Raja Shiva Prasad Singh v. Hira Singh

Dawson Miller, C.J:— The plaintiffs in this case sued for possession of certain lands alleging that they had been wrongfully dispossessed by the defendants 1 to 3. The plaintiffs claimed their title under a registered kabala granted by one Gobardhan Singh in 1308 F. (1901 A.D), that is, some 15 years before the institution of the suit. They pleaded that they were in possession up till the month of Assar 1323 F. (June 1916 A.D), when they were dispossessed by the said defendants. It is, therefore, admitted that the defendants were in possession at the date of the suit which was instituted on the 9th August, 1916. The main defence was that the lands did not belong to the plaintiff's vendor at any time but to the Raja of Jharia. The defendants 1 to 3 claimed to be bhagidars under an ijara granted by the lessee of the Raja. The Raja of Jharia and this lessee were subsequently added as defendants 4 and 5 respectively. The defendants further contended that the suit was time-barred, they having been in adverse possession for over 12 yens. Both the Munsif, and the District Judge on appeal found that the plaintiffs' title had been proved and no question on that issue arises in this appeal, the only point for determination being whether the plaintiffs had lost their right to recover by 12 years adverse possession on the part of the defendants. Both sides gave evidence of possession. The learned Munsif, who considered the evidence very meagre and unsatisfactory, was not satisfied that either side had made out their case on the question of possession, but be gave the plaintiffs the benefit of the presumption that possession follows title and decreed the suit in the plaintiffs' favour.

2. On appeal the District Judge affirmed the finding as to the plaintiffs' title. On the question of limitation he pointed out, that the defendant's possession at the date of the suit was admitted, and, having dealt with the evidence of the parties on the question of possession for the earlier portion of the 12 years, found that the evidence on both sides on this point was equally valueless. The result was that, apart from any presumption, the plaintiff had failed to prove possession within 12 years and the defendants had failed to prove continuous possession for a period of 12 years before the suit. The defendant, however, being admittedly in possession when the suit was instituted, the only question was whether any presumption that possession followed title arose in such a case. The learned District Judge was of opinion that except in lands of a special character such as waste and jungle lands the presumption that possession follows title only arose in cases where the evidence of possession on both sides was equally balanced and not, as here, where it was equally unworthy of credit. He accordingly dismissed the suit setting aside the decree of the Munsif. It may be observed that the learned Judge, in saying that the presumption only arose where the evidence was equally balanced, probably meant to say when the evidence was equally strong on both sides and apparently equally balanced, as the latter was the proposition laid down in the case of Lala Singh v. Mir Latif Hossein(1) which he quoted in support of his decision.

