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Basanta Kumar Sarkar and anr. Vs. Panch Cowri Mandal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1933Cal459,150Ind.Cas.244
AppellantBasanta Kumar Sarkar and anr.
RespondentPanch Cowri Mandal and ors.
Cases Referred and Nainapillai Marakayar v. Ramanathan Chettiar
Excerpt:
- .....the plaintiffs are tenure-holders,3. the difficulty however of holding that the decision of the learned additional district judge is based upon this finding of his is that he had dealt with the whole question that arose before him as if it was a question in regard to which the onus of proof was entirely upon the plaintiffs. he has expressly said so in several places in his judgment. he has observed in the first place that it is on the plaintiffs to show that the tenancy is ejectable and to make out the validity of the notice, and it is for them to establish the under-raiyati 'character of the tenancy of the defendants. in another place in his judgment also he has remarked that, in any case, as the plaintiffs have failed to show that the tenancy is ejectable and that there is a valid.....
Judgment:

Mukerji, J.

1. These three appeals have arisen out of as many suits as were instituted by the plaintiffs for ejectment of the defendants after service of notice to quit under Section 49, Ben. Ten. Act, on the footing that the defendants were under-raiyats. The trial Court dismissed the suit in so far as it related to khas possession. The plaintiffs thereupon preferred appeals which were heard by the Additional District Judge who dismissed the said appeals and affirmed the decisions of the trial Court.

2. The plaintiffs have then preferred these second appeals. The relevant finding of the trial Court on the question of khas possession was that the defendants have raiyati right to the lands of the respective holdings and that therefore they could not be treated as under-raiyats and proceeded against in ejectment after service of notice under Section 49, Ben. Ten. Act. The Additional District Judge has recorded a finding in his judgment which goes to indicate that he was inclined to take the same view; for he observes thus:

Circumstances certainly would go to favour the defendants' version that the lands in suit are held by them in raiyati right and that the plaintiffs are tenure-holders,

3. The difficulty however of holding that the decision of the learned Additional District Judge is based upon this finding of his is that he had dealt with the whole question that arose before him as if it was a question in regard to which the onus of proof was entirely upon the plaintiffs. He has expressly said so in several places in his judgment. He has observed in the first place that it is on the plaintiffs to show that the tenancy is ejectable and to make out the validity of the notice, and it is for them to establish the under-raiyati 'character of the tenancy of the defendants. In another place in his judgment also he has remarked that, in any case, as the plaintiffs have failed to show that the tenancy is ejectable and that there is a valid notice to quit they are not entitled to ejectment of the defendants. It may be stated here that as regards service of the notices the finding of the learned Additional District Judge is in favour of the plaintiffs. It is now well settled that in a case where the plaintiff's title is established or admitted the onus is on the defendants who claim to remain on the land to prove the existence of a right of occupancy or a permanent right. This proposition has been affirmed by the Judicial Committee of the Privy Council in the cases of Seturatnam Ayer v. Venkataohela Goundan AIR 1920 PC 67 and Nainapillai Marakayar v. Ramanathan Chettiar AIR 1924 PC 65. The onus therefore must have been upon the defendants to prove that they have a right to remain on the plaintiffs' land. If I could hold that notwithstanding this erroneous view on the question of onus the decision of the learned Judge could be taken to have rested entirely upon his finding as regards the status of the defendants, I would have been prepared to affirm the decision. But I regret I am unable to do so.

4. In these circumstances, I think, the proper course for me to adopt, would be to allow those appeals and to set aside the decision complained of and to send the cases back to the Court of the learned Additional District Judge in order that the appeals before him may be re-heard, bearing in mind the view on the question of onus that has been expressed above. Costs of these appeals will abide the result of such hearing before the learned Judge.


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