1. Second Appeal No. 776 of 1952 arises out of Title Suit no. 151 of 1948, and Second Appeal No. 77 of 1952 arises out of Title Suit No. 169 of 1948. Title Suit No. 151 was instituted by Gonour Sah for declaration of title to, and recovery of possession over, 6 kathas 10 dhurs of lands comprised in plot No. 253 appertaining to khata No. 103 in village Sain. Tide Suit No. 169 was instituted by Jagdish Sah and another for declaration of title, and recovery of possession over, 5 kathas 10 dhurs of lands comprised in plot no. 308 appertaining to khata no. 94 in the same village. The plaintiffs of both the suits claimed to have purchased the lands in question under two registered deeds dated 27-6-1945, executed by one Dhurandhar Rai, son of Sunder Rai, who was the recorded tenant in respect of both the khatas. Ramyad Singh was defendant no. 1 in both the suits, and he contested them. His case was that his father, Dwarka Rai, was a first cousin of Sunder Rai, and that Sunder and Dwarka were members of a Mitakshara joint Hindu family. He further alleged that Dwarka Rai was a minor during the survey operations, and Sunder's name was recorded in the survey record-of-rights in respect of the lands in dispute in both the suits because he was then in charge of the family affairs. His case also was that Sunder Rai left village Sain a few years after the final publication of the survey record-of-rights and migrated permanently to village Kapur pakri after relinquishing his title and interest in the lands in dispute.

2. The learned Munsif who tried the suit held that Dwarka Rai was a cousin of Sunder Rai but was separate in status from him from before the survey operations, that Dwarka Rai had no interest in the lands in dispute which were recorded in the name of Sunder Rai, that the defence case that Sunder Rai had relinquished his interest in the disputed lands in favour of Dwarka Rai was not proved to be true, and that the plaintiffs had acquired title to the disputed lands by reason of their purchase. He, however, dismissed both the suits on the findings that the plaintiffs had failed to prove that they had subsisting title in the disputed lands, or, in other words, that they or their predecessor-in-title were in possession of those lands at any time within twelve years before the institution of the suit.

3. The plaintiffs' appeals against the learned Munsif's judgment and decrees were heard by the Subordinate Judge, 1st Court, of Muzafferpur. The learned Munsifs findings in favour of the plaintiffs were not challenged before him. The only point which he was called upon to consider was whether the suits instituted by the plaintiffs were barred by limitation, and, holding that they were not barred, he allowed the appeals and decreed the suits. Defendant no. 1 has, therefore, filed these second appeals in this Court.

4. Gonour Sah, who was respondent no. 1 in Second Appeal No. 776 of 1952, died on 19-11-1954, while the second appeal was pending in this Court. The appeal abated as substitution of Gonour Sah's heirs was not made in time. An application for setting aside the abatement was dismissed by an order of Raj Kishore Prasad, J. on 4-1-1956. Mr. Umesh Chandra Prasad Sinha, who has appeared on behalf of the appellant in both the appeals, has frankly conceded that he cannot press Second Appeal No. 776 because it has abated. That appeal, therefore, stands dismissed.

5. In view of the dismissal of Second Appeal No. 776, Mr. Prem Lall, who has appeared on behalf of the respondents in Second Appeal No. 777, has taken a preliminary objection that Second Appeal must also be held to have become incompetent. In support of this objection, he has relied upon a Full Bench decision of the Allahabad High Court in Zaharia v. Debia, ILR 33 All 51 (A), a decision of the Calcutta High Court in Isup Ali v. Gour Chandra Deb, 37 Cal LJ 184 : (AIR 1923 Cal 496) (B) and a decision of this Court in Mrs. Getrude Oastes v. Mrs. Millicent D'Silva, ILR 12 Pat 139 : (AIR 1933 Pat 78) (C).

6. In the Allahabad case, two persons named Manphul and Zaharia filed two suits for preemption. Each was impleaded as a defendant in the other's suit. Manphul's suit was decreed, and that of Zaharia was dismissed by one and the same judgment; but two separate decrees were prepared. Zaharia appealed from the decree in his own suit, and no appeal was filed against the decree passed in Manphul's suit. It was held that the doctrine of res judicata applied, and that Zaharia's appeal was, therefore barred.

7. In Isup Ali's case (B), Isup Ali, Goaj Ali and Basaratulla instituted a suit against Gour Chandra Deb for recovery of possession of certain lands. Gour Chandra Deb and his brothers subsequently instituted another suit for declaration of their title to a portion of the lands which were the subject-matter of the former suit. The suits were tried jointly, and the suit of Isup Ali and others was dismissed while that of Gour Chandra Deb and others was decreed.

