Law: Evidence Act, (1 of 1872)

Section: S. 109

 (a) Evidence Act (I of 1872)------   ------ S. 109-Landlord and tenant- Bargadar pleading tenancy right by subsequent lease alleged to have been created by dakhilas granted by karamchari of landlord -Burden lies on bargadar to prove that karamchari had legal authority to settle land.   A suit was filed by the plaintiff for khas possession by evicting the defendant who was his bargadar in respect of the suit land. The defendant asserted his tenancy right by claiming that he had subsequently taken lease of the land from K, a karamchari of the plaintiff, and in support of this contention he produced two dakhilas bearing signature of the karamchari. The dakhilas, however, did not show that K was authorised to settle any land with anybody. Relying on this evidence as well as the failure of the landlords to deny the fact that K was an authorised agent to lease out the land, the lower Courts came to the conclusion that they were inclined to believe that K was the authorised agent, and, as such, the dakhilas granted by him had created the tenancy right in favour of the defendant :   Held, that the lower Courts had totally misconceived the ques tion of the burden of proof. The burden was on the defendant to prove that he got settlement from an authorised agent of the landlords or that the landlords had accepted such settlement granted by their karamchari. In the absence of any such thing it could not be held that the defendant had acquired tenancy right in the disputed land merely because dakhilas had been granted by the karamchari.   (b) Appeal----   --Mixed question of law and fact-Cannot be allowed to be raised for first time in appeal.   JUDGMENT   This appeal by the plaintiffs arises out of a suit for khas possession by evicting the defendant from the land in suit on a declaration of plaintiffs' title thereto.   Plaintiffs' case, shortly stated, is that the land in suit as described in the schedule ofthe plaint was settled in barga with the defendant who used to deliver half the produce. During the communal trouble of Chaitra, 1356 B. S., the plaintiffs' officer who kept the seha, porcha, chekmuri, etc., in…