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Durga Charan Biswas and ors. Vs. Kailash Chandra Das and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in54Ind.Cas.645
AppellantDurga Charan Biswas and ors.
RespondentKailash Chandra Das and ors.
Cases ReferredHalodhar Chatterjee v. Ramendr Narain Roy Choudhury
Excerpt:
pleadings and proof - case set tip in trial court, failure of--appeal, fresh case, whether can be advanced in--remand, order of, whether justified--possession, suit for, on proof of title--burden of proof. - .....kind of title. in the present case there appears to have been no error committed by the lower courts. they have held that the plaintiff has made out a prima facie case and they have, after considering the evidence on the defendant's side as to his lakheraj title, held that this does not prevail against the title set up by the plaintiff. there has been no error of law which would justify my interference in second appeal.6. the appeal, therefore, fails and is dismissed with costs.
Judgment:

Newbould, J.

1. This appeal arises out of a title suit. Two points have been urged on behalf of the appellants defendants. The 1st is that the issue of limitation has been wrongly decided and the second that in deciding the question of title the onus of proof has been wrongly thrown on the defendants.

2. The plaintiff, it is found, is the purchaser of the property in question at a sale in execution of a decree for arrears of rent, and any encumbrances that there were to his title have been annulled under Section 67 of the Bengal Tenancy Act. The lower Courts have held that limitation runs from the date of the plaintiff's purchase.

3. It is contended on behalf of the appellants that if the landlord was out of possession, it must be shown that the defendants came into possession after the creation of the holding, in other words, it is sought to make the principle in the case of Kalikananda Mukherjee v. Bipro Das Pal Chowdhuri 26 Ind. Cas. 436 : 19 C.W.N. 18 : 21 C.L.J. (sic) applicable to the presentcase. It appears, however, that no such contention was raised in either of the Courts below. The question as to the date of the creation of the holding was not gone into, and it does not appear to have ever been suggested before this appeal was filed that the dispossession was prior to the creation of the interest which was purchased by the plaintiff. After having failed on the points on which they fought the case in the lower Courts, the appellants are not entitle! to a remand to enable them to try and establish their claim on a new case.

4. As regards the question of onus it is said that as the defendants pleaded Lakheraj title, it was for the plaintiff to prove that the land was rent paying land. In support of this contention the case of Halodhar Chatterjee v. Ramendr Narain Roy Choudhury 14 Ind. Cas. 90 : 16 C.W.N. 980 was cited and also other rulings. None of these rulings support the broad contention lint has been urged that in every case where the defendant pleads Lakheraj title it is for the plaintiff to disprove that title. In every case where the plaintiff sues for recovery of possession of land on establishment of his title, the onus is primarily on the plaintiff to prove his title. But when the plaintiff has made a prima facie case for establishment of his title, if the defendant seeks to contradict the plaintiff's case by establishing title of his own, it is for the defendant to prove the title he sets up, whether it be Lakheraj or whether it be any other kind of title. In the present case there appears to have been no error committed by the lower Courts. They have held that the plaintiff has made out a prima facie case and they have, after considering the evidence on the defendant's side as to his Lakheraj title, held that this does not prevail against the title set up by the plaintiff. There has been no error of law which would justify my interference in second appeal.

6. The appeal, therefore, fails and is dismissed with costs.


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