1. In this case the plaintiff Abdul Hakim brought a suit against the defendants Jitendra Nath Roy and others claiming a declaration of his title to the lauds which are the subject-matter of the suit and for the recovery of possession of those lands after cancellation of certain under-tenures held by the defendants. The plaintiff also claimed recovery of possession of the lands held by them. Put quite shortly the plaintiff's case was that he had purchased the patni under which the lands were held at an auction sale held under the provisions of the Bengal Patni Taluk Regulation (8 of 1819). The plaintiff alleged that the under-tenures held by the defendants were put an end to as a result of the sale of the lands to him. The matter was originally tried in the Court of the Subordinate Judge of Faridpur. In the course of his judgment the learned Subordinate Judge observed:
The defendants have failed to prove that these disputed jotes were created before the patni,
and ho found that the plaintiff had title in the patni taluk and had acquired the right which he claimed against the defendants and accordingly the Subordinate Judge made a decree in favour of the plaintiff on all the points raised by him. It is to be noticed that that Subordinate Judge Mr. Gopaldas Ghose seems to be of opinion that it lay upon the defendants to show that the lands with which they were concerned were created before the patni was created. The case was then taken on appeal to the Court of the District Judge of Faridpore and there the Additional District Judge Mr. N.E. Guha came to the conclusion that the Subordinate Judge was wrong in casting the onus upon the defendants. He then went on to say:
It was further pointed out that there was no evidence on the record that the patni was created in 1245 and the learned pleader for the respondent also was unable to place the particular evidence upon which the statement was based. In considering the evidence on the point I was of opinion that the materials on the record were insufficient to come to the conclusion that the tenures or jotes claimed by the defendants were incumbrances.
2. He then found that no specific issue on this point had been framed in the Court below and he remanded the case under Order 41, Rule 25, Civil P. C, for the determination of two issues, the second of which was put in this way:
Is the interest of the contesting defendant in the tenures an encumbrance within the meaning of the Patni Regulation and is the plaintiff entitled to avoid the tenures or jotes
3. On remand the case came before a different Subordinate Judge of Faridpur Mr. Natabehari Ghose. In the course of his judgment ho said:
It is not contended that the burden of proof is not on the plaintiff. The plaintiff has therefore to show either that the tenures were created after the creation of the patni or that they were not created with the permission of the zamindar,
and he came to this conclusion:
From the evidence it has not been proved by the plaintiff that the jotes did not exist before the creation of the patni, nor has it been shown by the plaintiff on whom the burden of proof lay, that the right of creating the tenures was not vested in the holder in the written engagement under which the taluk was held.
4. These findings were then sent back to the appellate Court and the matter was ultimately dealt with by the then District Judge, Mr. T. H. Ellis, and he seems to have taken a view that was contrary to that taken on the previous occasion because he said that there was no evidence upon which reliance could be placed to show that the disputed tenures were created before the patni and he observed from the judgment of the learned Subordinate Judge that it was not argued before him that there was any contract in the patni patta for their creation. A somewhat curious feature in this case is that the District Judge seems to have entirely ignored the fact that the matter had already gone before an appellate Court and had been remanded for the trial of further issues and he makes no reference either to the order of remand or to the findings, that were arrived at when the case was reconsidered by the Subordinate Judge. On the contrary the learned District Judge seems to have dealt with the matter as if it had come before him on appeal for the first time direct from the Subordinate Judge who first dealt with it; and in effect he seems to have upheld the view held by that Subordinate Judge that the onus of proof lay upon the defendants and not upon the plaintiff; and in this view he dismissed the appeal. The only matter which has been argued before us is the question whether the learned District Judge was right in placing the onus of proof in that way. It has been argued on behalf of the appellant that the onus of proof must, of necessity, lie upon the plaintiff and not upon the defendant. For the purpose of determining that point it is necessary to consider the precise language of Section 11, Patni Regulation (Act 8 of 18.19) which deals with the matter. Para 1 of that section provides as follows:
It is hereby declared that any taluk or saleable interest that may be disposed of at a public sale under the rules of the Regulation for arrears of rent due on account of it is sold free of all encumbrances that may have accrued upon it by act of the defaulting proprietor, his representative or assignee, unless the right of making such encumbrances shall have been expressly vested in the holder by a stipulation to that effect in the written engagement under which the said taluk may have been hold.