8. The plaintiffs of the first suit filed one appeal before the District Judge against the decrees passed in both the suits but impleaded only Gour Chandra Deb as the sole respondent. It was held that the appeal was defective on two grounds, one being that some of the successful plaintiffs in the second suit had not been joined as parties respondents in the appeal. On this basis, it was held that the appeal to the District Judge had to be treated as an appeal against the decree passed in the first suit. It was further held that the second appeal arising out of the first suit was barred by the principle of res judicata due to the decree in the second suit having become final as between the parties.

9. In the case of Mrs. Gertrude Oates (C) also, Mr. Oates instituted one suit against Mrs. D'Silva, and Mrs. D'Silva instituted another suit against Mrs. Oates. A common question arose for decision in both the suits, namely, whether the partnership between the two ladies had come to an end. The suit of Mrs. Oates was dismissed, and that of Mrs. D'Silva was decreed. Mrs. Oates came up in appeal to the High Court against the decree passed in Mrs. D'Silva's suit; but she did not file any such appeal in the High Court against the decree passed in the other suit. It was held that the decision in Mrs. Oate's suit operated as res judicata as regards the common issue which arose for decision in those two suits, and that the appeal in the High Court was, therefore, barred.

10. It is clear that none of the three cases cited above has any application to the facts of this case because the plaintiff in one suit was quite different from the plaintiffs in the other suit. The fact, therefore, that the decree passed in Gonour Sah's suit (Title Suit No. 151 of 1948) has become final does not operate as res judicata in so far as the appeal arsing out of the suit instituted by Jagdish Sah and another is concerned. The preliminary objection, therefore, fails.

11. The question which now arises for decision is whether there is any merit in Second Appeal No. 777 of 1952. It appears that the learned Subordinate Judge was not fully satisfied with the evidence adduced on behalf of the plaintiffs to prove their case of possession and dispossession but he thought that the evidence was not quite worthless. Relying upon the decision in the case of M.A Rauf v. Bodhi Singh, AIR 1950 Pat 484 (D), he applied the presumption that possession follows tide in order to come to the conclusion that the plaintiff's case of possession and dispossession was true.

12. The first point which Mr. Umesh Chandra Prasad Sinha has raised is that the learned Subordinate Judge's observation that the evidence adduced on behalf of the plaintiffs was not quite worthless is just a stray observation, and that it does not appear that the Subordinate Judge was actually of the opinion that the plaintiffs' evidence was not worthless. I do not think that there is any merit in this criticism. While considering the evidence of the plaintiffs' witnesses, the learned Subordinate Judge has refuted the criticisms advanced by the learned Munsif against the testimony of P.Ws 1, 5 and 8. His discussion shows that he was inchned to think that the evidence of these three witnesses should be accepted.

13. One of the criticisms which the learned Munsif advanced against the plaintiffs' case of possession and dispossession was that they had not put forward their case of their predecessor being in possession of the disputed lands through bataidars before the Sub-Inspector of Police of Kanti, a certified copy of whose report, dated the 25th November, 1945, was exhibit 2. In this connection, the learned Subordinate Judge has pointed out that the learned Munsif failed to consider exhibit F, a certified copy of the deposition of Dhurandhar Rai in the proceeding under Section 145 of the Cr PC which preceded the institution of the suit.

14. He has observed that Dhurandhar Rai appears to have stated in that deposition that he was in possession of the disputed lands through bataidars. The learned Subordinate Judge has further pointed out that the fact that Basudeo (P.W 1), one of the alleged bataidars of Dhurandhar Rai, was examined as a witness in the proceeding under S. 145 had not even been disputed. In these circumstances, it is quite clear that the learned Subordinate Judge was undoubtedly of opinion that the evidence adduced on behalf of the plaintiffs was not valueless.

15. Mr. Umesh Chandra Prasad Sinha has contended, on the authority of the Full Bench decision in Shiva Prasad Singh v. Hira Singh, 6 Pat LJ 478 : (AIR 1921 Pat 237) (E), that the onus in an action in ejectment is upon the plaintiff to prove that he was in possession at any time within twelve years before the institution of the suit. In that case, Sir Dawson Miller stated:

“Assuming that there was no evidence worthy of credit on behalf of either party as to possession, which is what the District Judge found, and assuming, as it is assumed, and I think properly assumed in the judgment now under appeal, that the plaintiff in a suit for ejectment must prove not only his antecedent tide but also his possession within 12 years of the suit, then in the absence of any credible evidence as to possession I consider that the plaintiff must fail and that the presumption arising from title cannot be called in aid to give weight to evidence unworthy of credit any more than if no evidence at all had been given.”

