The onus of proving negligence lies on the plaintiffs, and the doctrine of res ipsa loquitur does not apply to cases where fires occur through accidents without negligence.

1. In the suit which is the subject matter of this appeal the plaintiffs alleged that they had let out a house in Mahalla Darzitola in the Patna City Municipality to the defendant on monthly rental. The defendant was a fruit seller and lived! in the house leased out to him by the plaintiffs along with his family. In February, 1949 the house was burnt down by a fire, and the case of the plaintiffs is that the fire was caused due to the negligence of the deft and so the plaintiffs are entitled to compensation in tort. The defendant contested the suit on the ground that the fire broke out suddenly on the north eastern corner of the outer verandah when all the inmates of the house were a sleep and that there was no negligence on his part and that the fire was not due to his negligence. The trial court dismissed the suit on the ground that the plaintiffs failed to prove negligence on the part of the defendant. The lower appellate court has reversed the finding of the trial court and has given a decree for compensation to the plaintiffs.

2. In support of this appeal the argument advanced by the learned Counsel for the appellant is that there is no finding of the lower appellate court that the fire was caused because of negligence on the part of the defendant and it was also contended by learned Counsel that the onus of proof has been wrongly placed by the lower appellate court on the defendant to prove that there was no negligence. We think that the argument of learned Counsel is well founded and that the lower appellate court has wrongly given a decree to the plaintiffs. The case of the plaintiffs was that the fire started in the central hall of the house where the defendant had kept empty fruit baskets and packing cases and also cooking oven and that the fire occurred on account of the negligence of the defendant.

This aspect of the plaintiffs case has been disbelieved by the lower appellate court. The case of the defendant was that the fire started in the north-eastern corner of the outer verandah where there was a rubbish heap. The evidence of the defendant on this part of the case was examined and disbelieved by the lower appellate court. But the lower appellate court has given a decree on the ground that the burden of disproving negligence was on the defendant in the circumstances of this case. The lower appellate court states as follows in the course of its judgment : "It is evident that the fire started somewhere inside the house and this must have been on account of the negligence of the defendant or any of the inmates of the house. The night in which the fire occurred was a winter night and it is admitted that it was a calm and windless night. Therefore, it cannot be said that without any negligence on the part of anyone the fire has spread on account of wind. The learned Munsif appears to have based his decision on the assumption that the burden of proving negligence was on the plaintiffs, and on this he has come to the finding that the plaintiff had failed to prove that the fire occurred on account of the negligence of the defendant. It is admitted that the night was calm and windless.

The defendants explanation that the fire started in the rubbish heap adjacent east of the outer verandah has not been substantiated. The fire started somewhere in the house, and the defendant alone could have given satisfactory explanation of the fire, but he has failed to do so. It is apparent, therefore, that there must have been some kind of negligence by the defendant or any member of his household which caused the fire. These facts afford reasonable evidence in the absence of explanation by the lessee that the accident arose for want of care. There must have been some negligence on his part and he is, therefore, liable for the loss caused to the buildings. The decision of the learned Munsif to the contrary cannot be supported. The defendant respondent is clearly liable for compensation."

3. In our opinion, the lower appellate