Azmi LP:

This is an appeal against the dismissal by the High Court of appellant's application for the removal of a caveat entered at the instance of the respondent, on the documents of title of certain lands of which the appellant was the proprietor.

The application was obviously taken under s. 327 and not under s. 326 of the National Land Code. If the application had been made under s. 326, the Registrar of Titles would then serve a notice of intended removal in Form 19C and remove the caveat at the expiry of the period of one month from the date of the notice unless, before the expiration of the period of one month the caveator has obtained an order of the Court to extend further the said period. Section 327 provides that any person or body aggrieved by the existence of a private caveat may, at any time apply to the Court for an order for its removal and the Court may make such order on the application as it may think just. It would be seen thats. 326 only refers to the power of the Court to extend the period for the removal of the caveat whereas s. 327 provides for power of the Court to make any order in reference to a caveat, which power, would include the power to order removal or otherwise of the caveat. As I understood Counsel for the respondent his contention was if the appellant had taken action under s. 326 then the burden would be on the respondent to prove that he has a registrable interest in the land but in this case as it was the appellant who took action under s. 327 then the burden would be on it to prove that the respondent had no registrable interest.

I am afraid I cannot understand this argument. "Viscount Maugham in Joseph Constantine Steamship Line Ltd. v. Imperial Smelting Corp. Ltd. The Kingswood [1941] 2 All ER 165, 179 dealing with the question of burden of proof in that case says this:

Agreeing with the trial Judge, I think the burden of proof in any particular case depends on the circumstances in which the claim arises. In general the rule which applies is ei qui affirmat non ei qui negat incumbit probatio. It is an ancient rule founded on considerations of good sense, and it should not be departed from without strong reasons.

That rule means "the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it: for a negative is usually incapable of proof."

The learned authors of Sarkaron Evidence express the view that s. 101 of the Evidence Ordinance is based on that rule.

The learned Judge appeared to decide the matter on two questions.

(1)That the caveat registered by the Registrar is proper and valid and

(2)That the appellant had failed to prove that the respondent was not one of the persons specified in s. 323 of the National Land Code.

In my view, he should have gone further into the matter and decide whether in this case the respondent, the caveator, has satisfied him that he has good grounds for his claim. In the first instance in his application for the entry of the caveat, Form 19B, he has to state in para. (2) of that form, the grounds of his claim to the registrable interest. Respondent's application in Form 19B however, is not included in this record of appeal, but I notice that in his affidavit in para. (6) the respondent had merely said: - "I am advised that my said caveat was rightly lodged as I claim a right to a registrable interest in the said land."

In my view he has not only to state his grounds but to substantiate them before the learned Judge. I do not think it is the intention of the law that when a person enters a private caveat against a land he would not be required to prove that he has a good reason in law for doing that and that it should be on the part of the proprietor to satisfy the Court that the caveator has not got good grounds for entering the private caveat. In my view therefore, the burden is on the respondent to satisfy the Court that he has good grounds for his alleged c