HALODHAR CHATTERJEE Vs. KUMAR RAMENDRA NARAIN ROY CHOWDHURY

JUDGEMENT

(1.) The plaintiffs-respondents in this appeal are the purchasers of estate No. 230 on the roll of the Collectorate at Dacca at a sale for arrears of Government revenue and, by virtue of that purchase, they claim to be entitled to recover khas possession of certain lands which are admittedly in the possession of the defendants-appellants. The plaintiffs instituted the present suit against the defendants, apparently under Section 37 of Act XI of 1859, claiming to be entitled to recover possession of the lands in the estate which they had purchased as it was at the time of the original settlement and free from all encumbrances which had subsequently been imposed upon it. The defendants claimed to be in possession of the lands in suit under a lakhiraj title and they alleged that the plaintiffs had no right to eject them from the lands or to recover khas possession. The lakhiraj title which the defendants set up dated from before the permanent Settlement. The defence, therefore, was that the suit brought to eject them under the terms of Section 37 of Act XI of 1859 could not succeed.

(2.) The Munsif supported the plea set up by the defendants. He held that it was proved that the lands were within the estate purchased by the plaintiffs but he found that the defendants were in possession of the lands and that they had proved the lakhiraj title which they had set up and that that lakhiraj title was in existence from before the permanent settlement. In these circumstances, he held that, as the defendants claimed the lands in suit under cover of that lakhiraj title, the onus rested on the plaintiffs to prove that the lands from which they claimed to eject the defendants were mil lands of the estate and not lakhiraj lands covered by the defendant s title. He found that the plaintiffs had failed to prove that the lands in suit were mal lands of the estate which they had purchased and, therefore, he held that the suit must fail.

(3.) On appeal, the lower Appellate Court has set aside the judgment and decree of the Court of first instance and has decreed the plaintiffs suit. The learned Judge of the lower Appellate Court, in disposing of the case, held that the plaintiffs had proved that the lands in suit were included within the estate purchased by them and that the defendants had proved that they held certain rent-free tenures in that estate and that these tenures existed from before the Permanent Settlement; but, finding that the defendants had failed to prove that the plaint lands formed any part of the said rent-free tenures or that the said lands were held as parts of the said tenures in the time of the original grantee or afterwards, he held that the defendants had failed to prove a prima facie case which the plaintiffs might be called upon to rebut.