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Ensar Ali and ors. Vs. Yakub Ali - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in13Ind.Cas.311
AppellantEnsar Ali and ors.
RespondentYakub Ali
Cases ReferredMohunt Padmnlav Ramanuja Das v. Lukshmi Rani
Excerpt:
bengal tenancy act (viii of 1885), section 108 - suit between rival proprietors--question of possession--suit between two rival tenants--question of title, if may arise--court not to go behind statement in judgment. - .....and tenant, question other than that of possession may legitimately arise. the ruling relied upon is, therefore, within point; and i see no reason for extending it to cases such as this.5. as regards the third argument, i find it stated in both the judgments of the courts below that the plaintiff was admittedly the heir of moharuddi and so entitled to a share of 4 annas. i, for my part, am not prepared to go behind any such statement in the judgment of a court, and, in this connection, i venture to express my entire concurrence with the remarks made by mukerjee and caspsrsa, jj., in the case of mirza shamsher bahadur v, kunj behari lall 7 c.l.j. 414 : 12 c.w.n. 273 : 3 m.l.t. 312.6. there is really no substance in this appeal and it must be dismissed with costs.
Judgment:

Carnduff, J.

1. This appeal arises out of a suit brought by the plaintiff-respondent under Section 106 of the Bengal Tenancy Act, 1885, for the correction of an entry in a record of right relating to a miras karsa holding. The holding was entered in the record as belonging to one Moharuddi and the defendants, half and half. Moharuddi has died and Yakub claims to be, as his second cousin, entitled to 4-annas of the holding. He accordingly brought this suit in order to have his name entered in respect of 4 annas. Both the Courts below have concurred in altering the record accordingly.

2. The defendants now appeal, and on their behalf, three-contentions have been pressed before me, first, it is said that the onus has been wrongly placed on the defendants, whereas it ought to have been placed on the plaintiffs, secondly, it is contended that the lower Courts have not found what the precise share of Yakub under the Mahatnmadan law is, and, therefore, they had no right to alter the record by entering his name in respect of any particular share, lastly, it is urged that, in cases under the Bengal Tenancy Act, the sole question to be decided is the question of possession and no question of title ought to be considered at all.

3. The first point I am unable to understand. I can find nothing in either of the judgments of the lower Courts regarding the onus of proof excepting the remark made by the lower Appellate Court that the onus of proving that Moharuddi was not entitled to a share in the property lies on the appellants and that the appellants have utterly failed to discharge that onus. There can be no question as to the soundness of this remark, for Moharuddi is entered in the record as the owner of half the miras karsa and the burden of proof is, of course, on the person alleging that that record is incorrect.

4. As regards the second point, the learned Vakil for the appellants relies on the case of Mohunt Padmnlav Ramanuja Das v. Lukshmi Rani 12 C.W.N. 8 at p. 15. In that case, no doubt, it wa3 held that the question of possession alone ought to be considered in a proceeding under Section 106 of the Bengal Tenancy Act between two rival proprietors; but I am here concerned with a proceeding between rival tenants and, as one of the learned Judges (Mr. Justice Coxe) observed at page 15 of the report, in suits between tenant and tenant or between landlord and tenant, question other than that of possession may legitimately arise. The ruling relied upon is, therefore, within point; and I see no reason for extending it to cases such as this.

5. As regards the third argument, I find it stated in both the judgments of the Courts below that the plaintiff was admittedly the heir of Moharuddi and so entitled to a share of 4 annas. I, for my part, am not prepared to go behind any such statement in the judgment of a Court, and, in this connection, I venture to express my entire concurrence with the remarks made by Mukerjee and Caspsrsa, JJ., in the case of Mirza Shamsher Bahadur v, Kunj Behari Lall 7 C.L.J. 414 : 12 C.W.N. 273 : 3 M.L.T. 312.

6. There is really no substance in this appeal and it must be dismissed with costs.


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