3. The plaintiffs appealed from that decision to the High Court and the case was argued before Jwala Prasad, J. That the learned Judge took the view that in the circumstances stated, the plaintiffs having proved their title by the kabala of 1308 F. (1901 A.D), the presumption arose that possession followed title until that presumption was rebutted by some reliable evidence as to adverse possession for 12 years, and as the defendants had failed to prove their possession by any reliable evidence for the period before the date of dispossession admitted in the plaint, viz., Assar 1323 F. (June 1916 A.D), the plaintiffs bad discharged the burden of proof oast upon them. He accordingly allowed the appeal and decreed the plaintiffs' suit. From that decision the present appeal has been preferred by the defendant No. 4 under clause 10 of the Letters Patent to this Bench. The learned Judge whose decision is now under appeal relied upon two earlier cases of this court, to both of which he was a party, viz. Bhuban Mandal v. Jugal Hazra S.A No. 726 of 1917 unreported and Bhikhad Bhanjan Narayan Tewari v. Upendra Nath Roy(2), in both of which it was held that where there is either no evidence of possession by either party or where the evidence is equally unsatisfactory on both sides the presumption arises that possession follows title. Apart from these two cases I have been unable to discover any authority which directly supports the learned judge's ruling. The question for decision is one which presents some difficulty as the decisions in this court on the subject are not uniform. One of the learned Judges who decided the first of the above cases was, when a Judge of the Calcutta High Court a party to the decision of Lala Singh v. Mir Latif Hossein, which laid down that where the evidence of possession is equally unreliable on both sides no such presumption as that relied on arises. The same learned Judge in 1916, when a Judge of this court, sitting singly, in the case of Fakira Lal Sahu…Plaintiff v. Ram Charan Lal…Defendant .(3). expressed the same view as he had previously expressed in the Calcutta High Court. The off eat of the decision in Fakira Lal Sahu's case, was that it is Only when the evidence of possession is strong on both sides and is equally balanced that the presumption that possession goes with title should prevail, and that this principle does not apply to cases in which the evidence is equally unworthy of credit on both sides. In this conflict of authorities, although the two cases relied on by the learned judge whose judgment is now under appeal, were decided by a Division Bench, whereas the contrary view, so far as this court is concerned, was that of a single judge, I think it is desirable that we should not follow those decisions unless upon further consideration we are satisfied that they were right. Upon an examination of the authorities I have arrived at the conclusion that these decisions cannot be supported. In the year 1860 the case of Maharaja Koowur Baboo Nitrasur Singh v. Baboo Nund Lall Singh(4) came up for decision before their Lordships of the Judicial Committee of the Privy Council. The dispute there was between neighbouring zamindars. Both parties claimed the disputed lands as within the boundaries of their zamindari. The plaintiff admitted the defendant's possession for some 10 or 11 years before the suit. The defendant claimed that it had existed for a much longer period. The majority of the Sadder Court, without considering the question of title, which had been determined in the plaintiff's favour in the trial court, and without impugning that finding, dismissed the suit on the ground that the plaintiff, even assuming his title to be proved, had tailed to establish dispossession within 12 years, and, therefore, his own possession within that period. The dissentient Judge thought the finding in favour of the plaintiff's title might shift the burden of proof as to the date of dispossession on to the defendant and that there should be a new trial with direction to consider the evidence from that point of view. On appeal to Her Majesty in Council the decision of the majority of the Sadder Court was affirmed. Their Lordships agreed that the issue of possession was the first to be considered in the case and wholly independent of the question of title. In delivering the judgment of the Board, Turner, L.J, after pointing out that where the appellant was seeking to disturb the admitted possession of the defendant, it clearly lay on him to prove dispossession within 12 years and therefore, that he or some person through whom he claimed was in possession during that period, observes “No proof of anterior title, such as would be involved in the decision of the boundary question in his favour, can relieve him from this burden, or shift it upon his adversaries by competing them to prove the time and manner of dispossession. The lands in question may have been part of Mouzah Gopaulpore, and, as such, may have been enjoyed by his ancestor, and yet he may have lost, by lapse of time, his right be recover them.” The learned Lord Justice then proceeds to discuss the evidence of possession on both sides of which there was considerable volume, and sums up thus. “Let it be granted, however, that the oral evidence on the part of the respondents is no better than on the part of the appellant, it must still lie on the appellant to make out his case”. He then considered the probabilities and came to the conclusion that they were decidedly against the appellant and that he had failed to give that proof of possession which was essential to the maintenance of the suit.

4. From that decision I think the principle may be deduced that in a suit for ejectment on the ground of wrongful dispossession the plaintiff must prove possession on the part of himself or those through whom be claims within the period of limitation, and that he does not discharge the burden merely by establishing his title and proving enjoyment at some period beyond 12 years from the commencement of the suit, because, as was pointed out, he may still have lost by lapse of time his right to recovery. It would seem to follow as a necessary conclusion from this principle that where there is no evidence of the plaintiff's possession during the limitation period the suit must fail for want of proof, even it he should establish his title at some earlier period coupled with enjoyment. The decision also establishes that where there is evidence on both sides of more or less equal weight so as to create a doubt as to where the truth lies the probabilities may be regarded and may supply the additional weight necessary to turn the scale in favour of one side or the other. But it seems to me that where there is no evidence in support of a fact the bards of proving which lies upon the plaintiff no amount of probability will supply the place of direct evidence, and similarly, where there is some evidence, but of such a nature that it is rejected as unworthy of credit, the party upon whom the burden lies can be in no better position than if he had called no evidence at all.