5. It is to be observed in the first place that the section runs that any taluk which is disposed of at a public sale is sold free of all encumbrances. Had the section stopped at that point it might have been reasonable to take a different view as to where the onus, of proof lies from that which we take having regard to the rest of the provision of the section. It is, I think, not open to question, at any rate for the purpose of this case, whether or not the words of the section must be taken to mean that upon the sale of the taluk all encumbrances of the description therein mentioned are automatically put an end to, or whether, on the other hand, the purchaser at the public sale is obliged to take appropriate proceedings for getting rid of all the encumbrances imposed on the patni. The matter, is a somewhat academic one because if in any event the holder of an encumbrance or the holder of an under-tenure which is counted as an encumbrance disputes the purchaser's right to take possession of the lands comprised in it, it is obvious that the purchaser would be bound to institute legal proceedings to obtain possession of the land; and in order to succeed it is obvious that he would have to show that his position was such that the matter fell within the terms of Section 11. The section however in fact provides that only encumbrances of a certain kind, namely those which may have been imposed upon it by the act of the defaulting proprietor, will or may be removed. It was long ago decided by this 'Court in the case of Gopendra Chandra Mitra v. Mokaddam Hossain  21 Cal. 702 that the expression 'defaulting proprietor' as used in Clause 1, Section 11, must be read as meaning 'proprietor of the tenure in default' and accordingly was not intended to be restricted to the particular proprietor for whose default the tenure is brought to gale. That was a decision which took effect by reason of the point having been referred to a third Judge after two learned Judges who originally heard the matter had disagreed. Personally I should have been disposed, on the language of the section itself, to take the view that the words 'defaulting proprietor' can mean no more than the actual proprietor whose default has occasioned the sale, but as there is that decision to which I have just referred, it is not open to us to take any other view of the matter, at any rate in this present case. I only refer to this point for the purpose of observing that the giving of that extended meaning to the expression obviously imposes a very heavy burden upon whichever of the parties to the suit is under the obligation of proving the class to which the encumbrance in question properly belongs.
6. It is obvious that it may be a matter of almost insurmountable difficulty for a stranger who purchases the patni to get the necessary evidence for proving how, in what circumstances and when, the patni originally came into existence and it would generally be easier for the holder of the tenure which is sought to be set aside to show how and when his interest in the land in fact came into existence. But we have to view this matter upon the basis of the actual wording of the section itself; and because, it is not all encumbrances which come to an end or may be cancelled but only those of a certain kind, it seams to us that the burden of proof must fall upon the person who asserts that he is entitled to get possession of the land by reason of the fact that the holding is such that it falls within the description given in the section. There is in fact a long line of authorities (which were decided with reference to the analogous sections in several regulations or statutes which are sufficiently close to the section with which we are now concerned) which indicate that the right view of the matter is that the onus of proof lies upon the plaintiff. I need only refer to one or two of those authorities. In the case of Narmada Sundari Deby v. Torip Molla  1 I.C. 596 it was held that the onrs is on the plaintiff who seeks to annul an encumbrance under Section 167, Ben. Ten. Act, to prove that the tenancy held by the defendant is in fact an encumbrance within the meaning of that Act. In that case the plaintiff sued to recover khas possession of certain lands as included in her ganti tenure which she purchased in execution of a decree for arrears of rent and for ejectment from the same of the defendants on the ground that their holding of the tenure was an encumbrance which she was entitled to annul. The Court said:
The law which gives the plaintiff-power to annul such a tenancy as an encumbrance seems to us to require that the person seeking to annul the tenancy on that ground shall make out a case that the tenancy is in fact an encumbrance within the meaning of the Act. In that case the defence of the defendants was that their tenancy had been created long before the ganti tenure was settled. In those circumstances it certainly rested on the plaintiff to prove that the tenancy which she sought to annul was one which had been created after the ganti tenure was brought into existence.
7. In Biprodas Pal Chowdhury v. Kamini Kumar Lahiry A.I.R. 1922 P.C. 48 the facts were that the appellant purchased a putni taluk at a sale held in execution of a decree for rent. Some of the occupiers claimed that they held their land lakheraj. He served notices upon them under Section 167, Ben. Ten. Act, treating the interests claimed by them as encumbrances which he had power to avoid under that Act, and brought the suit to recover possession. The occupiers and their predecessors had hold lakheraj for periods greatly exceeding 12 years; the evidence did not establish whether they had commenced so to hold after 1907 when the patni was created. It was held that the suit failed since the onus was upon the purchaser to prove that the holding lakheraj commenced after the creation of the patni. That was a decision of the Judicial Committee of the Privy Council and we are of opinion that the facts of that case were sufficiently analogous to those of the present case to indicate that in the present case also the onus should properly be cast;'upon the plaintiff. What the plaintiff has to prove in order to recover possession of the land which he is now claiming is that the under tenures held by the defendants are encumbrances that have accrued upon the taluk purchased by the plaintiff by act of the defaulting proprietor, his representative or assignee. As I have already pointed out, owing to the extended meaning which has been given to the expression 'defaulting proprietor,' that means that the plaintiff is under the necessity of showing that the defendant's tenure came into existence since the patni was first created, however long ago that may be.
8. The learned District Judge has however based his decision on the fact that there was no evidence upon which reliance could be placed that the disputed tenures were created before the patni. That finding implies that it lay upon the defendants to show that the tenures were ante patni, if I may so put it, and not that the onus lay upon the plaintiff to show that the tenures were post patni. We think therefore that this case must go back to the District Court for reconsideration in the light of our expression of opinion as to the onus of proof.
9. The appeal is therefore allowed, the decree of the lower appellate Court set aside and the case remitted to that Court with the above expression of our opinion. Costs will abide the result.
10. I agree.