Prinsep and Trevelyan, JJ.
1. On the first point raised in second appeal, that is regarding the nature of these suits, we agree with the District Judge. They are on behalf of the purchaser of an under-tenure under Sections 59, 60 of the Rent Act, to obtain possession of lands held by the defendant, on the ground that the holdings were incumbrances which have accrued thereon by an authorized act of a previous holder of that under-tenure. The plaintiff's ease is not, as now contended before us, that the defendants were trespassers without any title, but that the title under which they held was voidable by the auction sale, and the object of the suits is to enfore the rights obtained by that sale.
2. It therefore becomes necessary to determine the next and main objection raised, that the burden of proof lies on the defendants to prove their title to remain on the lands.
3. It seems to us that a purchaser of an under-tenure who seeks to enforce his rights under Section 66 of the Rent Act is bound to show that the person whom he seeks to eject holds under an incumbrance of the nature therein specified--an incumbrance that he is entitled to avoid. The law does not provide that he shall obtain the under-tenure free of all incumbrances, but only 'of incumbrances which may have accrued thereon by any holder of the said under-tenure,' without special authority from his landlord. Consequently the plaintiff must start his case by showing that the title of the defendant so accrued.
4. The only case quoted to us which is exactly in point is the case of Durga Prasanna Ghose v. Kali Das Dutt 9 C.L.R. 449. The same point was raised in that case, and the opinion expressed is that which we now entertain. The other case quoted, namely Batai Ahir v. Bhuggobutty Koer 11 C.L.R. 476 and the two cases Ram Monee Mohurer v. Aleemoodeen 20 W.R. 374 and Raj Kishen Mookerjee v. Pearee Mohun Mookerjee 20 W.R. 421 cited therein and followed by that decision, proceed on entirely different grounds. The plaintiffs in these cases were admittedly proprietors of the lands and, as such, were entitled to exercise all the ordinary rights of ownership; and it was held in all these cases that the defendants who disputed the landlord's right to collect rents from the tenants directly, on the ground that they held intermediately, were bound to establish their title. As the plaintiff has failed to prove that the defendant holds under an incumbrance voidable under Section 66 of the Rent Act, the suits have been properly dismissed. We accordingly dismiss these appeals with costs.