1. The plaintiffs-respondents in this appeal are the purchasers of estate No. 230 on the roll of the Collectorate at Dacca at a sale for arrears of Government revenue and, by virtue of that purchase, they claim to be entitled to recover khas possession of certain lands which are admittedly in the possession of the defendants-appellants. The plaintiffs instituted the present suit against the defendants, apparently under Section 37 of Act XI of 1859, claiming to be entitled to recover possession of the lands in the estate which they had purchased as it was at the time of the original settlement and free from all encumbrances which had subsequently been imposed upon it. The defendants claimed to be in possession of the lands in suit under a lakhiraj title and they alleged that the plaintiffs had no right to eject them from the lands or to recover khas possession. The lakhiraj title which the defendants set up dated from before the permanent Settlement. The defence, therefore, was that the suit brought to eject them under the terms of Section 37 of Act XI of 1859 could not succeed.
2. The Munsif supported the plea set up by the defendants. He held that it was proved that the lands were within the estate purchased by the plaintiffs but he found that the defendants were in possession of the lands and that they had proved the lakhiraj title which they had set up and that that lakhiraj title was in existence from before the permanent settlement. In these circumstances, he held that, as the defendants claimed the lands in suit under cover of that lakhiraj title, the onus rested on the plaintiffs to prove that the lands from which they claimed to eject the defendants were mil lands of the estate and not lakhiraj lands covered by the defendant's title. He found that the plaintiffs had failed to prove that the lands in suit were mal lands of the estate which they had purchased and, therefore, he held that the suit must fail.
3. On appeal, the lower Appellate Court has set aside the judgment and decree of the Court of first instance and has decreed the plaintiffs' suit. The learned Judge of the lower Appellate Court, in disposing of the case, held that the plaintiffs had proved that the lands in suit were included within the estate purchased by them and that the defendants had proved that they held certain rent-free tenures in that estate and that these tenures existed from before the Permanent Settlement; but, finding that the defendants had failed to prove that the plaint lands formed any part of the said rent-free tenures or that the said lands were held as parts of the said tenures in the time of the original grantee or afterwards, he held that the defendants had failed to prove a prima facie case which the plaintiffs might be called upon to rebut.
4. The defendants have appealed and in support of their appeal, it is urged that the lower Appellate Court erred in law in holding that in the case the onus lay on the defendants to prove that the lands in suit were covered by their lakhiraj title. It is contended that, as the defendants were admittedly in possession of the lands in suit and as both the lower Courts have found that the defendants have established a lakhiraj title to lands within the ambit of the estate purchased by the plaintiffs, therefore, it becomes a question, as between the plaintiffs and the defendants, of parcel or no parcel and, the onus lay on the plaintiffs to prove that the lands from which they claimed to eject the defendants were mal lands of the estate. In support of this contention, reliance is placed on the decisions of this Court in the cases of Bacharam Mundul v. Peary Mohun Banerjee 9 C. 813 : 12 C.L.R. 475 and Narendra Narain Bai v. Bishun Chundra Das 12 C. 182. These two cases, no doubt, related to suits for the resumption of invalid lakhiraj lands, but it is contended that the same principle would apply in the present case and that this is clear from the decision of this Court in the case of Rajendro Kumar Bose v. Mohun Chandra Ghose 3 C.W.N. 763. In that case, the learned Judges of this Court relied on certain passages in the judgment of their Lordships of the Privy Council in the case of Harihar Mukhopadhya v. Madhab Chandra Babu 14 M.I.A. 152 : 20 W.R. 459 : 8 B.L.R. 566. The case before their Lordships of the Privy Council was one brought by a zemindar to compel the defendant to pay rent. In that suit, the defendant claimed the laud in respect of which rent was sued for, excepting a small portion, as his lakhiraj. Their Lordships held that an admission made with reference to some of the lands in question by the defendant that they were included within the estate of the plaintiff, was not in itself sufficient to relieve the plaintiff from the onus of proving his case, namely, that he was entitled to recover rent in respect of it from the defendant. Their Lordships remarked: 'it was, at most, an admission that the lands were within the ambit of the estate, not that they had ever been mal lands.' Their Lordships were of opinion that where as in that case, a suit for recovery of rent was brought and an adverse title was set up by the defendants and where the defendant had established that he had been adversely in possession of the land, the question between them resolved itself into one of parcel or no parcel and, therefore, the plaintiff could not be relieved from the ordinary rule of establishing his own case. This was the view taken by the learned Judges of this Court in the case of Rhidoy Kristo Mistri v. Nobin Chunder Sen 12 C.L.R. 457. The present case is clearly not one falling within the provisions of Section 37 of Act XI of 1859. The defendants do not claim to have any protected rights under that section in the lands which they hold in the estate but they claim under a separate and distinct title alleging that the lands are rent-free lands and that the plaintiffs have no right to recover khas possession. The case of Wise v. Bhoobun Moyee Debia Chaudhrani 10 M.I.A. 165 : 3 W.R. (P.C.) 5 and the case of Ambika Churn Chakravarti v. Dya Gazi 10 C.W.N. 497 on which the learned Pleader for the respondents relies, cannot, therefore, be taken to have any application to the facts of the present case. This is not a case in which, as apparently the lower Court has held, the defendants must be compelled to make out a prima facie case that the lands in suit are included within the lands held by them as lakhiraj. The defendants in the present suit are clearly in possession of the lands and, as the learned Munsif has pointed out, they have substantiated the defence which they set up that they hold the lands within the ambit of the estate purchased by the plaintiffs under a lakhiraj title. The onus ordinarily in such a case would lie on the plaintiffs to prove their case. The plaintiffs' case is that the lands in suit are included in the mal lands of the estate which they have purchased. The defendants, however, are in possession and they have proved that they have a lakhiraj title to lands in the estate and the Munsif has held that, in these circumstances, the plaintiffs are not relieved from the ordinary onus of proving their own case and that the question between the parties becomes one of parcel or no parcel and the onus lies on the plaintiffs to make out that the lands in suit are included within the mal lands of the estate. In our opinion, the view of the law which the learned Munsif has taken is supported by the rulings on which the learned Pleader for the appellants relies. We think that the learned Subordinate Judge erred in law in holding that the plaintiffs were entitled to succeed because the defendants failed to make out a prima facie case which the plaintiffs were called upon to rebut. In fact, in the present case, the possession was with the defendants. Both the lower Courts have found that the defendants have proved that they held the lands under a lakhiraj title within the estate and, in those circumstances, the question between the parties, in our opinion, must be held to be one of parcel or no parcel and the onus lies on the plaintiffs to prove that the lands in suit are included within the mal lands of the estate which they have purchased. We agree with the Munsif that, as the plaintiffs have failed to prove that fact, the suit must fail. We, therefore, decree the appeal, set aside the judgment and decree of the lower Appellate Court and restore that of the Court of first instance with costs in this Court and in the lower Appellate Court.