P L D 1959 (W (PLP)

FAROOQI, J.‑--This is an appeal against the judgment and decree passed by Mr. Mushtaq Ali Kazi, First Assistant Judge, Hyderabad, dismissing the plaintiff‑appellant's suit for declaration, popularly described as a suit under section 164, Bombay Land Revenue Code, contesting the justice of demand of the Court of Wards for arrears of lease money which is sought to be recovered as arrears of land revenue through the machinery of the Revenue Courts. The appellant Fakir Sahibdino obtained the lease of 147 survey numbers situated in taluka Tando Allahyar belonging to Mahmood son of Jhangli whose state was under the superinten dence of the Court of Wards. He obtained this lease as a result of an auction in which he was the highest bidder. The lease was for 3 years commencing from 1952‑53 to 1954‑

55. The Court of Wards on or about the 22nd of June 1954 obtained a civil jail warrant from the revenue authorities on the ground that the plaintiff had failed to pay a sum of Rs. 14,500 being 3 part of the lease money for the last year, namely, 1954‑

55. According to the Court of Wards, the plaintiff had paid Rs. 50 towards the lease money of this year. In pursuance of the warrant mentioned above, the appellant was arrested and put into civil jail when he furnished a security in terms of 'section 164, Bombay Land Revenue Code, and filed the present suit for a declaration that the demand as contained in the warrant and the plaintiff's detention in pursuance thereof was illegal, unjust, arbitrary and without jurisdiction. The main ground of the plaintiff challenging the validity of these recovery proceedings and to which the arguments before us have been restricted by the appellant's counsel, was that the plaintiff‑lessee was never put in possession of the leased land, and as such the defendant was not entitled to make any demand for the recovery of any rent. The plaint was completely silent with regard to any payment of rent previous to the issue, of the warrant of arrest, but the defendant, the Court of Wards; in their written statement categorically pleaded the various sums of money paid by the plaintiff towards the lease money for the first two years giving precise dates of each payment. There was no replication to the written statement and, therefore, there was no express denial of these payments by the appellant in respect of the rent of the first two years. The most curious feature of this case was that neither party gave any evidence in the Court below, oral or documentary, and the Court was, therefore, left to decide the question upon the pleadings and such inferences which the learned Judge was able to draw from the conduct of the parties. In these circumstances, the question with regard to the onus of proof became of considerable importance and in fact this was recognised by the learned Judge in the following words: "In the absence of any evidence, the question regarding burden of proof of these issues becomes of paramount impor tance in deciding the issues." The learned trial Judge found in favour of the defendant on all the issues and dismissed the plaintiff's suit. Before us Mr. Jamaluddin, the learned counsel for the appellant, has limited himself to only one point and this was that the burden of proving that the defendant (who was the lessor) had put the plaintiff‑lessee into possession of the leased lands, and that unless this was done there could be no justice for the demand of the rent and, therefore, the distress proceedings against the appellant would be unjust, illegal and without jurisdiction. He argued that in this view of the matter, since the Court of Wards had not led any evidence, it had failed to discharge the burden which lay upon it and, therefore, the plaintiff's suit should have been decreed. He did not press any other ground of appeal and, therefore, those should be deemed to have been abandoned. We shall now proceed to examine this contention and the effect thereof. The relevant issues framed by the learned trial Judge were these: Issue No. 4‑A.‑‑Was the actual and exclusive possession of the leased land given to the plaintiff? Issue No. S.‑Was the Defendant, Court of Wards, bound to give exclusive and peaceful possession of the lease land to the plaintiff, and are the contents of paras 4, 5 and 6 of the plaint true?. If so, what is their effect? The learned Judge also framed an issue being issue No. 4 which reads Issue No. 4.‑Is the plaintiff estopped from filing the suit? He then tried these three issues together and gave a consolidated finding on these three issues. Before we go into the question of the burden of proof, it is necessary to advert to a rather important point which largely influenced the learned trial Judge in reaching his finding as he did. This was the fact of the payment of the lease money by the plaintiff for the first two years of the lease. In his judgment at line 162, the learned Judge observed as follows:-- "But in view of the payment of the lease money for the first two years, which is not disputed, the plaintiff must prove that he was out of possession from the very beginning." We do not know what is the basis of the statement of the learned Judge, that this payment by the plaintiff to the defendant of the lease money for the first two 'Years was not disputed. It is quite true that after the defendant had filed his written statement and specifically pleaded' all the payments by the plaintiff with all the dates thereof, there was no express denial of it by the plaintiff, and since the plaintiff did not go into the witness‑box, no further occasion arose for him to either admit or deny these payments. It may well be that before the learned Judge in the course of arguments this position might have been admitted, but we have no material on record from which it could be affirmatively asserted that the fact of these payments were not disputed by the plaintiff. We, therefore, asked Mr. Jamaluddin, the learned counsel for the plaintiff appellant, whether he was in a position to admit or deny the fact of these payments, but he said that he was not in a position to make any statement one way or the other. The rule of pleadings, however, is that all adverse allegations in the written statement are deemed to have been denied by they plaintiff. The matter, therefore, with regard to the payments by the plaintiff of the lease money for the first two years was in a most unsatisfactory state. We might, however, note that upon the application of the plaintiff an additional issue was framed in the case, and that was issue No. 5‑A "Was the lease amount actually and legally recoverable front the plaintiff?" It may be that this issue pertains‑ merely to the lease money for which the distress warrant was issued or it may be that this issue was intended to cover the pleadings in the written statement wherein it had been asserted that the plaintiff had paid the lease money for the first two years. We have referred to this matter because if it had been established, as it was assumed, may be with justification, by the learned trial Judge, that the plaintiff had paid rent for the first two years, the onus of proving that he had not been put in possession at all would squarely be upon the plaintiff. With regard to the three issues which have been referred to above, the learned trial Judge while dealing with the question of the burden of proof observed as follows: "It is for the plaintiff to prove the existence of facts exempting him from liability to pay the arrears of lease money for the third and the last year. The plaintiff has failed to prove this fact. Since no evidence is given on either side and the burden of proving this fact is on the plaintiff, his suit must fail." The learned Judge then went on to consider the effect of the payment of the lease money for the first two years by the plaintiff, and held that he was estopped by his conduct from challenging the fact of his receiving possession and that as he led no evidence to prove that he had never been put into posses sion, the findings on all these 3 issues must be against him. With regard to the question whether the onus of proving that the lessee was put in possession would be initially on the lessor so as to entitle him to make a claim for rent, we are in no doubt whatever. Section 108‑A (b) of the Transfer of Property Act reads as follows: "The lessor is bound, on the lessee's request to put him in possession of the property." This being the liability of the lessor; it seems clear that unless he discharges this liability he would not be entitled to make any demand for payment of lease money because if the lessee does not receive possession at all the lessor fails to fulfil his obligation in that respect, and there would be no consideration for tide payment of rent. The demand of the Court of Wards even though it is directed through the process of the Land Revenue Code is still a demand for payment of rent, and this demand could neither be just nor legal if the lessee had never received possession at all. We are, therefore, of the view that where such a demand is made and is challenged by the lessee upon the basis that he was never put into possession of the property inspite of a request to that effect, the burden of proving that possession had been given, would be upon the lessor. The position, however, will change if the tenant had already paid rent under the lease, in which case it will be for the lessee to prove either that he was not put in possession at all or that having been so put he was subsequently dispossessed, or that his possession was disturbed. It was held by the Privy Council in Jogesh Chandra Roy v. Emdad Meah, (59 I A 29) as follows: "Where there is no dispute as to the identity of the subjects of a lease but the tenant denies that he has got possession of them, it is for the landlord to prove that he has discharged his obligation to put the tenant in possession before he can enforce the tenant's obligation to pay rent. Cases are distinguishable where the tenant has already paid rent under the lease, or where the tenant alleges, and the landlord denies, that certain subjects, of which possession has not been given, were within the subjects let; in cases of that nature the onus is primarily on the tenant." In this situation Mr. Abdul Kadir Shaikh, the learned A. A. G. appearing for the respondent, said that as this case was decided mainly upon consideration of the question of onus of proof and also because the fact of the payment of the rent of the previous two years had not been repudiated by the appellant either in the trial Court or before us which may indicate that the observation of the trial Judge that the fact of payment for the first two years was not disputed by the plaintiff, may well have been based upon an oral admission, we should remand this case for trial on the question: whether the plaintiff was or was not put in possession of the lease lands. We consider such a request eminently suitable in the circumstances of this case in the ends of justice. This request was not seriously opposed by Mr. Jamaluddin, the learned advocate for the appellant, though he would have been happier if the appeal would have been decided in his favour purely upon the question of the onus of proof upon the record as it stood. To this position we could not easily succumb. The Courts have in the interest of justice power to remand a case for retrial in a fit case. In a Privy Council case reported in Heirs of Prince Muhammad Salim v. Attorney General of Palestine (A I R 1941 P C 99) a somewhat similar situation arose. This was an appeal from the Supreme Court of Palestine which had set aside in appeal a judgment of the land Court at Jaffa. The suit was brought by the heirs of Prince Mohamed Salim to recover lands said to have been the private property of the late Sultan Abdul Hamid 11 of Turkey. This action was brought against the land Court which was administering the Land (Settlement of Title) Ordinance, 1928‑

