1. In this case the plaintiff who is the zamindar of an estate, claims on the ground that, on the 16th March 1854, a service jagir was granted to one Bhola Bhandari; and that the grantee subsequently executed an ikrarnama setting out that the grant was an ordinary service jagir. The plaintiff further states that the grantee has since died, and accordingly claims to resume.
2. The defendant, who is admittedly the lineal descendant of Bhola Bhandari, set up the case that he holds under his sanad, which, he contends, departed from the ordinary terms of a service jagir, inasmuch as it contained the word auladad,--i.e., descendible to heirs generally, both male and female.
3. This sanad has not been produced, and the Court below has found that no satisfactory evidence has been given to account for its non-production. This being the case, the Judge has held that the onus lay upon the defendant to show the special terms of the sanad which he sets up, and in the absence of the sanad or of satisfactory proof to account for its non-production, that this onus has not been discharged. We think that, in so doing, the lower Court has acted rightly.
4. Reference has been made in the course of the argument to the case of Juggerath Sahee v. Mussamut Ahlad Kowur 19 W.R. 140 but in that case there was a material difference from the present, as the defendant there set up a perfectly different grant from that alleged by the plaintiff: and therefore, in default of the plaintiff proving his grant, their Lordships observe that no basis for the action had been laid, in the present instance the grant has been admitted; its terms are proved by the statement of the plaintiff corroborated by the ikrarnama; and the defendant has failed to give either proper evidence of the special terms of the sanad which he sets up, or any legal explanation for its non-production.
5. We think the lower Court was right, under the circumstances, in deciding against the defendant, and this appeal will, therefore, be dismissed with costs.