5. Between the date of the decision last mentioned and 1873, their Lordships of the Privy Council on more than one occasion reiterated the principle that in all such cases the plaintiff must prove not merely a prior title but possession within the limitation period. [Sea Raja Sahib Prehlad Sein v. Doorga Pershad Tewarree(5), Beer Chunder Jobraj v. The Deputy Collector of Bhullooah(6).] In 1873 the case of Ranjeet Ram Pandey v. Goburdhun Ram Pande(7) came before their Lordships for decision. In that case one of the questions for determination was whether the respondents, who sued the appellant for the recovery of three mouzas, had proved not only their title but their possession within 12 years of the suit. In that case, as in the other, there was strong evidence adduced by both sides on that question, the respondents claiming to have been in possession before and up to within 12 years, and the appellant claiming to have had possession for over 12 years before the suit. Their Lordships stated that it was extremely difficult to come to a conclusion which was satisfactory to the mind where the evidence was so conflicting, and considered whether there was any presumption be derived from the other parts of the case in favour of one side or the other. The judgment then proceeds, “Now the ordinary presumption would be that possession went with the title. That presumption cannot of course be of any avail in the presence of clear evidence be the contrary, where there is strong evidence of possession as there is here, on the part of the respondents opposed by evidence, apparently strong also on the part of the appellants, their Lordships think that, in estimating the weight due to the evidence on both sides, the presumption may, under the peculiar circumstances of this case, be regarded and that, with the aid, of it, there is a stronger probability that the respondent's case is true than that of the appellant.

“It may also be observed that their Lordships are not disposed to give credit to the evidence brought forward by the appellant, inasmuch as his case which rested upon the theory that he had acquired this property for himself, has been found to be wholly untrue.”

6. The passage just quoted has been taken to support the proposition that where there is no evidence of possession on either side or where the evidence of each party is unworthy of credit, possession may be presumed to accompany title. In my opinion that decision lends no support to such a proposition. It should be observed that in the passage quoted the presumption is only called in aid for the purpose of adding weight to evidence in itself credible, but so shaken by adverse testimony as to create doubt or difficulty is arriving at the truth. Where there is no evidence or only such evidence as is found to be unworthy of credit, the presumption in itself does not carry the weight of proof. The presumption is one of fact and merely gives rise to a probability and can have no more weight than any other probability arising from the circumstances of the case. Unlike a presumption of law it does not enjoin upon the court the necessity of drawing an inference, either conclusive or rebuttable, of the existence of a fact. The decision of that Lordships of the Judicial Committee in Mohima Chunder Mozoomdar v. Mohesh Chunder Neoghi(8), given in 1888, again emphasises the necessity of the plaintiff proving not merely title and antecedent possession but possession within 12 years. In that case the claimants had shown that they were formerly proprietors of the land to which they alleged title and from which they claimed if oust the defendants who had dispossessed them according to their case within 12 years of the suit. Their Lordships pointed out that the suit was in reality what, in England, would be called an action for ejectment, and in all actions for ejectment, where the defendants are admittedly in possession and, a fortiori where they had been in possession for a great number of years and under a claim of title, it has upon the plaintiff to prove his own title, and it is the opinion of their Lordships that, in this case, the onus is thrown upon the plaintiffs to prove their possession prior to the time when they were admittedly dispossessed, and at some time within 12 years before commencement of the suit, namely, for the two or three years prior to the year 1875 or 1874, and that it does not lie upon the defendants to show that in fact that the plaintiffs ware so dispossessed.”

7. These cases have been considered in subsequent decisions in the Calcutta High Court, and although it has from time to time been contacted that in the absence of evidence of possession within 12 years on the part of the plaintiff, the presumption that possession follows title may properly be made until rebutted, I have been unable to discover any case in that court in which the proposition has been sustained. In Mohomed Ali Khan v. Khaja Abdul Gunny(9), decided in 1883, the plaintiff, suing in ejectment, proved title and possession at a period beyond 12 years from the date of the suit. The majority of the Full Bench, following the Privy Council ruling in Maharajah Koowur Baboo Nitrasur Singh v. Babu Nund Lall Singh, held that as a general rule the plaintiff cannot, merely by proving possession at any period prior to 12 years before suit, shift the onus to the defendant; but where the land is of such a nature that actual user in the ordinary methods cannot be expected, possession may be proved by evidence which in the case of cultivated lands would be insufficient, and in such cases all that can be required is that the plaintiff should show such acts of ownership as are natural under existing conditions, and where this has been dona, prior possession may be presumed to have continued until, the plaintiff is shown to have been dispossessed. On the question of the quantum of proof in such cases it was further laid down in that case, “that where land has been shown to have been in a condition unfitting it for actual enjoyment in the, usual modes at such a time, and under such circumstances that state naturally, would, and probably did, continue title within twelve years baton suit, it may properly be presumed that it did so continue and that the plaintiff's possession continued also, until the contrary is shown.”. The application of that principle however, was confined to those cases in which the land was of such a peculiar nature that possession could not be excepted to be proved by acts of actual user and enjoyment.

