1. This is an appeal by the plaintiff in a suit for arrears of rent. The plaintiff claimed rent at the rate of Rs. 27 a year. The defendants contended that they had been dispossessed of a portion of the tenancy by title paramount and that the plaintiff was consequently not entitled to the entire rent claimed. The Court of first instance found that the defendants had not been dispossessed of any lands of their tenancy by title paramount and decreed the claim in full. Upon appeal, the Subordinate Judge has found that the defendants have been deprived of a portion of the lands of their tenancy by title paramount and that they are entitled to an abatement of rent. He has, however, dismissed the suit, as there is no evidence to show what rent is payable to the plaintiff in respect of the lands still in the occupation of the tenants. On the present appeal, it has been argued that the burden of proof was upon the defendants to show, to what extent they are entitled to abatement of rent. In our opinion, there is no foundation for this contention.
2. It was pointed out by Sir Barnes Peacock, C.J, in the case of Gopanund Jha v. Lalla Gobind Pershad . 1869 12 W.R 109., that where a tenant is sued for rent, he can set up eviction by title paramount to that of his lessor as an answer, and if evicted from part of the land, an apportionment of the rent may take place; but the onus is on the lessor to show what is the fair rent of the lands out of which the tenant was not evicted. This view is plainly well-founded on principle, because as stated in Section 102 of the Indian Evidence Act, the burden of proof lies on that person who would fail if no evidence at all were given on either side. The defendants asserted that they had been dispossessed of a portion of the land of the tenancy by title paramount. The burden lay upon them to establish the truth of this allegation. They have discharged that burden; consequently, it is plain that the plaintiff cannot recover rent at the rate of Rs. 27 a year. If the contention of the plaintiff were well-founded, that the burden lay upon the defendants to prove the extent of abatement, it would be incumbent upon the Court, if no evidence were given on either side, to award the plaintiff a decree at the full rate claimed, although the Court was satisfied that he was not entitled thereto.
3. It is thus unquestionable that the burden lay upon the plaintiff to establish what rent he was entitled to recover from the tenants in respect of the lands now in their occupation. This he has entirely failed to do; he directed all his energy to prove that there had been no dispossession of the tenants by title paramount, and did not adduce evidence to show what would be fair rent for the lands in their occupation. As a last resort, the plaintiff has prayed that the case may be remitted to the Court of first instance in order that the question of apportionment of rent may be determined in this litigation. We are of opinion that we should not accede to this request. The burden, as we have said, lay upon the plaintiff to establish his case. He has failed to discharge that burden, because he came into Court with an untrue allegation that the defendants were still in occupation of all the lands of their tenancy and did not adduce direct evidence to show what rent was fairly payable in respect of the lands actually in their possession. Such evidence, indeed, could not be adduced by the plaintiff because that would have been destructive of his case that the defendants were in occupation of all the lands of their tenancy. The plaintiff cannot now be permitted to take the case back to the Court of first instance and to have the question of fair rent tried. It will be open, however, to the plaintiff in any future litigation to claim re-adjustment of rent.
4. The result is that the decree of the Subordinate Judge is affirmed and this appeal dismissed.
V.B/R.K
5. Appeal dismissed.