Richard Garth, C.J.
1. So far as the merits of tins case are concerned, we are not called upon hero to adjudicate upon them. The Munsif hay determined the rate of rent which is payable by the defendant, and the District Judge, in his judgment of the 14th February 1877, says, that as regards the Munsifs decision on remand, in which the merits of the case were discussed and settled, the appellant did not raise any question before him.
2. The only point, therefore, which could be, or has in fact been, raised on special appeal in this Court is that of jurisdiction, which was determined in a former judgment of the Officiating Judge, dated the 13th of May 1876, in favour of the plaintiff. That judgment has been reversed by the learned Judge of this Court, and we have to consider the correctness of his judgment upon that point only.
3. The question arises in this way. The plaintiffs, in the year 1862, brought a resumption suit against the defendant's mother (under whom the defendant claims) in respect of the land in dispute, upon the ground that she was holding thorn by an invalid lakheraj title. The defendant in that suit contested the claim, but the plaintiff obtained a decree.
4. It does not appear from the proceedings in that suit, whether the lakheraj grant under which the defendant claimed, was before or after the year 1790; but it was distinctly stated in the decree, that the plaintiff (the decree-holder) was entitled to assess the property.
5. The plaintiff then, after a lapse of some years, brought this suit against the present defendant (who claimed under the defendant in. the resumption suit) to have the rent assessed, and the defendant then set up (by way of plea to the jurisdiction of the Civil Court) that the lakheraj grant under which the defendant in the resumption suit claimed, was previous to 1790.
6. The Munsif, accordingly, framed the ninth issue in the case in these words: 'whether the resumed lakheraj was of anterior date to the 1st of December 1790?'
7. The Munsif considered that the onus of proving the negative of this issue was upon the plaintiffs, apparently because he thought that the plaintiffs ought to prove that the Civil Court had jurisdiction to try the suit, and as the plaintiffs did not prove the negative of the issue, the Munsif dismissed the suit.
8. On appeal, the Officiating Judge reversed the Munsif's decision, and remanded the case to be tried upon the merits. He considered that the case of Ranee Shama Soonderee v. Situl Khan 8 B.L.R. App. 85 : S.C. 15 W.R. 474 was an authority in the plaintiffs favour, and that the onus of proving the ninth issue lay upon the defendant.
9. On special appeal the learned Judge of this Court thought the Officiating Judge was wrong, and he restored the Munsif's first judgment, upon the ground, that as the jurisdiction of the Court to entertain the suit had been impugned, it was for the plaintiff to prove that the Court had jurisdiction.
10. After fully considering the point, we are unable to agree in the learned Judge's conclusion. The objection made to the jurisdiction of the Court was raised affirmatively by the defendant, by a statement that the lakheraj grant was previous to 1790. The affirmative of the ninth issue, which was framed to meet that allegation, was asserted by the defendant, and by the 101st1,; and 103rd I sections of the Evidence Act, the burthen of proving any particular fact in issue lies upon the party who assorts that fact.
11. Moreover, in this case, the rulelaid down in Section 1061 of the Evidence Act is in favour of the plaintiff's' view, because if the defendant and her ancestors held and claimed to hold this property under a lakheraj grant, the terms and the date of that grant would certainly be rattier within the knowledge of the defendant than of the plaintiff.
12. It is perfectly true, as observed by the learned Judge, that if the grant had in fact been made previously to 1790, the Collector's Court would have had jurisdiction to assess the revenue upon the property (See Keg. XIX of 1793, Sections 6 to 9). But this fact raises no presumption in favour of the grant having been made prior to 1790. On the contrary, if any presumption were to be made as regards jurisdiction, it would be in favor of the ordinary and general tribunals of the country, to the exclusion of any special jurisdiction exercised under a particular Statute by the Collector, and if any presumption could he made in this case from the proceedings in the resumption suit, it would Certainly be in favour of the plaintiff, because the decree in that suit contains a declaration 'that the plaintiff is entitled to assess the lands.'
13. We think, therefore, that having regard to the rules laid down by the Evidence Act, as well as to the general law and the circumstances of this particular case, the onus of proving the affirmative of the ninth issue was upon the defendant.
14. The judgment of the High Court will, therefore, be reversed, and the judgment of the District Court restored with costs in both Courts.