8. If the contention be sound that in ordinary cases, where there is no evidence, or no reliable evidence, of possession by either party during the disputed period, possession must be presumed to go with title, it would follow that the plaintiff by merely proving title and possession at some period earlier than 12 years before the commencement of the suit would make out a prima facie case and throw the burden of proof upon his adversary, which is the very thing he cannot do. In the case last mentioned it is true that the majority of the Full Bench held that the presumption ought to be considered in the circumstance of the case together with all the evidence, but that was upon the ground that the lands in suit were of a special character of which evidence of actual user in the ordinary manner could hardly be expected.

9. In another case in the same court in 1885, Dharam Singh v. Hur Pershad Singh(10), it was objected by the appellant that the lower appellate Court had disposed of the question of possession by reference only to the presumption arising from title. Dealing with this argument Field, J., said that if the judge bad pursued that course he would undoubtedly have been wrong, but that there was positive evidence of possession on behalf of both parties and that the courts below preferred that of the plaintiffs which accorded with the title which was found to be in them, a course which was in accordance with the principle laid down in the Privy Council in Runjeet Panday v. Goberdhun Ram Panday.

10. The latter case of Ram Kumar Ray v. Gobind Chundus Rey(11) decided in 1892, is not in my opinion in conflict with the view I have already expressed. There the land in suit was of a special character and evidence of possession could not be expected to be proved by acts of ordinary user as in the case of cultivated land. Moreover, each party tendered positive evidence on the question of possession and their Lordships found that, even assuming the burden of proof upon the plaintiff to be such as the defendants contended, he had sufficiently discharged it by proving such acts of possession with it the limitation period as the land was capable of.

11. Again in Thakur Singh v. Bhogeraj Singh(12), decided in 1899, the question turned upon the peculiar nature of the land in suit and the nature of the evidence necessary to prove possession where the land was incapable of user in the ordinary manner, but the court pointed out that the Munsif had been wrong in holding that the presumption that possession follows title arose where the evidence of possession was equally unreliable on both sides, and that the true application of the principle would be where the evidence of possession is strong on both sides and apparently equally balanced.

12. Again in 1904 in Babu Krsturi Singh v. Raj Kumar Babu Bissun Pargas Narain Singh(13), it was stated by the court (Bodilly and Mookerjee, JJ.) following Thakur Sing v. Bhogeraj that the presumption might not have been applicable it the District Judge had found that the evidence of the plaintiffs upon the question of possession was of the same unsatisfactory character as that of the defendants. It had been found as a fact in that case that the land in suit had been under water, had been reclaimed and had become capable of actual occupation within 12 years of the suit, and, therefore, the plaintiff's previous possession was presumed to have continued up to that point of time.

13. It has been suggested that Mookerjee, J., one of the judges in the last mentioned case, expressed a different opinion three years later in Mirza Shumsher Bahadur v. Munshi Kunj Behari Lal(14), but as pointed out by Holmwood and Mullick, JJ., in Lala Singh v. Mir Latif Hossein, either the judgment has been misreported or an error has crept into it because the passage relied on for the suggestion is that at page 280 of the report which purports be state the principle laid down by their Lordships of the Judicial Committee in Runjeet Ram Panday v. Guburdhun Ram Panday, and clearly misstates the principle. Moreover a perusal of the judgment as a whole shows that it was only in respect to the jungly lands incapable of cultivation that the presumption was applied that possession followed title, whereas when dealing with the cultivated lands, the court arrived at a different conclusion. With regard to the cultivated lands the court, after considering the nature of the evidence of possession required in the case of different kinds of land, proceeds at page 279 thus. “In these circumstances, it is impossible to support the decision of the District Judge upon this part of the case. The presumption which he raised in favour of the plaintiff would he available, only so ling as the lands continued to be jungle. The presumption, however would case be operative after the land was cleared of jungle, and was brought under cultivation. In the result the appeal was dismissed only in so far as it concerned the jungle and bhil lands of which earlier possession was presumed to continue and some cultivated land over which the plaintiff had proved actual enjoyment and possession within 12 year, and was allowed as to the cultivated lands over which no actual possession had been proved during the same period, but which the District Judge had presumed to be in the plaintiff's possession because he had proved title and possession at an antecedent period.

