1. I am compelled, with regret, to confess, that I have not succeeded in bringing myself to take the same view of this case as my learned seniors; and feeling that, under the circumstances, my opinion must be erroneous, I should be glad to let it remain unexpressed. But as Section 5761 of the Code of Procedure seems to require me to state in writing the decision which I think should be passed on the appeal, I think it more respectful to the majority of the Court to state my reasons at the same time.
2. The position of the parties appears to me to be this; the plaintiffs are prim facie entitled to the lands assigned, and this is, I think, sufficient to start their case in seeking to disturb the existing arrangement to them under the butwara. But the defendants plead a special agreement of a permanent nature which entitles them to retain possession as against the plaintiffs of portions of those lands, although admittedly those portions no longer belong to their lessors. It seems to me clear, that it lies upon the defendants to prove their plea to the full; and that the burden is not shifted from them to the plaintiffs merely because the latter have admitted one portion of the plea, viz., that there was an agreement, which, however, they contend, was not intended to be permanent; and which, I believe, in the absence of express conditions, would only remain in force so long as both parties wished to abide by it.
3. The defendants' case depends upon the nature of the agreement, and it is, I think, for them, and not for the plaintiffs, to prove it.
4. No evidence appears to have been given on this point by either party, and the lower Appellate Court, having laid the onus on the plaintiffs, dismissed the suit, because they had not discharged that onus.
5. I am of opinion, that the onus was wrongly placed, and that the decision of the lower Appellate Court ought to be reversed.
6. I would add, that this Court, on second appeal, is not, as it seems to me, competent, either upon consideration of the long continuance of the arrangement, or upon any other consideration, to determine what was the nature of the agreement. That is a pure question of fact which cannot legally be decided on a second appeal.
7. The real defendants in this suit are the patnidars. When, therefore, the plaintiffs sue to eject them from land of which they are found to have been in possession for the last fifty years, it lies upon them to prove conclusively their right to do so. The plaintiffs claim the right solely on the ground that, under a recent butwara by the Collector, the land in suit falls within the block or 'puttee' assigned to them as constituting their four annas share. The patnidars reply that they were no parties to the butwara, and cannot be bound by it. They allege further, that the land in suit forms part of the estate which, prior to the butwara, was, under a private arrangement between them and the plaintiffs, assigned to them as comprising the twelve annas share of the zamindari, which they took in patni from the proprietor of that share; that they have been and are in possession under this arrangement; and that their possession cannot now be disturbed. The plaintiffs admit the fact of an arrangement of the kind alleged by the defendants, and that possession followed upon it. They, however, assert that this arrangement was necessarily of a temporary character, being liable to come to an end at any moment when the entire estate, as a joint undivided property, became subject to the incident of butwara.
8. It seems to me, that the onus of proof of the arrangement between the plaintiffs and the patnidars being of a temporary character, and liable to be broken through on the occasion of the butwara, lies entirely upon the plaintiffs. Had the property continued joint,--that is to say, had there been no private arrangement between the four-annas plaintiff-proprietors and the twelve-annas patnidar-defendants, then, doubtless, on the occasion of a butwara at the instance of the plaintiffs and the patnidars' lessor, the patnidars would be bound to follow the share assigned to the latter. But when, admittedly, an independent arrangement was made between the four-annas plaintiff-proprietors and the patnidars of the twelve-annas share, by which, as between them, the whole estate was partitioned, and this arrangement was acted on by possession following according to the partition, then I hold that the plaintiffs cannot set aside this arrangement by simply relying on a butwara to which the patnidars were not consenting parties. They must show that the arrangement was of a limited and conditional character. It was quite within the power of the plaintiffs and of the patnidars to divide the estate between them, and once this division was made and acted on, no conduct of the plaintiffs with a third party can disturb it or affect its validity.
9. I agree, therefore, in the judgment of the lower Appellate Court, and would dismiss the appeal with costs.
Richard Garth, C.J.
10. The Judges of the Division Bench having differed in opinion upon a point of law, the matter has been referred to me as a third Judge; and as the parties desired it, the case has been re-argued before us.
11. The facts are these: The plaintiffs are the owners of a four-annas share of an estate called Turuf Peadaha, and the defendants No. 2 are the owners of the other twelve-annas share.
