. It is not for us to anticipate any decision that may have to be arrived at in subsequent proceedings if unfortunately such proceedings follow. But it is manifest that the only result of our holding in this case, in view of the preceding history of it, that the appeal does not abate against all the defendants, is that all the defendants except the heirs of defendant 4 will be declared to have no rights of any sort in the property. As to the heirs of defendant 4, the result will not be to declare that they have any rights at all. The only result will be that the plaintiff's present suit against them stands dismissed. If in the future the plaintiff refuses to hand over the whole or any share of the profits to the heirs of defendant 4, it will be for them to determine whether it is worthwhile or not to sue for the whole of the profits or a share of the profits in the revenue Court and it may or may not have to be determined in such a suit whether the heirs of defendant 4 are entitled to any share or to the whole of the profits. But as the matter stands as the result of the decree of the lower appellate Court, there is no question of any contradictory decree. We hold, therefore, that the decision of the Full Bench in the case to which we have referred is not applicable to the facts of the present case. The appeal and the cross-objections are, therefore, dismissed with costs.
8. Mr. Ambika Prasad Dube has argued his case with care and concision and has been of great assistance to us in this case.