14. From a review of the cases I think the following principles appear to be established. In all cases where the plaintiff sues in ejactment he must prove a subsisting title and possession within 12 years of the commencement of the suit. In the absence of any evidence of his possession within 12 years be fails to prove a subsisting title because he may have lost by lapse of time his right to recover, and the onus of proving that he was dispossessed within that time is upon the plaintiff. Where there is evidence equally strong on both sides as to possession within 12 years so that it is difficult to determine where the truth lies the probabilities may be sufficient to determine the question of fact in favour of one side or the other. Similarly, in such cases the presumption that possession goes with title, which is a presumption of fact and amounts to no more than a probability may be regarded as supporting the evidence of the plaintiff and may assist the court in coming to a conclusion in his favour. This presumption need not necessarily be drawn as in the ova of a presumption of law. It is rebuttable and carries mire or lass weight according to the circumstances of the case. But in my opinion the presumption in itself cannot supply the place of all evidence in cases where such evidence may reasonably be expected to be obtainable as in the case of possession of cultivated lands. Indeed the essence of evidence of possession of cultivated lands by the plaintiff, on whom the onus lies, may, I think. Itself afford a presumption against him at least as strong as that which arises in his favour from proof of antecedent title and possession. Possession, however, is not always capable of proof by acts of actual use, and the absence of evidence of user in the case of submerged or jungle waste lands does not necessarily raise a presumption against the plaintiff's continued possession where antecedent title and possession are proved, and in such cases it has been held that the continuance of possession may be presumed if antecedent title and possession are proved.

15. The view above expressed is not in my opinion at variance with the decision of this court in the recent case of Madan Mohan Singh v. Braj Bihari Lal(15). In that case, as I read the report, the evidence showed that the defendants had not been in possession for the full statutory period of 12 years and, therefore, it was found as a fact that the dispossession began within that period. It appears to have been one of those cases in which the plaintiffs proved their case by the evidence of the defendants' witnesses although their own evidence alone might have been insufficient to satisfy the burden oast upon them. In the present case the question is one of onus of proof where there is an entire absence of reliable evidence on the point.

16. In my opinion the decision appealed from was wrong and the decree of the learned District Judge should be restored but as this opinion is contrary to the view taken by this court in Bhuban Mandal v. Jugal Hazra S.A No. 728 of 1917 unreported, and Bhikhan Bhunjan Narain Tewari v. Upendra Nath Roy, the question should be referred to a Full Bench for final decision under Chapter V, rule 2, of the High Court Rules. The question for decision is whether the judgment appealed from was right in so far as it held that where the evidence of possession within 12 years of the suit has been found to be equally valueless on both sides the plaintiff has satisfied the burden of proof cast upon him of proving his possession within that period by proving merely a title and possession at some antecedent period and whether the cases of Bhudan Mandal v. Jugal Hazra S.A No. 728 of 1917 and Bhihkad Bhunjan Narain Tewari v. Upendra Nath Roy were rightly decided.

JUDGMENT OF THE FULL BENCH

17. Dawson Miller, C.J:— The facts of this case are folly set out in the Order of Reference and it is unnecessary to repeat them hare. It has been contended, however, that the question for decision formulated in the Order of Reference does not correctly represent the decision of the learned judge in second appeal in so far as it states that one of the questions for decision is whether that judgment was right in holding that, when the evidence of possession within 12 years of the suit has been found to be equally valueless on both sides, the plaintiff has satisfied the burden of proof east upon him of proving his possession within that period by proving merely a title and possession at some antecedent period. What in fact my learned brother in his judgment said was this:

“The question involved in the present case is whether in the circumstances the learned Munsif was justified in giving the benefit of the presumption referred to above to the plaintiffs.”

18. The circumstances which must be taken as determined and to which my learned brother bad in the previous paragraph of his judgment referred, were those found by the District Judge on appeal, viz., that the evidence of possession on both sides was equally unworthy of credit. The case was then considered on that hypothesis and Indeed could be considered on no other as those were the facts found by the District Judge and were conclusive in any further appeal. Then, after referring to the two cases of Bhuban Mandal v. Jugal Hazra S.A No. 728 of 1917 and Bhikhand Bhunjan Narain Tewari v. Upendra Nath Roy, the correctness of which decisions has also been referred to this Bench, the judgment proceeds.—

“It is true that in a suit in ejectment the plaintiff has to prove not only his title but also his possession within 12 years of the date of suit. When the plaintiff proves his title the presumption no doubt arises in his favour as to his having been in possession of the property on the strength of his title.”

