1. It is common ground between the parties to this suit that three persons Nidhi, Suba and Hakim, who were related in some degree to each other, joined in purchasing in the year 1231 certain land, including the land in dispute. The plaintiffs, the respondents before us, are the representatives of Suba and Hakim. The representatives of Nidhi are described by the District Judge as pro forma defendants, but it appears from the judgment of the Munsif that they, as well as the tenant defendants, contested the suit.
2. The plaintiffs brought the suit for a declaration that they were entitled between them as heirs of Suba and Hakim to a two-thirds share of the disputed land and for khas possession to the extent of the share claimed. The defendants alleged that the land purchased in 1281 had long ago been partitioned and that the disputed land had fallen to Nidhi's share.
3. The suit was dismissed by the learned Munsif whose decree, however, was reversed by the learned District Judge on appeal. The respondent tenants claim under a settlement or under-settlements from Nidhi, and both the Courts have found that the lands originally purchased had been partitioned before these respondents were settled upon it and certainly long before 1307, the date to which the plaintiffs ascribed the lease of the kha land. Having come to that finding in agreement with the learned Munsif, the learned District Judge states the questions for decision as follows:---
4. 'The point is, however, whether allowing that plaintiff's story as regards the partition is incorrect, there is anything to show that Nidhi or his successor got the lands in suit on partition.'
5. Now, the plaintiff's story as regards the partition was that it took place in 1307 after the settlement of the disputed land with the respondent-tenants. That story was clearly rejected and it is difficult to see why its rejection should shift the burden of proof on to the defendants in the suit. According to the ordinary rule, the burden was upon the plaintiffs to prove their title. The learned Judge, however, as is apparent from the mode in which he stated the point for decision, placed the burden on the defendants. That he did so is confirmed by his further observation that 'the land having been originally joint, the burden of proof was clearly on defendants to show that Nidhi got it on partition but they have not been able to do so.' We are of opinion that the learned Judge's mode of dealing with the burden of proof was erroneous.
6. Then the Judge goes on to say:---'Both sides clearly set up a false case: so it devolves upon the Court to extract as much truth as possible from the materials before it and plaintiffs no more than defendants can be confined to their original case.'
7. The judgment, read as a whole, seems to us to show that if the Judge had recognised that the burden of proof lay on the plaintiffs, he could not have arrived at a decision in their favour.
8. In the circumstances, we are of opinion that it would be idle to remit the appeal to be re-heard and that the course that we ought to take is to set aside the judgment and decree of the District Judge and restore the judgment and decree of the Munsif with costs of this Court and. of the lower Appellate Court. We order accordingly.