Mahadeo Saran vs Dharamnath Sahay

Kulwant Sahay, J.—This is an appeal by the plaintiff in an action in ejectment. The plaintiff is the landlord of Tillage Kanar. One Ram Prosad Lal had a homestead land in the village which he conveyed to the defendants Nos. 1 and 2 in the year 1909. The plaintiffs case is that the holding was not transferable and the defendants Nos. 1 and 2 by their purchase acquired no valid title and he brought the present action for khas possession of the land. The plaintiff further alleged that Ram Prosad Lal had abandoned this homestead land sometime in the year 1905 or 1906 and had left the village and gone away to Bone place in Bengal and that, therefore, in the year 1909, when the conveyance to the defendants Nos. 1 and 2 was executed, he had no right to Bell the land and, therefore, the defendants Nos. I and 2 acquired no interest by their purchase. The First Court found that Ram Prosad had abandoned the holding before the conveyance of 1909 and, therefore, defendants Nos. 1 and 2 acquired no interest by their purchase and he decreed the suit for khas possession. There was an appeal to the District Judge by the defendants which was heard by the Subordinate Judge of Saran and the appeal was allowed and the suit was dismissed.

There was a second appeal to thi3 Court which came up before Mr. Justice Sultan Ahmad and his Lordship set aside the judgment of the Court of Appeal below and remanded the case to be head by the District Judge or by some other officer to whom he may transfer it for fresh hearing. After remand the appeal has been heard by the Officiating Subordinate Judge and he has set aside the decree of the Munsif and dismissed the suit. The plaintiff now appeals.

The learned Subordinate Judge has found upon the evidence that the alleged abandonment by Ram Prosad in the year 1905 or 1906 or at any time prior to the conveyance of 1909 has not been proved. This is a finding based on evidence and is conclusive in second appeal. But the learned Counsel for the appellant argues that, assuming that the conveyance to the defendants Nos. 1 and 2 was genuine and that Ram Prasad had the right to sell in the year 1909, still it was for the defendants to prove that the holding was transferable and as they failed to prove it, they acquired no title by their purchase. This argument is based on the assumption that the holding was created passing the Transfer of Property Act was passed. The learned Subordinate Judge on this point has found that there is no evidence on the record that the tenancy of Ram Prosad was created before the passing of the Transfer of Property Act. The only evidence on the record was that the disputed land was, part of Basgit, which existed before, the passing of the Bengal Tenancy Act, and he hell that the plaintiff must prove that the particular tenancy was created before the passing of the Transfer of Property Act before the onus could be shifted on the defendant to prove the custom of transferability. The learned Counsel for the appellant argues that the Subordinate Judge was wrong in throwing the onus upon the plaintiff. His case is that the plaintiff, being the admitted landlord and the action having been brought in ejectment it was for the defendants to prove the custom of transferability. Ho relies on the case of Ambica Prasad Singh v. Baldeo Lal 20 C.W.N. 1113. What was held in that case; was that, when a landlord sues a person on the allegation that he is a trespasser and that person sets up a transfer from a tenant it is for the defendant to prove both the tenancy and the validity of the transfer and that in the absence of evidence to the contrary homestead land comprised in a tenancy created before the Transfer of Property Act, 1882, was passed, must be presumed to be non-transferable. It appears that in that case it was admitted that the holding was created before the Transfer of Property Act. There was no dispute as regards the time when the holding came into existence and it being admitted that the holding was created before the Transfer of Property Act, the onus certainly lay on the defendants to prove the custom of transferability before he could succeed. In the present case the defendants deny the fact that the present holding came into existence before the Transfer of Property Act and, therefore, it was for tue plaintiff to prove that the tenancy came into existence before the Transfer of Property Act.

Mr. Siveswar Dyal for the respondents relies on the case of Mohendra Lal Sinha v. Krishna Kumari Debi 46 Ind.Cas. 656 as an authority for the proposition that it is for the plaintiff to prove treat the tenancy was created before the Transfer of Property Act was passed before the onus could be thrown upon the defendant to prove the custom of transferability. Although the question of onus was not discussed in this case, their Lordships proceeded on the assumption that it was for the plaintiff to prove, in the first instance, that the tenancy was created before the Transfer of Property Act.

In my opinion, the learned Subordinate Judge was right in holding that it was for the plaintiff in the first instance to prove that the tenancy was created before the Transfer of Property Act. This not being proved the case must be governed by the provsions of Section 108(J) of the Transfer of Property Act and the holding was certainly transferable.

In this view of the case, the appeal must be dismissed with costs.