1. This was a suit for resumption of 7 bighas 15 chittacks of land held by the defendant under an alleged lakhiraj title. The plaintiff is the representative of an auction-purchaser, and the suit was commenced within twelve years from the date of auction-purchase. The plaintiff alleged that the land in suit appertained to the mal estate, and was held under the pretence of a lakhiraj title by withholding payment of mal rent only from a comparatively recent time. The defendant alleged that the lands in suit were valid lakhiraj. At first both the Courts below dismissed the plaintiff's suit, notwithstanding that they held that the onus of proof in such a case as this was upon the defendant. The lower Appellate Court, on an application of review having been made, has given to the plaintiff a decree for a portion of the land, holding that the defendant has failed to establish his case with reference to it. The defendant has preferred this special appeal against that decision.
2. The only question raised before us is that the lower Courts were wrong in throwing the burden of proof upon the defendant. We think this contention is valid, and is supported by a Full Bench decision of this Court--Parbati Churn Mookerjee v. Raj Krishna Mookerjee B.L.R. Sup. Vol. 162 and a decision of the Judicial Committee of the Privy Council in Harihar Mukopadhya v. Madab Chandra Babu 8 B.L.R. 566 : S.C. 14 Moore's I.A. 152.
3. The learned pleader for the respondent, on the other hand, contends that the Full Bench decision quoted above does not apply to this case, because the plaintiff represents an auction-purchaser, and it has been so decided by this Court in three cases--Forbes v. Sheikh Mean Jan 3 W.R. 69 Shamlal Ghose v. Sekunder Khan 3 W.R. 182 and Nobolal Khan v. Adheranee Narain Kunwaree 5 W.R. 191. The first two cases fully support his argument, and it can be inferred from the report of the third case, that the learned Judges, who admitted the application of review referred to in it, were also of that opinion.
4. But we think that the question before us has been conclusively set at rest by the Privy Council judgment referred to above. Although from the report of that case it does not appear whether the plaintiffs there any way represented auction-purchasers for Government revenue or not, yet an examination of the grounds upon which it is based shows that its principle is applicable to cases of ordinary nature as well as of auction-purchases.
5. In the first part of the decision, the remarks of the Judicial Committee who passed it proceed to examine the provisions of the Regulations bearing upon the question, and the result according to that examination was that suits for resumption of invalid lakhiraj lands that existed at the time of the permanent settlement were dealt with under the provisions of a special and exceptional Regulation, viz., Reg. II of 1819. In such suits there is a presumption in favour of the plaintiff arising out of the declaration made in the Regulations that 'the ruling power' was entitled prima facie 'to a certain proportion of the produce of every biga,' that in these exceptional cases the defendant has generally to support the burthen of proof.
6. 'The invocation of the 30th section of Reg. II of 1819' they observe 'is not mere matter of form to be rejected as surplusage. The effect of it is to cause the case to be tried according to the procedure and presumptions prescribed by that enactment and the enactments in pari materia greatly to the advantage of the plaintiff, and consequently to the prejudice of the defendant' 8 B.L.R. 578 : and 14 Moore's I.A. 172.
7. This was not a suit under the 30th section of Reg. II of 1819, and in fact by the provisions of Section 14 of Act XIV of 1859 (which provisions have been re-enacted in the present Limitation Act), such a suit now cannot be maintained with success. Because once you admit that the lakhiraj tenure existed at the time of the permanent settlement, and this must be admitted to bring the case within Reg. II of 1819, you are hopelessly barred. Therefore the presumption which arises in such suits in favour of the plaintiff, and which relieves him from any burthen of proof further than to establish that the land in suit is within the ambit of his estate, does not arise in favour of the plaintiff in this case by reason of the special provisions of the lakhiraj regulation mentioned above. Then let us see whether that presumption avails the plaintiff in any way in a suit like the present which was brought upon the allegation, that the lands sought to be resumed did not form any existing lakhiraj tenure at the time of the permanent settlement, but were assessed with revenue and constituted a part of his mal estate. The presumption in question carries the plaintiff's case no further than this, that every biga of land, within the ambit of his estate under the provisions of the lakhiraj regulation, was liable to be assessed with Government revenue, and the title to especial exemption must be made out by the party setting it up. But this is not sufficient to start a case for the plaintiff in a suit of the present description, because there is no presumption that every biga of land within the ambit of an estate must be deemed to have been assessed with revenue until the contrary is proved. The following passage from the Privy Council report referred to above shows that it is upon this ground that the Judicial Committee have held that the burden of proof in these cases is upon the plaintiff.
8. 'Again their Lordships think that no just exception can be taken to the ruling of the High Court, touching the burthen of proof, which in such cases the plaintiff has to support. If this class of cases is taken out of the special and exceptional regulation concerning resumption suits, it follows that it lies upon the plaintiff to prove & prima facie case. His case is that his mal land has since 1790 been converted into lakhiraj. He is surely bound to give some evidence that his land was once mal' 8 B.L.R. 579 : and 14 Moore's I.A. 173, 174.
9. Then further on they observe: 'Mr. Doyne argued that the defendants had admitted that the lands in question were within the appellant's estate. But such an admission is obviously not sufficient to meet the burthen of proof thrown upon the plaintiff. It was at most an admission that the lands were within the ambit of the estate, not that they had ever been mal lands.'
10. Now these are the grounds upon which their Lordships of the Judicial Committee have held that the burthen of proof is upon the plaintiff, and unless we hold that in the case of an auction-purchaser as soon as it is proved that a particular plot of land is within the ambit of his estate, there arises a presumption in his favour that it was assessed with revenue at the time of the permanent settlement, there seems to be no valid reason why we should hold that the grounds are not applicable to the present case. Therefore, notwithstanding the decisions of Forbes v. Sheikh Meanjan 3 W.R. 69 Shamlal Ghose v. Sekunder Khan 3 W.R. 182 and Nobolal Khan v. Adheranee Narain Koonwaree 5 W.R. 191 cited on behalf of the respondent, we must hold on the authority of the Privy Council decision quoted above that the lower Courts have erred in relieving the plaintiff from the burthen of proof which ordinarily falls upon him. How far has the plaintiff been able to discharge that burthen it is not for us in special appeal to decide. We must, therefore, reverse the decree of the lower Appellate Court so far as it is favourable to the plaintiff, and remand the case to that Court for re-trial as regards the particular portion of the claim which was decreed in his favour. Costs to abide the result.
11. I concur in this judgment, and, in doing so, I do not forget that I at one time held a different opinion.