1. This is an appeal on behalf of the first two defendants in a suit commenced by the plaintiff-respondent for recovery of possession of land included in an osat nimhowla. The plaintiff claims to be the purchaser of a nimhowla at a sale in execution of a decree for arrears of rent obtained by the howladar against the nimhowladar and asserts that he has, by service of notices upon the first two defendants under Section 167 of the Bengal Tenancy Act, annulled the incumbrances held by them. He consequently asks for ejectment of the defendants from the disputed lands. The Courts below have concurrently made a decree in favour of the plaintiff The decision of the Subordinate Judge has been assailed before us on three grounds, namely, first, that the plaintiff is purchaser of only a fourth share in the nimhowla tenure and is, consequently, not entitled to the benefit of the provisions of Section 159 of the Bengal Tenancy Act ; secondly, that the first two defendants are the holders of only one-half of the osat nimhowla and are consequently not liable to be ejected at the instance of the plaintiff; and, thirdly, that the onus was upon the plaintiff to show that the interest of the first two defendants is an incumbrance within the meaning of Section 161 and is not a protected interest within the meaning of section l60 of the Bengal Tenancy Act. In our opinion, there is no foundation for any of these contentions.
2. In so far as the first ground urgad on behalf of the appellant is concerned, it is clear that although the plaintiff may, in one sense, be said to have purchased only an one-fourth share of the ninhomla, yet he has purchased, upon the facts found, an entire tenure which entitles him to claim the benefit of the provisions of Section 159 of the Bengal Tenancy Act. That section provides that where a tenure or holding is sold in execution of a decree for arrears of rent due in respect thereof, the purchaser shall take subject to the interests defined in Chapter VIII as protected interests but with power to annul the interests defined in that Chapter as incumbrances. To entitle the plaintiff to avail himself of the provisions of this section, he has to establish that he is a purchaser of a tenure sold in execution of a decree for arrears of rent duo in respect thereof; in other words, that what he has purchased constitutes an entire holding. Now the Courts below have found that the nimhowla, mentioned in the plaint, is an one-fourth share of the entire nimhowla but that this one-fourth share has been separated from the remaining three-fourth share, that the land comprised in it and the rent payable for it have been completely separated, and that consequently this one-fourth share now constitutes by itself an entire tenancy. Tinder these circumstances, the principle obviously applies that a share in a tenure, which has been duly and effectively recognised by both the landlords and tenants as a separated share, constitutes a distinct tenure, and when such a tenure is sold in execution of a decree for arrears of rent due in respect thereof, the purchaser acquires the rights of a purchaser of an ontire tenancy within the meaning of Section 159 of the Bengal Tenancy Act. In support of this proposition, reference may be made to the decision of this Court in the case of Gopi Nath Biswas v. Radha Shyam Paddar 5 C.W.N. IXXX. The first ground, therefore, cannot be successfully maintained.
3. In so far as the second ground urged on behalf of the appellant is concerned, it clearly raises a question not urged before the learned Subordinate Judge, though it had been raised in the Court of first instance and decided against the first two defendants it was pointed out by the original Court that the lease, granted to the defendants on the 15th February 1896, shows that the lands in their occupation, which comprised one-half of the lands of the osat ninhowla were treated as constituting an entire under-tenure. In fact the lands included in the lease were assessed separately, and although they constituted one-half share of the original osat nimhowla acquired by the landlords, the new tenure was an entire tenancy by itself. This position was not controverted before the Subordinate Judge and, in our opinion, it cannot be successfully challenged. The second ground, therefore, fails.
4. In so far as the third ground is concerned, it has been argued that the burden is upon the plaintiff to prove not merely that the under-tenure was created by the holders of the nimhowla but also to establish that the tenancy is not a protected interest within the meaning of Section 160 of the Bengal Tenancy Act. In support of this position reliance has been placed upon the cases of Durga Prosanno Ghose v. Kali Das Dutt 9 C.L.R. 449; Gobind Nath Shaha Chowdhuri v. Reily 13 C. 1 and Narmada Sundari Debi v. Tarip Mollah 9 C.L.J. 490 : Ind. Cas. 596 : 13 C.W.N. 720. The first two of these cases turn upon the construction of Section 66 of the Bengal Tenancy Act, VIII of 1869, while the third case depends upon the interpretation of Section 167 of the Bengal Tenancy Act of 1885. In our opinion, the cases relied upon are clearly distinguishable and do not lend any support to the contention advanced by the learned Vakil for the appellant. In each of these cases, it was argued on behalf of the person, who was sought to be ejected by the purchaser at a sale in execution of a rout decree, that his interest had been created, not by the holders of the tenure sold but by the superior landlords before the intermediate tenancy was created. In the first of these eases, Durga Prosanne Ghose v. Kali Das Dut 9 C.L.R. 449, the defence was that the disputed, jungleburi tenure had been created, not by any holder of the ganti tenure sold in execution of the decree for arrears of rent, but by the superior landlords and was in fact, in. existence before the creation of the ganti tenure on the 21st February 1851. With reference to these allegations, the learned Judges held that the burden was upon the purchaser to prove that the interest of the defendant, which he sought to annul, was an incumbrance created by an act of the holders of the ganti tenure. The question which was raised in the other two cases was precisely of the same character, and it was ruled that the burden was upon the purchaser to prove that what he sought to annul was an incumbrance, that if, was a sub-tenure created by the tenant on his own tenure or holding or in limitation of his own interest therein. In the case before us, there is no controversy that the osat nimhowla was created by the holders of the nimhowla; the only suggestion put forward is that it might have been so created with the consent given expressly in writing by the holders of the howla and might in this view be a protected interest under Clause (g) of Section 160 of the Bengal Tenancy Act. Obviously, the burden is upon the party claiming this protected interest to establish the elements essential to validate his contention. The true rule plainly is that the burden is upon the purchaser to prove that the interest sought to be annulled is an incumbrance within the meaning of Clause (a) of Section 161, and if he proves this, he starts his case sufficiently : the burden then shifts upon the defendant to prove that he has a protected interest within the meaning of Section 160. If the contrary view were maintained, the result would be that the plaintiff purchaser would be obliged to prove a negative, namely, to show not only that the interest was an incumbrance but also that it was not a protected interest. Such a position cannot possibly be maintained. The third ground must, therefore, be overruled.
5. The result is that the decree made by the Subordinate Judge is affirmed and this appeal dismissed with coats.