1. The question arises, upon the respective allegations made by the plaintiffs and the defendants, whether the plaintiffs are bound to prove, before they can succeed, that the holding is of a non-transferable character, or whether they are entitled to recover, if the defendant Durga Govind fails to prove that the holding is transferable.
3. It seems to us, upon the admitted facts of the case, that the onus lies upon the defendant, and that he cannot succeed in his defence unless it be proved that he has a title to hold the land as a tenant under the plaintiffs, or in other words that the holding is of a transferable character.
4. The land in suit is admittedly a part of the plaintiffs' putni; and as such, they are prima facie entitled to the possession of it, and it is for the person who questions their right to possession, by setting up a subordinate tenure, to establish his title. The defendant, Durga Govind, in the present case, sets up as against the plaintiffs a permanent and transferable tenure, and if he proves it, and not otherwise, he would be entitled to be in possession. One test which may well be applied in a case like this is, who would win if no evidence were given on either side, and it seems to us that, upon the facts admitted, the plaintiffs must win if the defendant does not prove the case set up by him.
5. The question appears to us to be concluded by the authority of the Privy Council in the case of Perhlad Sein v. Doorgapershad Tewaree 12 M.I.A. 322; as also by Suhodwa v. Smith 12 B.L.R. 82 : 20 W.R. 138; Ram Monee Mohurir v. Aleemooddeen 20 W.R. 374; Rajkishen Mookerjee v. Peare Mohun Mookerjee 20 W.R. 421; Beharee Sahoo v. Puryag Mahtoon 23 W.R. 291; Hyes v. Moneerooddeen Ahung 24 W.R. 6; and Batai Ahir v. Bhuggobutty Koer 11 C.L.R. 476.
6. The learned vakeel for the respondent, in the course of his argument, relied very strongly upon a ruling by a Division Bench of this Court, viz., Doya Chand Shaha v. Anund Chunder Sen 14 C. 382. That case is no doubt in his favour, but it seems to us that we are bound to follow the principle of law laid down by the Judicial Committee in the case referred to above. There the plaintiff, as zamindar of Ramnuggur, sued the defendant to evict him from two mouzahs forming part of his zamindari, on the allegation that they had been made over to the defendant's father in lieu of allowance for rendering service; that the service tenure had been determined by the dismissal of the grantee from service; and that the mokurari set up by defendant was untrue. The defendant claimed to hold it as a mokurari granted to his father. The Courts in India found that the plaintiff had failed to prove the precise case set up by him, and that there was no proof of any lease other than the mokurari pottah, and then upon the evidence held that the mokurari was genuine. The Judicial Committee on appeal were also of opinion that the evidence adduced by the plaintiff was weak and defective, but notwithstanding this finding, they did not agree in the decision of the High Court. They observed: 'But even if it be admitted that the appellant had failed to establish the particular case alleged by him, it does not follow that the Courts below were right in leaping to the conclusion that the respondents had established their right to hold the lands under their mokurari tenure. It is possible that the reward to Muddun Mohun Tewarree may have been an assignment of the rent of the villages to him for his life or other life interest. The appellant is the zamindar; as such he has a prima facie title to the gross collections from all the mouzaha within his zamindari. It lay upon the respondents to defeat that right by proving the grant of an intermediate tenure. In their Lordships opinion there is, in the record before them, no satisfactory proof of the deed relied upon, or of any right or interest in these villages beyond at most the lifetime of Muddun Mohun Tewarree.'
7. No doubt what was set up by the defendant in that case was the grant of an intermediate tenure, but this circumstance does not make any difference in the principle which their Lordships laid down, and which we are bound to apply in this case.
8. And applying that principle, it seems to us that, unless the defendant can prove the tenure set up by him, viz., a permanent and transferable tenure, the plaintiff, the admitted landlord, is entitled to enter into possession. And this view has been almost uniformly taken by this Court, as would appear from an examination of the cases quoted above.
9. The learned vakeel for the respondent also relied upon the remarks of the Judicial Committee in the case of Sumbhoo Lall v. The Collector of Surat 8 M.I.A. 1, the said r6marks being in p. 39. But it will be observed on examination that they are based entirely upon the facts as found by the Judicial Committee on pp. 38 and 39.
10. Upon all these considerations we are of opinion that the onus of proof in this case is upon the defendant.
11. The Court of first instance, as already mentioned, held, as we understand its judgment, that the defendant had failed to prove that the tenure was of a permanent and transferable character, he having given no evidence in support of his allegation. There is no finding by the Appellate Court upon this part of the case, and we accordingly called upon the vakeel for the respondent to state what evidence there was supporting the case for the defendant, and he frankly admitted that, beyond the fact that upon a former occasion the property had been sold in execution of a decree, there was no evidence showing that the tenure was transferable. The landlord was no party to this sale, and there is nothing to show that he accepted the purchaser as his tenant. That being so, it seems to be perfectly clear that the defendant has not given any evidence to establish that he has acquired a title by his purchase.
12. The next question that arises is, whether the plaintiffs are entitled to recover khas possession. It is said that the tenant Mongola Akund has not abandoned the holding, but that he is in occupation under a sub-lease granted by Durga Govind Sirkar, the purchaser. We do not propose to decide any question that may hereafter arise as between Mongola Akund and the plaintiffs, he being no party to this suit.
13. It is sufficient for the purposes of this case to say that the defendant Durga Gobind has no right to retain possession of the land in suit, and to resist the claim for possession on the part of the plaintiff. This view is supported by the Full Bench decision in the case of Narendra Narayan Roy v. Ishan Chundra Sen 13 B.L.R. 274 : 22 W.R. 22.
14. The result is that the order of the lower Appellate Court must be reversed, and the decree of the Court of first instance restored with all costs.