P L D 1963 Dacca 172 (PLP)

2. The defence inter alia was that the lands in question were resumed by the previous touzi owner Abdur Rouf Choudhury inasmuch as the plaintiffs failed to render service and further that the defendants after their purchase in the revenue sale got the lands in khas ignoring the so‑called claim of the plaintiffs. The learned Munsif found that the plaintiffs failed to prove that they had been washing clothes of the defendants. It was also found that the defendants were in possession. In this view of the matter, the suit was dismissed. On an appeal the learned Subordi nate Judge, however, held that the plaintiffs were in possession and as such the defendant's story of taking khas possession after the revenue sale could not be accepted. The suit was accordingly decreed and the appeal was allowed.

3. Mr. M. A. Khondkar appearing on behalf of the defen dant‑appellants contends that most of the findings being in favour of the defendants in regard to the question as to whether the plaintiffs succeeded in proving condition of service as alleged and the entries in the R. S. records being in favour of the defendants, the learned Subordinate Judge erred in law in relying upon oral evidence which for good reasons was discarded by the trial Court.

4. Mr. Rafiuddin Ahmed, the learned Advocate for the plaintiff‑respondents, on the other hand, contends that this appeal is concluded by the findings of fact inasmuch as it has been found after consideration of whatever evidence on record that the plaintiffs are in possession of the suit land and such possession cannot be explained except on the hypothesis that their service tenure is continuing as before.

5. On a reference to the judgment of the lower appellats Court it appears that the learned Subordinate Judge found that the plaintiffs had no documentary evidence to prove that they were in possession of the suit land after the purchase of the defendants in the revenue sale. It was also observed, and I think rightly, that the onus was heavily upon the plaintiffs to prove that the R. S. khatian Exh. C in respect of the suit land was wrong. The learned Subordinate Judge also observes that it was not clear as to whether the plaintiffs were servants under the pro prietors and their services were being remunerated by the enjoy ment of the suit land or they were tenants in respect of the suit lands burdened with service of the landlords. It does not appear that the parties laid very much stress on the question as to whether the plaintiffs were tenants in respect of the suit lands burdened with service to the landlords. It seems the parties approached each other to determine the question as to whether services were actually rendered and as to whether the plaintiffs were remunerated out of the usufructs of the lands accordingly. It is, therefore, very much material to see as to whether in fact the plaintiffs rendered any service as alleged to the present defen dants after they had purchased in the revenue sale as early as 1941. It is not disputed that the defendants after their purchase in the revenue sale got possession through Court sometime in 1942. It is also not disputed that sometime after that there was a case under section 379 of the Indian Penal Code started by the plaintiffs against the defendants and the former lost in the same. It further appears that the R. S. operation took place sometime after this and the defendants' names were entered in the R. S. record‑of‑rights sometime in 1944. The learned Subordinate Judge also finds at page 19 of the Paper‑book that there is no satisfactory evidence to prove that the plaintiffs rendered service to the defendants‑the present landlords. It is observed: " Thus even if it be held that the plaintiffs washed the clothes of the defendants even after the revenue purchase there was nothing to presume that the services of the plaintiffs to the defendants were being remunerated by the possession of the suit land." In fact, the learned Subordinate Judge disbelieved the plaintiffs that they served the defendants as washer-men by possessing the suit land in Chakran right. Both the Courts below, however, have found that the defendants failed to prove that this so‑called Chakran was resumed by the previous owner of the touzi Abdur Rouf Choudhury. But that by itself does not actually solve the real question. The defendants having purchased in a revenue sale held under Act XI of 1859 of the Revenue Sale Law it was for the plaintiffs to show that their interest, if any, still subsisted in spite of the fact that the defendants manifested their intention of treating the lands as khas by means of their forcible possession at leas t with regard to one of the five plots in respect of which the plaintiffs brought a criminal case but ultimately failed. The onus was surely very heavy in this case upon the plaintiffs but also in view of the fact of forcible possession at the instance of the defendants and in view of the further fact that R. S. records stood in favour of the defendants. The kabuliyat Exh. 1 could not be of any help against the defendants as it came into existence before the relevant revenue sale. The learned Munsif thought it safe not to rely upon the oral evidence which seemed to be equally balanced. On the question of rendering service by way of washing clothes, it only P. W. 1, that is, plaintiff No. 1 who claims to have been washing the clothes not only of the heirs of Abdur Rouf Choudhury but also of the defendants. There is no explanation as to how in spite of the revenue sale services by way of washing clothes could be rendered both to the ex‑proprietor as also to the present defendants in lieu of the usufructs of the identical lands. Be that as it may, there is no corroboration of this part of the evidence of P. W. 1 by any other independent evidence. Even another plaintiff who has examined himself as P. W.7. does not go to the length of supporting P. W. 1 and does not say that clothes of the present defendants are being washed by the plaintiffs and that as remuneration thereof they are holding the lands in question. The learned Subordinate Judge does not also discuss in detail the merits and demerits and of the evidence of each of the witnesses on either side. In a case where, according to him, there is no documentary evidence in favour of the plaintiffs and the onus lay heavily upon them and particularly when the trial Court thought it unsafe to rely upon the oral evidence, the learned Subordinate Judge ought to have scanned and analysed the evidence minutely, if at all he meant to rely upon the oral evidence alone. The learned Subordinate Judge seems to have referred to the fact that the defendants failed to prove the possession of one Bashiruddin Gharami. In this way although the learned Subordinate Judge formulated very correctly that the onus lay heavily upon the plaintiffs yet while applying the principle he seems to have thrown the onus indirectly upon the defendants. In these circumstances I am inclined to think that the learned Subordinate Judge fell into an error while determining the question as to whether the plaintiffs succeeded in discharging their onus of proof.

6. This, however, raises a question as to whether in spite of the fact that the plaintiffs have failed to prove their title and have also failed to discharge their onus of proof in the matter of A possession, they can be deemed to be entitled in law to get a relief by way of declaration at least in regard to their possession. On a reference to the plaint it seems the plaintiffs case was in substance one for declaration of title and for consequential relief in the shape of confirmation of possession which might flow from the title that was to be found in this case. The whole suit, therefore, seems to have been based on the sole question of title. If, therefore, the plaintiffs have failed to prove their title it is difficult to think that any consequential relief could flow from a non‑existent title. I am, therefore, inclined to think that the suit in substance and effect being one for establishment of title and the plaintiffs having failed to prove their case in regard to such principal issue, they are not entitled to get any declaration even in regard to their so‑called possession. That is to say, the consequential relief in the shape of confirmation of possession cannot be decreed in the absence of a finding in their favour on the question of title. Mr. Khondkar also in support of his case relied on a decision in the case of Ganesh Rai and others v. Bhushi Rai (A I R 1925 All. 69).

7. The result, therefore, is that this appeal is allowed with costs; the judgment and decree of the lower appellate Court are set aside and those of the trial Court are restored. S. B./A. H. Appeal allowed.