1877-78 could rely to show that the Court had jurisdiction to deal with HIRA LALL the case. I fail altogether to see why this case should be dealt PARAMANICK with differently from other cases in which the question of jurisdiction arises. AND OTHERS V. BARIKUNNISSA BEEBEE. Judgment. AINSLIE, J. 1878 January 18. The power of the Court to deal with the suit being impugned, it must be shown by the plaintiff's that the Court has jurisdiction in the matter. The appeal is allowed, and the decree of the first Court restored with costs. by Plaintiffs appealed under section 15 of the Letters Patent. Baboo Gooroo Doss Banerjea, for Appellant. Mr. H. E. Mendies, for Respondent. The following judgment of the High Court (1) was delivered GARTH, C.J.: So far as the merits of this case are concerned, we are not GARTH, C.J. called upon here to adjudicate upon them. The Moonsiff has determined the rate of rent which is payable by the defendant, and the District Judge, in his judgment of the 14th February 1877, says that, as regards the Moonsiff's decision on remand, in which the merits of the case were discussed and settled, the defendant did not raise any question before him. The only point therefore which could be, or has in fact been, raised on special appeal in this Court is that of jurisdiction, which was determined in a former judgment of the Officiating Judge, dated the 13th of May 1876, in favour of the plaintiffs. That judgment has been reversed by the learned Judge of this Court, and we have to consider the correctness of his judgment upon that point only. The question arises in this way :-The plaintiffs, in the year 1862, brought a resumption suit against the defendant's mother, (under whom the defendant claims), in respect of the lands in dispute, upon the ground that she was holding them by an invalid. lakhiraj title. The defendant in that suit contested the claim, but the plaintiffs obtained a decree. It does not appear from the proceedings in that suit whether the lakhiraj grant, under which (1) GARTH, C.J., and BIRCH, J. the defendant claimed, was before or after the year 1790; but it 1877-78 PARAMANICK AND OTHERS v. BARIKUN was distinctly stated in the decree that the plaintiffs (the decree- HIRA LALL holders) were entitled to assess the property. The plaintiffs then, after a lapse of some years, brought this suit against the present defendant (who claimed under the defendant in the resumption NISSA BEEBEE. suit), to have the rent assessed, and the defendant then set up (by Judgment. way of plea to the jurisdiction of the Civil Court) that the lakhiraj grant under which the defendant in the resumption suit claimed was previous to 1790. The Moonsiff, accordingly, framed the ninth issue in the case in these words: "Whether the resumed lakhiraj was of a date anterior to the 1st of December 1790 ?" The Moonsiff considered that the onus of proving the negative of this issue was upon the plaintiffs; apparently, because he thought that the plaintiffs ought to prove that the Civil Court had jurisdiction to try the suit; and as the plaintiffs did not prove the negative of the issue, the Moonsiff dismissed the suit. On appeal, the Officiating Judge reversed the Moonsiff's decision, and remanded the case to be tried upon the merits. He considered that the case of Ranee Shama Soondaree vs. Seetul Khan, 15 W. R., 474, was an authority in the plaintiff's favour, and that the onus of proving the ninth issue lay upon the defendant. On special appeal, the learned Judge of this Court thought the Officiating Judge was wrong; and he restored the Moonsiff's first judgment upon the ground that, as the jurisdiction of the Court to entertain the suit had been impugned, it was for the plaintiffs to prove that the Court had jurisdiction. After fully considering the point, we are unable to agree in the learned Judge's conclusion. The objection made to the jurisdiction of the Court was raised affirmatively by the defendant by a statement that the lakhiraj grant was previous to 1790. The affirmative of the ninth issue, which was framed to meet that allegation, was asserted by the defendant; and by the 101st and 103rd sections of the Evidence Act, the burthen of proving any particular fact in issue lies upon the party who asserts that fact. Moreover, in this case, the rule laid down in section 106 of the Evidence Act is in favour of the plaintiff's view; because, if the defendant and her ancestors held and claimed to hold this property GARTH, C.J. 1877-78 AND OTHERS v. BARIKUN Judgment. GARTH, C.J. under a lakhiraj grant, the terms and the date of that grant would HIRA LALL certainly be rather within the knowledge of the defendant than PARAMANICK of the plaintiff. It is perfectly true, as observed by the learned Judge, that if the grant had in fact been made previously to 1790, NISSA BEEBEE, the Collector's Court would have had jurisdiction to assess the revenue upon the property. But this fact raises no presumption in favour of the grant having been made prior to 1790; on the contrary, if any presumption were to be made as regards jurisdiction, it would be in favour of the ordinary and general tribunals of the country, to the exclusion of any special jurisdiction exercised under a particular Statute by the Collector; and if any presumption could be made in this case from the proceedings in the resumption suit, it would certainly be in favour of the plaintiff; because the decree in that suit contains a declaration "that the plaintiff is entitled to assess the lands." We think, therefore, that, having regard to the rules laid down by the Evidence Act as well as to the general law and the circumstances of this particular case, the onus of proving the affirmative of the ninth issue was upon the defendant. The judgment of the High Court will, therefore, be reversed, and the judgment of the District Court restored with costs in both Courts. END OF VOL. I. 523 ON OLD SITE Section 142. See COMPLAINT Section 222. See SUMMARY TRIAL. (1) Section 263. JURY Section 286. PERTY ... Section 296. See COMMITMENT, OR- ... 93 Section 297. See DISCHARGE, ORDER PERTY Section 453. ... 259 ... See JOINDER OF Section 505. See BAD LIVELI SANCE ... ... Section 521. See" WITHDRAWAL OF 486 136 ... 89 FORECLOSURE Section 108. See APPEAL ... ... 402 Section 230. See LIMITATION. (2) 475 Adverse Possession-Co-sharer-Limitation Ex-parte Decree-Application for re- |