Francis Maclean, C.J.
1. There are three questions for decision in this appeal. Upon the question whether the plaintiff is estopped by the statements in his petition, which is set out at page 28 of the paper-book, I have felt some little doubt upon the point, but on the whole I do not think that the statements are sufficiently precise to prevent the plaintiff from saying now that he has a protected interest in this osut taluk.
2. Upon the question whether the records in the attachment proceedings, Exhibits 156 to 58, are admissible as evidence in this case as against the defendants, I think that if the plaintiff can show that there has been a possession in accordance with the recitals in those documents, a possession consistent with them, then the documents, as ancient recorded documents, would be admissible.
3. Then upon the question, which is the main question in the case, namely, upon whom the onus of proof lies, I am unable to agree with the view taken by the Court below. The plaintiff sets up that his osut taluk is a protected interest within the meaning of the section of the Bengal Tenancy Act which has been referred to; the defendant, on the other hand, sets up that this is an incumbrance which he is entitled to avoid or to annul. In that state of circumstances, I do not see why the ordinary rule should not apply, namely, that the plaintiff must make out the case upon which as plaintiff he relies. The onus of making out that case must rest upon him.
4. There was one other short point, namely, whether the notice under Section 167 of the Bengal Tenancy Act was properly given under that Act, that is to say, whether it was given by the person who ought to have given it. We are not in a position to decide that point upon the materials before us. If the sale certificate were made out in the name of the benamidar, then in my view he would be the proper person as the certificated purchaser to give the notice under the Act. No one can tell us in whose name the sale certificate is made out. So we cannot say whether the notice was given by the right person,
5. The result, in my opinion, is that there must be a remand to the lower Appellate Court and on that remand the plaintiff must make out that the interest which he says is protected is a protected interest within the meaning of the Act.
6. The costs of this appeal will abide the ultimate result.
7. I am of the same opinion. I only wish to add that I base my decision upon the question of the admissibility of the documents referred to in the argument, namely, Exhibits 156 to 158, not only upon the reasons mentined in the judgment of the learned Chief Justice but also upon the ground that they are admissible under Section 13 of the Evidence Act. I further wish to add that I base my decision upon the question of the burden of proof more upon the ground that the party setting up the protected incumbrance is the plaintiff in the case and he should, therefore, prove his case than upon any reasons deducible from the language of the Bengal Tenancy Act.