Lancelot Sanderson, C.J.
1. I do not think we can interfere in this case.
2. It appears that the suit was brought for recovery of possession and for declaration that the decree in a certain rent suit was fraudulent.
3. The Court of first instance found that this decree was obtained fraudulently.
4. The learned District Judge in the first Appellate Court gave judgment in which he impliedly decided that the decree in the rent suit was obtained by fraud.
5. On appeal to this Court Mr. Justice Beachcroft acted upon that supposition.
6. When the matter came in appeal under the Letters Patent to the Bench consisting of the late Chief Justice and Mr. Justice N.R. Chatterjea, it was decided that the learned Judge of the first Appellate Court ought to have come to a distinct finding on this all-important question whether the decree in the rent suit had been obtained by fraud.
7. Therefore, the matter was sent down to the District Judge for a finding upon that point. As has been already pointed out by my learned brother Mr. Justice Mookerjee, the matter came before another District Judge, who investigated the matter and came to the conclusion that the plaintiff had failed to prove that the rent-decree was fraudulent or collusive. Now, an objection has been taken to that finding, and the learned Vakil has drawn our attention to the ground upon which he asks us to reverse that decision.
8. As I understand the learned Judge's finding, it is that the facts which have been proved before him are suspicious; that they are consistent with fraud; and on the other hand they are also consistent with there being no fraud: and, that being so, he has come to the conclusion that the plaintiff has failed to prove what he set out to prove.
9. In my opinion the principle which should be applied in such a case as this is laid down by Lord Halsbury in Wakelin v. London and South Western Railway Co. (1886) 12 A.C. 41 at p. 45 : 56 L.J.Q.B. 229 : 55 L.T. 709 : 35 W.R. 141 : 51 J.P. 404 where he says: 'That is the fact to be proved'--in the present case the fact to be proved by the plaintiff is that the rent-decree was fraudulent and collusive. 'If that fact is not proved the plaintiff fails, and if in the absence of direct proof the circumstanced which are established are equally consistent with the allegation of the plaintiff as with the denial of the defendants, the plaintiff fails for the very simple reason that the plaintiff is bound to establish the affirmative of the proposition; Ei qui affirmat non ei qui negat incumbit probatio.'
10. I think the finding of the learned District Judge is one with which we cannot interfere; and, as it is admitted that if that finding stands the appeal must be dismissed, the consequence is that, in my judgment, this appeal should be dismissed with costs.
11. I agree.