1. The plaintiff, who is the Rajah of Pithapur, brought this suit under Section 6 of the Madras Act (I of 1876) (Madras Land Revenue Assessment Act) to have it declared that the suit lands should be separately registered in the name of the 2nd defendant. To establish a cause of action for a suit of this nature, it is essential that the property which the plaintiff wishes to have separately registered should have once formed part of his permanently settled estate and should at the time of the suit belong to a different owner. Accordingly in his plaint it was averred that the lands described in the schedule and situate in the village of Dangeru were portions of the permanently settled estate of Pithapurani and were alienated by plaintiff's ancestors in favour of the predecessors-in-title of defendants 2 to 19. The defendants in their written statement counter-pleaded that the suit lands were gifted to their ancestors by the Nizam of Hyderabad before the Permanent Settlement.
2. When the case came on for trial, the vakils on either side and the District Munsif brushed aside these material averments of the contesting parties and without having an issue on the point of facts on which the parties fundamentally differed and without examining a single witness or filing a single document, allowed the suit to be disposed of upon a discussion of a point of law which was already settled by a Bench of this High Court in Pusarla Peda Brahinaji v. Krishnamachariar (1919) 11 LW 389 namely, the transfer of ownership by prescription is an alienation within the scope of the preamble to Act [ of 1876.
3. There is no reason to suppose that the defendants, who are the appellants before us, desired to abandon their defence without even putting the plaintiff to the proof of his title. In their appeal to the District Court they made it one of the grounds of appeal that the Lower Court should have framed an issue about the grant to them in the time of the Muhammadan Rulers and should have found that the suit lands did not form part of the plaintiff's estate. The Subordinate Judge thought he could dispose of this point by deciding upon whom the burden of proof lay and by drawing presumptions. But he wrongly placed the burden of proof on the defendants of showing that the income of these lands did not form part of the assets of the zemindari, although that was a matter peculiarly within the knowledge of the zemindar and of the Government represented by the Collector who was impleaded as 1st defendant and although it formed the basis of the plaintiff's suit. Even if the defendant's lands lie geographically within the limits of the zemindari, there is no presumption that in settling the peishcush to be paid by the zemindar under Regn. XXV of 1802, the income of all the lands in every village of the estate was taken into calculation. If the plaintiff proved nothing and the defendants admitted nothing, the plaintiff's suit must fail. As between the zemindar and the Government the onus of proving that any portions of the estate were reserved at the time of assessment might lie on the Government [vide Secretary of State for India v. Kirtibas Bhupali Harichandan Mahapatra 28 MLJ (PC)] but in the present suit, Government, though made a party, did not actively contest the suit. As between the plaintiff and the other defendants who were not privy to the settlement of the peishcush, the distribution of the onus of proof is different.
4. Owing to the manner in which the case was conducted in the District Munsif's Court, the parties have not joined issue or adduced evidence upon the most vital point for the decision of the case. It is probable that neither side realised the importance of this point to his ultimate success or failure m the suit.
5. We must, therefore, call for a finding from the Subordinate Judge upon the question whether the suit lands were included in the assets of the Pithapur zemindari at the time of the Permanent Settlement. Either side may adduce evidence. Finding to be returned within two months. Seven days for objections.
[In compliance with the order contained in the above judgment the Subordinate Judge of Amialapuram submitted the following]
6. Finding :--The High Court having remanded the case for a finding on the question
Whether the suit lands were included in the assets of the Pithapur zemindari at the time of the Permanent Settlement.
7. Defendants also have, therefore, failed to prove that the suit land was one of the lands granted to them as manyam under Ex. III.
8. The burden of proof is on the plaintiff only. But as he has, in my opinion, failed to discharge it satisfactorily, I find the point against him.