S.S.S. Varisai Muhammad Rowther vs Marungapuri Estate in charge of the Court of Wards and Another

Mockett, J.—The plaintiff who holds under a lease from the Zamindar of Marungapuri sued for possession of a certain land which the

defendants had taken from him. He alleged that the land was zamin private land and not pannai land. The defendants pleaded that the plaintiff had

taken a lease of the said land as pannai land. At the settlement of issues the District Munsiff dealing with the burden of proof said:

The plaintiff having taken the lease of the suit lands as pannai lands, I think the burden of proving that they are ryoti lands is on him. The issue will

therefore be amended as follows: ''Whether the lands are ryoti lands''?.

A Civil Revision Petition has been filed against that order. Two questions arise (1) Whether that order is wrong and (2) if wrong, whether I

should interfere u/s 115. u/s 185 of the Madras Estates Land Act, when in any suit or proceeding it becomes necessary to determine whether any

land is the landholder''s private land, regard shall be had to local custom and to the question whether the land was before the 1st day of July, 1898,

specifically let as private land and to any other evidence that may be produced, but the land shall be presumed not to be private land until the

contrary is shown. It has been argued that, as the Zamindar is not the plaintiff, in the circumstances of this case the burden is upon the plaintiff to

prove that the land is private land. I do not think that the Act ever intended that there should be a nice distinction in this matter. Section 185 is quite

clear that when in any suit it becomes necessary to determine whether any land is the landholder''s private land the land shall be presumed not to be

private until the contrary is shown. I think if a tenant shows that his rights have been interfered with on the ground that it is not private land the

burden is on the Zamindar to show that it is not a private land. That seems to be the whole idea underlying Section 185. Otherwise it will be only

too easy to get a tenant to take a lease describing the land as pannai land and say that he is thereafter bound to prove what he probably cannot

prove at all. Were these matters in the High Court where elaborate provisions with regard to discovery are available the position might be easier.

In the lower Courts the ryot is probably being asked to shoulder a burden which it is quite impossible for him to bear. I consider that the decision

of the Bench in Veerabhadrayya v. Sree Rajah Bommadevara Naganna Nayudu (1926) 52 M.L.J. 38 : ILR 50 Mad. 201 ( Krishnan and

Venkatasubba Rao, JJ.) supports the view that I take. The learned Judges there held that a landholder cannot rely upon leases subsequent to 1st

July, 1898, to make out that a plot of land is private land although they can be used for ancillary purposes. In this case the lease is long after 1898,

but the burden of proof has been put on the ryot. I take the view that when the statute specifically puts the burden of proof upon a certain party,

the Court in putting the burden of proof the other way is acting with material irregularity in the exercise of its jurisdiction. I indicated in Sri Tripura

Sundari Cotton Press Co., Ltd. and Another Vs. Addepalli Venkata Gurunadha Ramaseshayya, , that interference in revision in matters relating to

issues is very sparingly made. I perhaps did not make it sufficiently plain in that case that I interfered there because I considered that that was a

clear case of exercise of jurisdiction with material irregularity. It seems to me that there may be such cases. Supposing for instance in an action for

libel, where the defendant justifies and the burden of proof is put on the plaintiff or in an action for negligence where the issue is, ""were the injuries

to the plaintiff not caused by the negligence of the defendant"" and sometimes in an action on a promissory note the issue is ""was there no

consideration for the promissory note"" it seems to me that to allow the case to proceed on these lines is wholly to disregard vital recognized

procedure. It might even result in the defendants or the plaintiffs in the particular case being unable to proceed at all, because they were being

denied the right which the law gave them as regards the burden of proof. I can imagine nothing more remarkable than in an ordinary case of motor

accident for the defendant to be compelled to begin and to go first into the witness-box. It could follow that the plaintiff could submit that he had no

case to answer. I make these observations because it is only in such cases where I consider that the whole trial is vitiated from the very beginning

that, speaking for myself, I should interfere so that there should not be a complete waste of time by a trial taking place under circumstances directly

contrary to law. In a vast number of cases the burden of proof is of very little importance once the evidence is before the Court. In some cases it is

of the utmost importance and I consider this is one of them. It is quite possible if this suit had gone on in this form the plaintiff would have been

unable to make any progress at all. I accordingly think this is a case for interference. I do not consider that this decision is in any way in conflict

with the view laid down by a Full Bench of this Court in Kristamma Naidu v. Chapa Naidu ILR (1894) 17 Mad. 410 (F.B.), because I consider

that to disregard the direction of the statute with regard to burden of proof, not in the least being a discretionary matter, is a perverse decision and

conscious departure from the rule of procedure. It is supported by a decision of a Bench in Rajagopala Aiyangar v. Ramanuja Aiyangar AIR 1923

Mad. 607. I allow this petition.

The result is that the second issue will read ""whether the lands are not ryoti lands"". The petitioner is entitled to his costs of this petition.