16. This observation makes it quite clear that the presumption that possession follows title cannot be called in aid by the plaintiff to prove his case of possession within twelve years before the institution of the suit in two cases: (1) when he has not adduced any evidence of possession at all, and (2) when his evidence is quite unworthy of credit., and is tantamount to his having not adduced any evidence at all. There is nothing in the decision which can be understood as laying down that the presumption cannot be used in favour of the plaintiff when the evidence adduced by him, though unsatisfactory, is not valueless. Sir Dawson Miller has himself made this clear in Matuk Singh v. Tian Sahu, ILR 2 Pat 1 : (AIR 1922 Pat 432) (F).

17. The evidence adduced on behalf of the plaintiff in that case was not quite satisfactory; but, taking that evidence into consideration along with probabilities of the case and the presumption that possession follows title, the lower appellate Court held that the plaintiff had established his case of possession within twelves years before the suit. It was held that, where the evidence adduced on behalf of the plaintiff is not altogether valueless, the probabilities of the case and the presumptions could be called in and for the purpose of holding that the plaintiff had succeeded in proving his case of possession. Referring to the case of Shival Prasad Singh v. Hira Singh (E), Dawson Miller, C.J observed:

“The Full Bench case to which I have referred did not lay down the proposition that in no case could the probabilities and presumptions be taken into account. The rule there laid down was that it is only in cases where there is no evidence of the plaintiff as to dispossession or, what amounted in the opinion of the Full Bench to the same thing, where the evidence is valueless, that the plaintiff fails to make out his case by merely proving that he had an antecedent title and possession, but it must not be considered, merely because where evidence was given by both sides, the learned Judge who had to determine the case had a difficulty upon the evidence or even considered that evidence not altogether satisfactory, that in such circumstances he was not entitled to give weight to the probabilities of the case or to any presumption which might properly arise from the fact that the plaintiff had previously been in possession and had title.”

18. In M.A Rauf's case (D), which has been relied upon by the learned Subordinate Judge, Raniaswami, J. (as he then was), who delivered the judgment of the Bench, has referred to the decision in Matuk Singh's case (F), in support of the proposition that the presumption and probabilities of the case can be called in aid in appraisement of the evidence and in deciding whether the plaintiff has succeeded in proving his case of possession within twelve years before the suit if the evidence adduced by the plaintiff, though unsatisfactory, is not altogether valueless.

19. Mr. Umesh Chandra Prasad Sinha has contended that the decision in M.A Rauf's case (D), was not approved of in Dhani Jha v. Mt. Dharohari Kuer, 1955 BLJR 202 (G). This is not correct at all and, indeed, one Bench could not disapprove of the decision of another Bench. All that has happened in the M.A Rauf's case (D), has been distinguished in Dhani Jha's case (G). Matuk Singh's case (F), was also considered by their Lordships in Dhani Jha's case (G), and Choudbry, J. has observed at page 205 of the report that Matuk Singh's case (F), had no bearing on the case before him because, apart from other matters, the lower appellate Court had held that the oral evidence adduced by the defendants was superior to that adduced by the plaintiffs.

20. Das, C.J has observed in his separate judgment in the same case at page 209 of the report that the decision in Matuk Singh v. Tian Sahu (F) does not in any way abrogate or modify the principles laid down earlier in Shiva Prasad Singh v. Hira Singh (E). While referring to the problem which Dawson Miller, C.J had to deal with in Matuk Singh's case (F), he has stated:

“His Lordship was dealing with a somewhat different problem, namely, the problem as to how far the final Court of fact is entitled to consider probabilities of the case as disclosed by other parts of the evidence or the presumptions which may arise from the plaintiff's title in a case where the oral evidence of possession is not altogether satisfactory. The decision of his Lordship was that the final Court of fact could take into consideration the probabilities and circumstances arising in the case:……”

21. There is nothing in the decision in Dhani Jha's case (G), which can be taken as laying down a rule different from that laid down in Matuk Singh's case (F).

22. In the present case, it has been found that the defendant's case that Sunder Rai relinquished his interest in the disputed lands in favour of Dwarka Rai has not been made out. It has further been found that the plaintiffs have acquired good title to those lands. The learned Subordinate Judge was inclined to believe some of the witnesses examined on behalf of the plaintiffs: but, being in some, doubt, he removed that doubt by application of the presumption in favour of the plaintiffs that possession follows title.

23. In these circumstances, it is clear that this case falls within the rule laid down in Matuk Singh's case (F), and the decision of the learned Subordinate Judge that the suit was not barred by limitation cannot be disturbed.

24. For the reasons given above, I do not find any merit in the appeal. The result is that Second Appeal No. 776 of 1952 is dismissed but without costs. Second Appeal No. 777 of 1952 is, however, dismissed with costs to the plaintiffs-respondents.

R.G.D

25. Appeals dismissed.