Ghose and Rampini, JJ.
1. This suit arises out of proceedings taken for the record of rights under the provisions of Regulation III of 1872 (Sonthal Pergunnahs Settlement). A contest then arose between the plaintiff on the one hand, and the defendant, who is the zemindar, on the other hand, whether certain lands held by the former were his lakhiraj or rent-paying mal lands of the zemindar. There wore various proceedings in connection with the determination of this matter, and ultimately it was ordered that they should be recorded as mal, and assessed with the rent, the Commissioner of the Division at the same time (26th January 1889) stating that the plaintiffs might, if they chose, bring a suit in the Civil Court.
2. Subsequently, a suit for rent was brought by the zemindar against the plaintiff, upon the basis of the jummabandi prepared by the settlement officer, and an ex-parte decree was obtained.
3. The present suit is by the plaintiff to have it declared that the lands are his lakhiraj, and also to recover possession of some of these lands, the allegation of the plaintiff being that, subsequently to the order of the Commissioner, dated the 26th January 1889, the defendant dispossessed him therefrom.
4. The main defence of the zemindar is that the lands are not lakhiraj, but rent-paying mal.
5. The Court of First Instance distinctly found that the various sunnnds and other documents produced by the plaintiff were genuine, and that they established the lakhiraj title set up by him; and accordingly decreed the suit.
6. On appeal by the defendant, the Deputy Commissioner has affirmed the decree of the Court of First Instance.
7. On second appeal to this Court, two contentions have been raised before us by the learned vakil on behalf of the zemindar : the first is, that, having regard to the provisions of Sections 11 and 25 of Regulation III of 1872, no suit would lie in the Civil Court to contest the correctness of the decision arrived at, and the record of rights made, by the settlement officer; and second, that, in determining the case, the Lower Appellate Court has erroneously thrown the onus of proof upon the zemindar, whereas it ought to have been upon the plaintiff, to prove that the lands claimed were his valid lakhiraj.
8. As regards the first point, it has been contended that it is only when a question of right arises as between two 'zemindars,' or between two 'pro prietors,' that a suit would lie in the ordinary Civil Court to contest the order of the settlement officer, and that the plaintiff, the so-called lakhirajdar, is not a proprietor within the meaning of Section 25 of the Regulation; and the case of Ram Charan Singh v. Dhaturi Singh I.L.R. 18 Cal. 146 has been quoted in support of this contention.
9. We are, however, unable to give to the word 'proprietor' that restricted meaning which the learned vakil for the appellant would give to it. The plaintiff claims under a title hostile to the zemindar he says that the lands are his valid lakhiraj, and that he has held the same as lakhiraj for more than twelve years adversely to the zemindar, and that he has thereby acquired a good title therein. If this title be made out, it would be that of an absolute owner of the property, and in this sense the plaintiff would be as much a proprietor as the defendant himself is. As regards the case cited, we think it has no application to this case. There the question was between the zemindar and another person who claimed to be a mokuraridar Under him; and the settlement officer recorded the lands as mokurari. The zemindar thereupon sued to recover possession of the lands, upon the ground that the defendant had no such interest as was claimed. And it was held, as we understand the decision, that the question raised was not between two 'proprietors' within the meaning of Section 25 of the Regulation. That is not the case here.
10. As regards the other contention, we think that the appellant is right. The settlement officer found that the lands were rent-paying mal; and a decree for, rent was subsequently obtained by the defendant upon the basis of the jumrna-bandi which that officer had prepared. In these circumstances, when the plaintiff seeks to contest the decision of the settlement officer, and to have it declared that the lands are his lakhiraj, the onus is, in the first place, on him to prove that they are so. The learned Judge of the Court below, however, has proceeded in determining this case upon the view that the burden of proof is upon the defendant zemindar. In this, we think, he has fallen into an error.
11. In this connection our attention has been called to a passage in the judgment of the Judge where he makes the following observations: 'As regards the rest of the land, with the exception of the tanks, it appears that the land is admittedly in possession of the plaintiffs, and has been sufficiently identified. He has thus established a prime facie claim to the land as lakhiraj, and the burden of proof is thrown on the respondent.'
12. It has been contended for the respondent that the Judge has here found, putting the onus upon the plaintiff, that he has proved that the lands are lakhiraj, or at any rate, that he has established a prime facie case so as to shift the burden of proof on the zemindar. But we are unable to accept this contention as correct. The mere fact of the lands being in the possession of the plaintiff, and of their having been sufficiently identified, would not entitle him to the declaration he asks for, nor would it make out a prime facie case of the lands being lakhiraj. It has, however, been argued that the Judge has here found that the lands are the same as are covered by the various sunnuds and other documents produced by the plaintiff. It is not clear to our minds whether that is what the Judge meant to find. Moreover, we observe that the defendant raised the question whether the sunnuds were true and whether the grantors of those documents had authority to grant them. Therefore, without dealing with these questions, it is not enough to say that the lands have been identified, supposing that the Judge meant to find that they have been identified with those that are covered by the said documents.
13. In these circumstances, we think it right to remand the case for re-trial. The learned Judge will, after putting the onus of proof in the first place upon the plaintiffs, find whether the lands are valid lakhiraj, and whether they have been held as lahhiray for more than twelve years adversely to the zemindar so as to confer upon him a title by prescription.:
14. Costs to abide the result.