1. The plaintiff who had been unsuccessful in an action in ejectment in both the Courts below has preferred this second appeal. The plaintiff's case was that he was a ryot and the defendants are under-ryots, and he sued; to eject the defendants on service of notices to quit in compliance with the provision of Section 49, Clause (b), Bengal Tenancy Act.
2. Two questions have been raised on behalf of the appellant, of which the first relates to the onus of proof. The Subordinate Judge has held that it was for the plaintiff to prove that the defendants were under-ryots and that the plaintiff has failed to discharge this burden. It is said that it was for the defendants to prove that their status was higher than what the plaintiff alleged.
3. In support of the contention aforesaid reliance has been placed upon the principles underlying the decisions of the Judicial Committee in the cases of Sethuratnam Iyar v. Venkatachala Goundan A.I.R. 1920 P.C. 67 and Nainapillai Marakayar v. Ramanathan Chettiar A.I.R. 1924 P.C. 65 and the line of cases in which it has been held that where a defendant alleges that he has a permanent right to remain on the plaintiff's land it is for him to prove it, the case of Nubo Coomar Ghose v. Oozir Shikdar 23 W.R. 238 and also the decision of this Court in the case of Paran Chandra Karmokar v. Khazez Mandal  42 I.C. 262 which is directly in point and in appellant's favour.
4. The respondents, on the other hand, have relied upon the decision of this Court in the case of Abbey Charan Dutta v. Futtari Dasi  57 I.C. 833 which is in their favour, and have urged that the decisions on which the appellant has relied are distinguishable.
5. In my opinion the question may be looked at from several points of view and the result that follows is exactly the same.
6. Apart from authorities and from any other considerations the elementary rule contained in Section 101, Evidence Act, is a rule that is inflexible and must apply to all cases. The plaintiff came to Court with the case that he is a ryot and the defendants are under-ryots and he asked for ejectment of the latter on the ground of his legal right as accruing on the footing of the respective status aforesaid and on the service of the notices. He asserted those facts and desired the Court to give judgment in his favour on the basis of those facts. He must, therefore, prove them.
7. Then again in an action in ejectment one of the things that the plaintiff must prove is his title to immediate possession. This is a proposition as old as the hills. In a case where the. defendant's tenancy is admitted-an admission that involves the admission of the defendant's right to be in possession-the plaintiff must necessarily establish as to how he is entitled to possession; in other words how the tenancy has come to an end. He has in this particular case asserted a particular set of facts to exist which entitles him to immediate possession. Must he not prove these facts?
8. Section 102, Evidence Act, makes it clear that the initial onus is always on the plaintiff. If he discharges that onus and makes out a case which entitles him to relief the onus shifts on to the defendant to prove these circumstances, if any, which would disentitle the plaintiff to the same. It may be said that it is not always easy to determine at what particular point it shifts from the plaintiff to the defendant and then again from the defendant to the plaintiff, and then once again from the latter to the former and so on the more so in contested proceedings as evidence gradually continues to be adduced, but at the conclusion of the trial when the issues come to be judged, it has to be seen whether the initial onus which Section 101 casts upon the plaintiff has been discharged or not.
9. Taking Section 109, Evidence Act, next, the tenancy being admitted, the burden of proving that the parties no longer stand in the relationship of landlord and tenant - a position which must be found before a decree in ejectment can be passed - is on the plaintiff. He undertook to prove it in this case in a particular way, namely, by proving the respective status as alleged by him and also by proving the service of the notice. If he ails to prove the same, Section 101, Evidence Act, will stand in the way of his obtaining any relief from the Court.
10. In my opinion, the decisions of the Judicial Committee do not indicate that their Lordships ever intended to depart from these elementary rules. In both the cases the plaintiffs' title to the lands was conceded, and notices by which the defendants' tenancies were terminated were not disputed. In neither case had any grant been alleged, asserted or admitted on behalf of the plaintiffs, but inasmuch as the defendants had been in occupation on payment of rent, a tenancy from year to year terminable on notice was all that was conceded. In both the cases the actions were resisted on behalf of the defendants on the ground of a permanent tenancy or occupancy right. As their Lordships have pointed out in the later of these cases:
A permanent right of occupancy in land in India is a right, subject to certain conditions, of a tenant to hold the land permanently which he occupies. It is a heritable right, and in some places it possibly may be transferable by the tenant to a stranger. That permanent right of occupancy can only be gathered by a tenancy by custom or by a grant from an owner of the land who happens to have power to grant such a right or under an Act of the Legislature.
11. All the facts which the plaintiffs in those cases asserted as entitling them to a decree in ejectment had been established by them; indeed most, if not all, of them were admitted on behalf of the defence and the initial onus that lay on the plaintiffs had thus been discharged. Prom these facts they asked the Court to infer that the defendants had nothing more than the right of a yearly tenant and as the said tenancy had terminated by notice to quit they were entitled to the decree they asked for. It was then for the defendants to prove those facts on which they relied as establishing a permanent or occupancy right in their favour as a shield against eviction. In the present case an under ryoti interest in defendants favour is admitted on behalf of the plaintiff. In other words, the plaintiff asserted that what was parted within the defendants' favour was the interest which created an under-ryoti in favour of the latter, and what was left in him as a ryot would entitle him to a decree for possession.. These facts he must prove. In my opinion the onus has been rightly placed on him.
12. In this view it is unnecessary to deal with the appellant's second contention which relates to the view that the Subordinate Judge has taken of the applicability of Section 182, Bengal Tenancy Act, to the present case.
13. The appeal fails and is dismissed with costs. The cross-objections have not been pressed and are also dismissed, but without costs.