- (1.) In this case I see no reason why the usual course should be departed from, which requires the plaintiff to prove his case. The lower appellate Court has found that the plaintiffs have failed to do so, and it is contended before us in special appeal that as the defendants held the tenure (part of which is now in dispute) up to the year 1866, he being best acquainted with the circumstances of the case, should have the onus thrown upon him of proving what was the extent of that tenure. In support of this ground a judgment of a Division Bench of this Court, in the case of Ram Cumar Roy v. Beejoy Gobind Bural 7 W.R. 535 has been quoted. But we think it is not applicable to the facts of the case. In that case the dispute was between the zamindar and tenant; the tenant-defendant held lands of considerable extent under the zamindar, but objected that one of the two plots occupied by him had been held under a different title. The Court held that under such circumstances it was for the defendant to prove a matter which was peculiarly within his knowledge. In the present case the defendant, as regards the plaintiff, is not a tenant; he has been charged as a trespasser and wrong-doer, and therefore the case quoted does not apply. A second case, Nobokishen Mookerjee v. Promothonath Ghose 5 W.R. 148, has been quoted. That also we think has no bearing on the present case. That was a suit brought by a party claiming to be a lakhiraj holder, and it was held that "the peculiar circumstances of the case seem to take it out of the general rule, and to require that, when the plaintiff has from his former circumstances special facility for showing the exact position of the village during his tenure of it, it is for him to show first the proof for his contention, and on his having done this, it then remains for the defendant to substantiate the plea raised by him." This case also is one which cannot be applied to the case before us, there being no peculiar circumstances in this case.
(2.) A second objection taken to the judgment of the lower appellate Court is, that the plaintiffs' right being admitted by the superior landlord, and the defendants having failed to prove their allegation, the lower appellate Court should not have interfered with the finding of the first Court; and a case Memrakhan Roy v. Ram Dhyan Misser 8 W.R. 324, was quoted to show that where the landlord had acknowledged the title of the claimant, the Court held that the onus was thrown upon the defendant to prove his title to the land. That case however is entirely different from the present one. For there both parties claimed the same lands from the same zamindar, and the zamindar having acknowledged the plaintiffs' case and denied the case propounded by the defendant, the Court under those circumstances very properly decided that it was for the defendant to prove his case.
(3.) We think therefore that there are no grounds for interfering with the judgment of the lower appellate Court, and accordingly dismiss this appeal without costs, the opposite party not appearing in the case. Markby, J.;