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NabIn Chandra Nath Vs. Srimati Tirthabasi Bhowmik, Widow of Ishan Chandra Bhowmik and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in56Ind.Cas.180
AppellantNabIn Chandra Nath
RespondentSrimati Tirthabasi Bhowmik, Widow of Ishan Chandra Bhowmik and ors.
Cases Referred and Gopini Debi v. Lokenath Tewari
Excerpt:
landlord and tenant - suit for possession by land-lord defendant setting up tenancy land, whether comprised in tenancy--burden of proof. - .....case must be subject to certain limitations. two of the limitations mentioned are that where the case is not one of encroachment or where the land is not contiguous to the land forming the tenancy of the defendant, the burden of proof does not lie upon the landlord. the lower appellate court has noticed these points and it says that this is not a case of encroachment and that the defendant has not any land contiguous to the disputed land. in view of this finding it appears to me that the court below was right in saying that the onus was upon the defendant. if the onus was upon the defendant, the plaintiffs were bound to succeed. one other objection raised was that the learned subordinate judge should have remanded the case to the munsif for a decision upon all the points. it.....
Judgment:

Walmsley, J.

1. This appeal is preferred by the defendant. It arises out of a suit for declaration of title to and recovery of possession of some land. The lower Appellate Court has dealt with the case on the footing that the defendant has a tenancy under the plaintiffs, although the Munsif seems to have entertained some doubt as to whether there was such a tenancy at all. Assuming that there was a tenancy, both the Courts below have held that the burden of proof was upon the defendant to show that the land which is the subject-matter of this suit is comprised within the defendant's tenancy. This view forms the first object of attack by the appellant. It is contended on his-behalf that the Courts below should have followed the case of Rajendro Kumar Bose v. Mohimi Chandra Ghose 3 C.W.N. 763. That case has been considered frequently in later judgments. I shall refer to only two of them, namely, the cases of Protab Chandra Roy v. Judhister Das 23 Ind. Cas. 69 : 19 C.W.N. 143 : 19 C.L.J. 408 and Gopini Debi v. Lokenath Tewari 11 Ind. Cas. 696 : 19 C.W.N. 140, In those oases it is shown that the general' principle enunciated in the earlier case must be subject to certain limitations. Two of the limitations mentioned are that where the case is not one of encroachment or where the land is not contiguous to the land forming the tenancy of the defendant, the burden of proof does not lie upon the landlord. The lower Appellate Court has noticed these points and it says that this is not a case of encroachment and that the defendant has not any land contiguous to the disputed land. In view of this finding it appears to me that the Court below was right in saying that the onus was upon the defendant. If the onus was upon the defendant, the plaintiffs were bound to succeed. One other objection raised was that the learned Subordinate Judge should have remanded the case to the Munsif for a decision upon all the points. It appears to me that that was wholly unnecessary, Both the arguments advanced on behalf of the appellant fail and I dismiss the appeal with costs.


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