1. The plaintiff in this case sued to recover possession of certain lands as mal, on the ground that his title had been impugned by an adverse order in the case No. 1654 of 1879. The defendants denied that the lands were mal, and claimed them as their rent-free holding.
2. The first Court dismissed the suit. On appeal the Subordinate Judge was of opinion that the onus of proving that the land was lakheraj lay upon the defendants, and finding that they had not proved it to be so, he decreed the claim. The findings of fact upon which his decision is based are--first, that the defendants are the plaintiff's tenants in respect of certain mal lands; and, second, that the lands which are alleged to be lakheraj, and which form the subject of this suit, are within the ambit of the plaintiff's zamindari. In the case of Hurryhur Mukhopadhya v. Madhub Chunder Baboo 8 B.L.R. 566 : 14 Moore's 1. A. 153 their Lordships of the Privy Council declared that in suits for the resumption of lands alleged to be held as lakheraj the onus lies on the plaintiff. They said: The only other point to be decided on this appeal is, whether there is any peculiarity in this case, which ought to take it out of the general rule. Their Lordships are of opinion that there is not. Mr. Doyne argued that the defendants had admitted that the lands in question, with the exception of the small quantity no longer claimed, 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--in fact the defendants strenuously asserted the contrary. The appellant, therefore, having failed to give any evidence on the second trial in support of his amended plaint, the decree dismissing his suit was right.' In this case, as in that, the lands are within the ambit of the plaintiff's zamindari, and as there, so here, the defendants assert that the lands are lakheraj. The Privy Council decision just quoted is binding on this Court, and has been followed by the decisions in Arfunnessa v. Peary Mohun Mookerjee I.L.R. 1 Cal. 378 and Koylash Bashiny Dossee v. Gocool Moni Dossee I.L.R. 8 Cal. 230.
3. It has, however, been argued before us that whore a tenant holds lands in a zamindari, if he claims any other lands as lakheraj, the onus is shifted from the plaintiff to the defendant, and in support of his contention two cases have been brought to our notice. The first is the case of Akbar Ali v. Bhy Ea Lall Jha I.L.R. 6 Cal. 666. In that case if we take certain paragraphs by themselves, it certainly would appear that something in the nature of the proposition now contended for was laid down, but when we turn to the decision of the Chief Justice Sir Richard Garth, we find in his statement of the facts that the land in dispute was included within the ambit of the mal land held by the defendant, and he came to the conclusion that under the whole circumstances of the case the onus was on the defendant. The next case cited is that of Newaj Bundopadhya v. Kali Prosonno Ghose 1. L.R. 6 Cal. 543 reported in 8 C.L.R. p. 7. There the Judges laid down that the onus lay upon the defendants; but no doubt the decision turned on the special facts of the case, and these are not given in the report.
4. In neither of those cases was the judgment of the Privy Council, to which we have already referred, or the subsequent case which followed it Arfunnessa v. Peary Mohun Mookerjee I.L.R. I Cal. 378 quoted. We do not understand those cases to decide that if in an estate a man held one piece of land in one corner and another piece in another corner, because ho paid rent for the former the onus would lie on him to prove his lakheraj title to the latter. Indeed this would he distinctly opposed to the view laid down by the Judicial Committee of the Privy Council. What their Lordships held was that the onus lay on the plaintiff, and he must prove that the land in dispute was part of the mal land of his estate, and that he could do, either by proof of receipt of rent or that its proceeds wore taken into account at the permanent settlement, or by any other sufficient means. And they distinctly declared that, unless plaintiff could make out a prima facie case, that is a case in which he would be entitled to a decree if the defendant did not produce evidence, his suit should be dismissed.
5. In the present case it appears from the schedule to the plaint that the land in dispute is surrounded by other lands hold by the defendants for which rent is paid. This is a matter which should be taken into consideration in dealing with the case. If it be true, as stated in the plaint, that the land is so surrounded by ryotti lands of the defendants, it is some evidence to go before a jury or Judge to show that the land forms part of the tenure of the defendants, and is not their lakheraj holding. But no decree can be passed adversely to the defendants on it, unless the Judge is of opinion that it establishes a prima facie case of the nature already described.
6. The case will be remanded to the Subordinate Judge in order that he may decide whether the land belongs to the tenure of the defendants, or, as is asserted by them, is their lakheraj holding.
7. Costs will abide the result.