1. This appeal arises out of a suit brought by the plaintiffs to recover one plot of land on establishment of plaintiffs' title thereto and for a declaration that another plot is part of the plaintiffs' pathway used by them for the purpose of going to a tank.
2. It appears that out of 3 1/2 bighas of land belonging to the plaintiffs, they let out one bigha more or less to defendant No. 2. The land thus let out to defendant No. 2 was again sublet by him to the predecessor-in-interest of defendant No. 1. The pathway in question lies immediately west of the land demised and two tanks, of which one belongs to the plaintiffs, lie to the south. The plaintiffs' case then was that the defendants had encroached upon their pathway and also upon their tank. The findings of the Subordinate Judge are that there has been no encroachment upon the pathway and that the extent of the encroachment upon the tank, if any, has not been established. In coming to these findings the learned Subordinate Judge laid the onus of proof upon the plaintiffs, and the contention of the appellants before us is that in so doing he has misplaced the onus. In support of that contention reliance is placed on the case of Protap Chandra Roy v. Judhistir Das 23 Ind. Cas. 69 ; 19 C.L.J. 408 at p. 413; 19 C.W.N. 113. But we are of opinion that the present Case is to be distinguished from the case of Protap Chandra Boy v Judhister Das 23 Ind. Cas. 69 ; 19 C.L.J. 408 at p. 413; 19 C.W.N. 113. Here we have it admitted by the plaintiffs that the lands sought to be recovered are contiguous to the holding or land demised to the defendants and the further allegation that it has come into the possession of the defendants by encroachment. This case thus falls within the rule laid down in the case of Rhidoy Kristo Mistri v. Nobin Chunder Sen 12 C.L.R. 457. That being so, we cannot say that the onus has been misplaced.
3. The appeal is dismissed with costs.