JUDGMENT
1. Both Courts concur in finding that no occupancy right has been established. It is urged by the appellant’s pleader that it lay on the plaintiff to show that second defendant was liable to be ejected, and that the second defendant ought not to have been called on in the first instance to prove his occupancy right. We are unable to assent to this view. It is not denied that the land belongs to the agraharamdar, and that the plaintiff obtained a lease from him. There was also evidence in the case to show that the second defendant’s possession commenced about 1843. There is no apparent foundation for the presumption that his enjoyment was immemorial.
2. We cannot therefore say that the Courts below were in error in holding that the onus of proving occupancy right rested on second defendant in this case. The District Judge, however, decided against the plaintiff on the ground that as a mere lessee he was not entitled to sue to eject the second defendant, his lessor not having been in possession at the date of the lease.
3. We are of opinion that the dismissal of the suit on this ground cannot be supported. The agraharamdar is clearly entitled to eject the second defendant on proof of title, unless the latter proved his occupancy right. This being so, we do not see why the lessee claiming under him should be debarred from recovering possession on proof of such titles and his own lease. That he could do so has been held in several decisions. We may refer to prankrishna Dey v. Biswambhar Sein B.L.R., 207. Nor as the privy Council, as observed by the judge, decided to the contrary in Tiery v. Kristo Mohun Bose L.R., 1 I.A., 76.
4. We must reverse the decree of the Lower Appellate Court and restore that of the District Munsif. Appellant is entitled to his costs in this and in the Lower Appellate Court.