39. It seems that before this Ordinance in question came into being, there was a register of land at Jaffa and the land in question was registered therein in the name of the late Sultan from about the year

186. When a new register was opened the entry referred to above was omitted. Section 43 of the Ordinance under which the new register of title was opened provided as follows:‑ "Save as provided in this Ordinance, the registration of land in the new register shall invalidate any right conflicting with such registration. The argument of the plaintiff which prevailed with the land Court was this: "Our title is on the existing register; that constitutes a presumption in our favour; our title was 'omitted' from the new register, therefore, there is a presumption in favour of our right to rectification." The Land Court had, therefore, placed the onus upon the defendant on the basis of the argument reproduced above. The Privy Council in upholding the decision of the Supreme Court which had set aside the finding of the Land Court upon that question held as follows:‑ "The decision of the Judges of the Land Court was obviously vitiated by their misdirection of themselves as regards onus, and in view of the fact that there is only an appeal on a question of law and that the determination of the dispute appears to involve questions of fact as well as law, no other decision 1 could be adopted except what was reached by the Supreme Court; whereby they had ordered a new trial." We hold that in the case before us also an order for fresh trial is clearly indicated. We, therefore, remand this case to the Court below for trying the following issue:‑ "Was the plaintiff put into possession of the leased lands?" The Court below shall take all evidence, oral and documentary, which may be tendered by the parties upon the said issue, and shall try the same and return the evidence to this Court with its findings thereon and the reasons thereof. This should be done with all, possible speed. As no other, point was pressed before us, on behalf of the appellant the decision of the appeal shall depend upon the issue for the trial of which this case is being remanded. K. B. A./ A. H. Case remanded.