1. We think this case must go back to the lower appellate Court for a fresh trial of the appeal.
2. The plaintiff sued to eject the defendants from an under-tenure held within a taluk which had been sold for arrears of revenue and had been leased by the auction-purchaser to the plaintiff.
3. The substantial pleas raised for the defence were that the plaintiff was only a benamidar for one of the original defaulters, and therefore had no right to take advantage of Section 37 of the Revenue Sale Law (Act XI of 1859) that the tenure in question was one of those expressly protected under that section; and that neither the plaintiff nor any other auction-purchaser could set it aside under its provisions.
4. The Court of first instance dismissed the suit, finding that the plaintiff was a benamidar for one of the defaulters. The Munsif also found that the defendants had failed to make out that the tenure in question was one protected by Section 37.
5. The plaintiff having appealed to the Subordinate Judge of Khoolnah, his appeal was dismissed upon the question which the first Court had found in his favour, namely, the Subordinate Judge was of opinion that the plaintiff was bound to prove that the under-tenure in question was one of a kind which he was entitled to avoid; and, finding that the plaintiff had not adduced any evidence on this point, he dismissed his suit, considering it unnecessary to determine the question of benami.
6. We think that the Subordinate Judge was mistaken in dismissing the suit merely upon the ground that the plaintiff had failed to prove that the tenure was violable. The suit is governed by Section 37 of Act XI of 1859, and that section, dealing separately with encumbrances and under-tenures, lays down that the auction-purchaser shall be entitled to avoid all under-tenures and to eject the holders of them with certain exceptions, and then goes on to set out the exceptions. In the present case the defendants plead that they come under one of the exceptions. It appears to us that the presumption is in favour of the general proposition of law laying down that all under-tenures are voidable, and that the person pleading a certain exception is bound to bring himself within it. That being so, it will be for the defendant in this case to bring himself within the exception which he pleads.
7. The pleader for the respondent relies greatly upon the case of Gobind, Nath Shaha Chowdhuri v. Reily 13 C. 1 as showing that the plaintiff would be bound to prove that the tenure was voidable. That case, however, was decided under a totally different law, namely, Bengal Act VIII of 1869. Section 66 of that Act is not in the same terms as Section 37 of Act XI of 1859, and the case of Gobind Nath Shaha Choivdhuri v. Reily 13 C. 1 is upon the words of Section 66. We cannot assent to the proposition of the learned pleader for the respondent that these two sections are substantially identical.
8. We think, therefore, that the decision of the lower appellate Court is clearly based upon an error in law, and that his judgment and decree must be set aside and the case go back to him for a fresh trial upon all the points raised. If necessary, the Subordinate Judge will be at liberty to allow the parties to adduce fresh evidence. The costs will abide and follow the result.