19. He then finds that the Munsif was right in holding that the plaintiff must have been in possession in 1901, the data of his kabala, which is more than 12 years before the commencement of the suit. The judgment then points out that the courts below found that the defendants tailed to prove their title as well as their possession and that so far as they ware concerned the matter was settled as no presumption in favour of trespassers could be raised, and adds,

“As to the possession of the plaintiffs the trial court was justified in raising the presumption in their favour on the ground that they were the rightful owners of the land and upon the fact that they gave some evidence of possession.”

20. But I may point out that evidence must be regarded as unworthy of credit as the District Judge found. Finally, the judgment concludes by saying that the raising of the presumption was a matter within the discretion of the trial court and as the District Judge had not differed from the Munsif in his findings or come to a definite finding in favour of the defendants' possession it was not open to the District Judge to overrule the decision and that his view of the law on the subject was wrong.

21. I have dealt at length with the judgment of my learned brother now under appeal as it has been argued that I have in the order of reference misrepresented the enact of his judgment. I am unable to see that I have done so but to make it quite clear I wish to point out that where I ventured with great respect to differ from his judgment was that whereas upon the facts found by the District Judge, which must be taken as conclusive, be considered that it was not open to the District Judge to reverse the decision arrived at by the Munsif, I take a contrary view. Assuming that there was no evidence worthy of credit of 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 title 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 muss fail and that the presumption arising from title cannot be called in aid to give weight to evidence unworthy of credit any more man if no evidence at all had been given. In the order of reference I have given at length my reasons for arriving at this conclusion and have referred to the authorities which in my opinion support it. After further argument I see no reason to modify the View there expressed and it is unnecessary to repeat what I than said.

22. It has been argued, however that in all cases where the defendant sets up a title by adverse possession, whether the suit is one based upon dispossession or not, the onus lies upon the defendant to prove his adverse possession for 12 years before the suit. In my view this is stating the legal proposition too broadly. In support of the proposition the case of Radha Gobind Roy v. Inglis(16) decided in 1880 is relied on. That was a decision of their Lordships of the Judicial Committee of the Privy Council and is binding upon this court. The case was one in which the plaintiff sought a declaration of his right to, and to be restored to possession of certain land which had originally been covered with water forming a large bheel but which in recent years had to some extent become dry and cultivable and be sought to set aside certain orders of magistrates whereby the question of possession had been decided against him. The plaintiff proved his title to the mauza of which the land in suit was found to be a part. It was also found that the land in suit had all been reformed from the bed of the lake and became dry and cultivable within recent years, certainly within less than 12 years before the institution of the suit. The defendant disputed that the land in question ever formed a portion of the mauza and also set up a plea of adverse possession for more than 12 years. Their Lordships on the facts stated held that on the question of possession the issue was an doubtedly on the defendant and that he must prove that the plaintiff had lost his title by reason of the defendant's adverse possession.

23. It can hardly be assumed that this judgment was intended to modify the earlier decision of their Lordships in the case of Maharajah Koowur Baboo Nitrasur Singh v. Baboo Nund Lall Singh which decided that in a suit for ejectment based upon possession and dispossession within 12 years the onus lay upon the plaintiff to prove that the dispossession took place within 12 years and that he did not discharge that burden by merely proving title coupled with enjoyment at some earlier period. The correct view of Radha Gobind Roy's case appears to me to be that the case was not one based upon a dispossession by the defendant of the land as such and there was no allegation that the plaintiff had ever been in actual possession of the land after it formed by the drying of the water. In other words the case was not one falling under Article 142 of the Limitation Act but under Article 144. It is also to be observed that in that case, as was pointed out by Sir Arthur Wilson in delivering the judgment of the majority of the Full Bench in Mahomed Ali Khan v. Khaja Abdul Gunny, their Lordships observed “The Subordinate Judge does not appear to have bad his attention directed to the very important question when the new land formed.” The defendant's possession could only have begun as that period upon the facts found and their Lordships agreed with the finding of the High Court that the lands only formed within the statutory period of 12 years. If that case must be taken as an authority for the broad proposition that in actions for ejectment based upon dispossession of the plaintiff the burden of proof is oast upon the defendant of showing that he is entitled to retain possession once the plaintiff has proved title at some period more than 12 years ago it seems hardly possible to suppose that 8 years later in the case of Mohima Chunder Mozoomdar v. Mohes Chunder Neoghi their Lordships would again have taken the view expressed in Maharajah Koowar's case and have said that “in all actions for ejectment where the defendants are admittedly in possession and a fortiori whereas in this particular case they had been in possession for a great number of years and under a claim of title it lies upon the plaintiff to prove his own title. The plaintiff must recover by the strength of his own title and it is the opinion of their Lordships that in this case the onus is thrown upon the plaintiffs to prove their possession prior to the time when they were admittedly dispossessed and at some time within 12 years before the commencement of the suit, namely, for the 2 or 3 years prior to the year 1875 or 1874 and that it does not lie upon the defendants to show that in fact the plaintiffs were so dispossessed.”