12. The defendants No. 1 are the patnidars of the twelve-annas share under a patni, which was confirmed in the year 1241 B.S., but which appears to have been originally granted some thirty years earlier.
13. The estate at that time being undivided, the patni lease only conveyed to the patnidars the undivided twelve-annas share; but it is an admitted fact in the case, that, after the patni was granted, an amicable partition of the estate was made as between the owners of the four-annas share on the one hand, and the patnidars on the other, by which certain lands were appropriated to the patnidars as representing their twelve-annas share, and the remaining lands were appropriated to the four-annas share-holders as representing their share.
14. It is also admitted, that, in accordance with this private partition, the lands thus appropriated to the patnidars have been in their possession for upwards of forty years past.
15. After the patni was granted, the owners of the four annas share took the usual steps to have a butwara of the whole estate made by the Collector. Whether these steps had or had not been taken at the time when the private partition was made, does not appear; but the proceedings before the Collector were, undoubtedly, delayed for a good many years, and the butwara was not finally completed until the year 1874.
16. The division of the lands effected by the butwara was in many respects different from that effected by the private arrangement with the patnidars; and the consequence was, that some of the lands which were allotted to the plaintiffs (as the four annas shareholders under the butwara) were those which, by the previous arrangement, had been appropriated to, and were in the possession of, the patnidars.
17. The Collector, in the usual way, gave possession of these lands to the plaintiffs as against the defendant No. 2, but the defendants No. 1 insisted that they were no parties to, and were not bound in any way by, the butwara 'proceedings; and as they refused to relinquish possession of these lands to the plaintiffs, this suit was brought.
18. Upon these facts the lower Court has found:
1stly--That it is proved, that the private partition (that is, the arrangement between the owners of the four annas shares and the patnidars) was meant to be temporary.
2ndly--That it is not proved, that the butwara proceedings were pending when that partition took place.
3rdly--That even if they were pending, the partition might have been independent, and not intended to be subject to the butwara.
19. Upon these findings, the lower Court has decided that the plaintiffs were bound to prove that the private partition had come to an end, and that as they had not done so, the suit should be dismissed.
20. The point of law which has been raised here, and upon which the learned Judges of the Division Bench have differed in opinion, is this--whether, under the circumstances, the onus was upon the plaintiffs to prove that the private partition had come to an end; or whether the onus lay upon the defendants No. 1 to prove that the private partition was still in force.
21. In order to ascertain on whom the onus lies, I think it is necessary first to see what was proved or admitted on either side.
22. Now, it is an acknowledged fact on both sides, that the private partition was not only made, but that it has been acted upon by both parties for upwards of forty years. There is no reason, so far as I can see, why the continuance of such an arrangement is not perfectly consistent with the butwara made by the Collector. That butwara was made for revenue purposes, as between the plaintiffs and the defendants No. 2, and the defendants No. 1, the patnidars, were no parties to it.
23. Moreover, it does not appear that, at the time when the private arrangement was made, any steps had been taken to have the Collector's butwara effected, so that no presumption can arise that the arrangement was only to be in force until the Collector's butwara was completed.
24. Then, the fact of this private arrangement having admittedly existed, and been acted upon for forty years, raises a presumption, as it seems to me, that it was of a permanent character; or at any rate throws upon the plaintiffs, who seek to disturb the existing state of things, the onus of showing that it has been legally determined.
25. This is a principle upon which the Courts and the Legislature have generally thought it right to act, as in cases of presumption and in presuming, that a tenancy or a partnership or other state of things continues until the contrary is proved (see the Indian Evidence Act, Section 109, and Taylor on Evidence, 1st edn., Section 123).
26. I think, therefore, that the lower Appellate Court was right, and this appeal will, consequently, be dismissed with the costs of both hearings in this Court.
27. The same order will be made in the other cases, Nos. 433, 434, and 595 of 1879.
1[Section 576: When the appeal is heard by more Judges than one, any Judge dissenting from the judgment of the Court shall state in writing the decision or order which he thinks should be passed on the appeal, and he may state his reasons for the same.]
1. Dissent to be recorded.