1. The defendants 1, 5 and 6 are the appellants in this case. The suit was brought by the plaintiff to eject the defendants from a house-site. The plaintiff obtained a patta from Government on the 29th March, 1917. Even at the time of the grant by Government, the defendants objected. The plaintiff went to a Criminal Court which dismissed the complaint on the ground that it is of a civil nature. The defendants pleaded that the suit site had been in the possession of themselves and their ancestors for a long time and the plaintiff could obtain no title to the suit land by the mere fact that Government issued patta in respect of that and that they did not trespass upon it recently. They also pleaded that a penalty was levied upon them by the Tahsildar for encroachment and that on appeal that encroachment fee was cancelled. The second issue in the case runs as follows : Whether the said grant is not binding on the defendants : whether the site belonged to them? In my opinion this issue is not properly framed. Merely because Government have issued a patta to somebody, there is no presumption that Government are entitled to the land of which they purported to make a grant, and it is always for the grantee to make out that the grantor, Government in this case, has any title. The second issue should have run as follows : Whether the said grant binds the defendants and whether the plaintiff is entitled to the suit site? The only difference in the frame of the issue is the change in the burden of proof. The onus lies on the plaintiff and not on the defendant, The District Munsif, however, found on this issue that the defendant and their ancestors had been enjoying the suit site for a long time and found the ' issue against the plaintiff and in favour of the defendants. On appeal the learned District Judge finds that the defendants have not made out a prescriptive title against Government. This finding assumes that the title of Government is either made out or admitted, but the title of Government has never been admitted or has never been made out in the case. The learned District Judge is no doubt right in saying that, as the issue stood, the burden of proof is on the defendants. But, as already pointed out, the issue is not properly framed, but it ought to be framed so as to throw the burden of proof on the plaintiff.
2. I therefore set aside the judgment of the District Judge and remand the suit for disposal according to law. The Lower Appellate Court will now find if the plaintiff has made out the title of Government at the time of grant. Only if such a title is made out, the plaintiff would get any title under the issue of patta by Government. It must be remembered that the defendants were in occupation for a long time and that itself is prima facie evidence of their title; but, even if they have no title to the suit land, the plaintiff cannot succeed in this suit before making out the title of his grantor. Now that the form of the issue is changed, I think it ought to be open to both parties to adduce fresh evidence. The District judge might either take it himself or direct the District Munsif to record the evidence and send it up.
3. The appellant will get a refund of the Court-fee paid for this appeal. Costs of this appeal will abide the result.