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Chowdhury Mahadeo Pershad Vs. Mathura Tanti - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in5Ind.Cas.723
AppellantChowdhury Mahadeo Pershad
RespondentMathura Tanti
Excerpt:
possession, zemindar suing for - defendant claiming title--onus of proof--holding of tenant--gradual accession--regulation xi of 1825, section 4. - .....from the judgment of the court of first instance that the land in question was situated on the western boundary of the defendant's holding. the dhar of the river kamla on the western boundary is what the plaintiff now claims. it has now silted up. it appears to me that whatever may be said as to the onus of proof, when the plaintiff admitted that the land was part of the silting up of the bed of the river kamla and when it was proved that kamla formed the western boundary of the defendant's holding and this land lay along the defendant's boundary, it would, under regulation xi of 1825, be presumably part of the defendant's holding. section 4 says 'land gained by gradual accession whether from the recess of a river or of the sea, it shall be considered an increment to the tenure of.....
Judgment:

1. This is an appeal from a decision of the District Judge reversing a decision of the Munsif who decided in favour of the plaintiff. The suit was one for possession of land which the plaintiff alleged to be his zerait land and the substantial point that is taken in appeal is this: That the learned Judge placed the onus of proving that the land was zerait on the plaintiff, whereas, it is contended by the learned Vakil, that he ought to have placed it on the defendant. His argument being that when it is once admitted that the plaintiff was the zemindar then prima facie all the land belonged to him and he was entitled to possession of it till the contrary could be proved by those who claimed some title to the land. In this case it appears from the judgment of the Court of first instance that the land in question was situated on the western boundary of the defendant's holding. The dhar of the river Kamla on the western boundary is what the plaintiff now claims. It has now silted up. It appears to me that whatever may be said as to the onus of proof, when the plaintiff admitted that the land was part of the silting up of the bed of the river Kamla and when it was proved that Kamla formed the western boundary of the defendant's holding and this land lay along the defendant's boundary, it would, under Regulation XI of 1825, be presumably part of the defendant's holding. Section 4 says 'land gained by gradual accession whether from the recess of a river or of the sea, it shall be considered an increment to the tenure of the person to whose land or estate it is thus annexed.'

2. It appears to me that the question of onus does not arise very clearly in this case because on the plaintiff's own showing the state of things was such as the land would be presumed to fall under that section and to be an accretion to the jote of the defendant. It is alleged that the land is part of the bed of the river and that is the land in dispute. I think the defendant is clearly entitled to the land which formed part of his jote.

3. I, therefore, think that the District Judge is right and we dismiss the appeal with costs.


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