1. We think that this case must go back to the Court of first instance for re-trial.
2. The defendant is in possession of the land and the plaintiff sued for declaration of his title and for recovery of possession. But as the defendant stated that the plaintiff was his benamdar, the Court below held that 'unless the defendant could show some title, he was a mere trespasser and he was, therefore, bound to prove that the plaintiff was his benamdar before the case could be tried upon its merits.'
3. The defendant never admitted the title of the plaintiff and as he was the person in possession of the property, it was for the plaintiff to prove that he, the defendant, was not the owner, see Section 110 of the Evidence Act, Huri Ram v. Raj Coomar Opadhya 8 C. 759 : 4 Ind. Dec. (N.S.) 490 and Mookto Keshee Debee v. Anundo Chunder Chattopadhya 2 C.L.R. 48.
4. The cases relied upon on behalf of the respondent were cases where the plaintiff who was out of possession asserted the transaction to be benami and the onus was held to be upon him.
5. In the case of Satya Moni Dassi v. Bhuggobutty Churn Chattopadhya 1 C.L.R. 466 the plaintiff was in possession, but it appears that he had adduced evidence and there was really no question of onus of proof at all.
6. We are accordingly of opinion that the decrees of the Courts below must be set aside and the case sent back to the Court of first instance for re-trial.
7. Costs to abide the result.