Sheikh Muhammad Ibrahim vs Sheikh Abed

James, J.—This application arises out of a suit for rent in which, after it had been dismissed by the Munsif of Siwan, an appeal to the District Judge of Saran was rejected on the ground that it was barred by the provisions of Section 153(6) of the Bengal Tenancy; Act. I am asked to revise the order of the District Judge, on the ground that an appeal lay from the decree of the Munsif because he had decided a question relating to an interest in land between parties having conflicting claims thereto, and the question of the amount of rent annually payable by the tenant.

A defence taken by the defendant was were in possession of the land in respect of which rent was claimed. Whether the decision of this question was the decision of a question relating to an interest in lands between parties having conflicting claims thereto is-an arguable point; but it is not necessary to decide this point because the learned Munsif did decide the question of the amount of rent annually payable by the tenant, so that as appeal from his decision did lie to the District Judge.

I am further asked to revise the order of the learned Munsif on the ground that he committed an error of law when he said that in this suit, which was for arrears of produce rent, the onus of proving the rate of out-turn lay on the plaintiff In support of his argument Mr. P.P. Varma relies upon the decision in Zeyauddin v. Jagdeo Singh (Sic) in which in the course of pronouncing judgment in accordance with the consent of parties it was remarked that in a 6uit for produce rent the onus lies on the tenant to show what the produce was during the years in suit. In certain circumstances, as where rent is payable on the batai system and the tenant has surreptitiously removed the crop, if the provisions of Section 71(4) of the Bengal Tenancy Act cannot be applied and the question of the actual value of the crop reaped is in issue between the parties, little evidence may be required to shift the onus on to the defendant, since he knows what he reaped and the plaintiff-landlord does not. But even in such a case there must be some evidence before the burden is shifted, and that evidence must be prima facie true. In a suit for arrears of produce rent, as in any other rent suit, the plaintiff''s case must be proved and admitted before he can obtain a decree for dictum in Zeyuddin v. Jagdeo far too sweeping, Indeed, it was never meant to imply that in a contested suit for arrears of produce rent the plaintiff might ask for a decree for the full amount of his claim without adducing truthful evidence in support of it, although on the face of it the obiter dictum does bear that construction. The view of the learned Munsif that the onus lay on the plaintiff to prove the rate of out-turn is correct. I make these remarks because I was myself a party to the decision cited; but this application has to be allowed on other grounds: and it will be for the learned District Judge to determine whether the finding of fact of the learned Munsif is to be to the District Judge of Saran for disposal according to law. I make no order for costs.