Tottenham and Agnew, JJ.
1. In this case it appears that the plaintiff on the 6th April 1871 purchased the whole of a certain zamindari at a sale for arrears of revenue. The present suit is for possession of 24 bighas of mal land appertaining to certain notes in the zamindari. The defendants contend that the land is lakheraj. The lower Appellate Court held that the onus was on the plaintiff to show that the lands were mal, that he had failed to discharge it, and dismissed the suit. The case of Bacharam Mundul v. Peary Mohun Banerjee I.L.R. 9 Cal. 813 in which the decision was based upon a ruling of the Privy Council in Harihar Mukhopadhya v. Madab Chandra Babu 8 B.L.R. 566 : 14 Moore's I.A. 153 is a distinct authority for holding that in a suit for resumption of lands, when the defendant alleges that the lands are lakheraj the onus is on the plaintiff, in the first instance, to show that the lands are mal, and that if he fails to make out a prima facie case the suit should be dismissed. The cases of Newaj Bundopadya v. Kali Prosono Ghose I.L.R. 6 Cal. 666 and Akbur Ali v. Bhyea Lal Jha I.L.R. 6 Cal. 543 upon which the other side relied, assumed the lands in dispute to be within the ambit of, or intermingled with, lands admittedly held as mal. In the present case upon the pleadings no such assumption can be made. We think, therefore, that the District Judge was right in dismissing the suit upon this ground. That being so, it becomes unnecessary o consider the other questions as to res judicata and limitation which were argued at the hearing. The appeal is dismissed with costs.