1. It has been contended before us that the lower Appellate Court ought to have presumed under Clause (e), Section 114 of the Evidence Act, that the Collector did issue a notice in accordance with the provisions of Section 52.
2. We are of opinion that Clause (e) of Section 114 is not applicable to the present case, and that the lower Appellate Court was right in not making any presumption in favour of the publication of the notice prescribed in Section 52.
3. Reading Sections 52 and 53 together, it appears to us that the object of the notice prescribed by Section 52 is to inform the tenure-holder, who would be affected by the valuation-roll, of the amount assessed, so that he might come in and object, and have it altered if there be reasonable grounds for such alteration. This appears to be quite clear from Section 53. That being so, it seems to us that the publication of the notice was a condition precedent to the tenure-holder being bound by the valuation-roll prepared by the Collector.
4. That being so, we are of opinion that no presumption ought to be made under Clause (e) of Section 114 in favour of the condition precedent having been observed. Where under an Act certain things are required to be done before any liability attaches to any person in respect of any right or obligation, it is for the person who alleges that that liability has been incurred to prove that the things prescribed in the Act have been actually done. No presumption can be made in favour of the things prescribed by the Act leaving been done.
5. That being so, we are of opinion that the lower Appellate Court was right in holding that the defendant No. 4 is not bound by the valuation-roll prepared by the Collector, because it was not shown that any notice under Section 52 of the Road Cess Act had been duly issued. The appeal as against him must therefore be dismissed with costs.
6. As regards the defendant No. 1, unless the judgment of the Munsif proceeded upon a ground common to him and to the defendant No. 4 the Appellate Court would have no power to reverse the decree against him (the defendant No. 1).
7. In this case, as I have said before, the defendant No. 1 did not enter appearance, and the Munsif's judgment against the defendant No. 4 proceeded upon his admission that he was in possession of a portion of the tenure mentioned in the plaint. Whatever, therefore, may have been the ground upon which the decree against the defendant No. 1 was based, it could not have been the ground upon which the decree against the defendant No. 4 proceeded, because that was based on his admission, and that was a ground which could not apply to the defendant No. 1, who did not appear before the Munsif. It is, therefore, clear that the judgment of the Munsif did not proceed upon a ground common to the defendants Nos. 1 and 4.
8. That being so, the lower Appellate Court had no power to set aside the decree against the defendant No. 1, on the appeal of defendant No. 4,
9. We, therefore, set aside the decree of the lower Appellate Court so far as the defendant No. 1 is concerned, and restore the decree of the Munsif against him with costs.