24. Other cases were cited by the learned Vakil for the appellant in support of his contention but in none of them so far as I have been able to discover was the cause of action based upon a dispossession. It follows that in my opinion the appeal should the allowed and the cases relied upon were wrongly decided. I think the appellants are entitled to their costs in all courts.

25. Jwala Prasad, J.:— The reference to the Full Bench is in the following terms:—

“The question for decision is whether the judgment appealed from was right in so far as it hold that where the evidence of possession within 12 years of the suit has been found to be equally valueless on both sides the plaintiff has satisfied the burden of proof oast upon him of proving his possession within that period by proving merely a title and possession at some antecedent period, and whether the cases of Bhuban Mandal v. Jugal Hazra S.A 728 of 1917 and Bhikaad Bhunjan Narain Tewari v. Upendra Nath Roy were rightly decided.”

26. The judgment appealed from, referred to in the aforesaid passage and which has given rise to this reference, was delivered by me sitting singly on the 18th November, 1919. By the aforesaid judgment I set aside the judgment of the District Judge, dated the 18th February, 1918, and restored that of the Munsif, dated the 25th August, 1917 decreeing the plaintiffs' suit for recovery of possession of land described in Schedule Kha which is a portion of the land described in Schedule Ka of the plaint. The land in Schedule Ka is known as the Pathar-Chapar-bahal land. It originally belonged to the plaintiffs and their uncle Nagar Singh and after the death of the latter it belongs entirely to the plaintiffs, they being his heirs.

27. The plaintiffs sold the entire Pathar-Chapar-bahal land to one Gobardhan Singh by a registered kabala dated the 26th Phagun, 1297 B.C (1890). After some time in 1306 the plaintiffs took settlement of the land from Gobardhan Singh, and in 1308 they purchased the same from him by a registered kabala, dated the 20th Phagun, 1308 (1901). The plaintiffs' case was that they were in possession of the land till Asadh 1323 (1916), when the defendants 1 to 3 dispossessed them from a portion of their Pather-Chapal-bahal land. The plaintiffs therefore brought the suit out of which this appeal has arisen for recovery of khas possession of that portion as described in Schedule Kha of the plaint.

28. Defendant No. 4 is the Raja of Jherria, who is the owner of the adjoining land to the north of the plaintiffs' Pathar-Chapar-bahal land, known as Pakadia bahal main land. Defendant No. 5 is the lessee of the said Pakadea bahal main land from the Raja of Jherria. Defendants 1 to 3 are bhagidars under defendant No. 5. The defendants' case was that the disputed land was a portion of the Pakadia bahal main land, and not a portion of the plaintiffs' land called Pathar-Chapal-bahal land. The defendants claimed the land as their own and also alleged that they were in adverse possession of the same for over 12 years. Both the courts below concurrently held that the land in question was a portion of the plaintiffs' Pathar-Chapar-bahal land, and not that of the defendants Pakadia bahal main land. The question of title is, therefore, concluded by the concurrent findings of the courts below. It is, however, worthy of note that the Munsif in arriving at this conclusion found on inspection that the Pakadia bahal main lands which are admittedly north of the plaintiffs' Pathar-Chapal-bahal lands were

“lying in a danga condition, were in poor and wretched condition and not properly oared for”.

29. The Munsif says—

“the khets now require labour and expenditure to be restored to their original condition. It appears to me that it was to make up the loss that defendant No. 5 Banwari Sarkar, lessee of main lands, has set up his bhagidar to get hold of the plaintiffs' lands.”

30. This clearly means that the plaintiffs, and not the defendants 4 and 5, could possibly have cultivated the disputed lands which belonged to the plaintiffs when they themselves could not cultivate their own adjoining lands, and they therefore settled them with defendants Nos. 1 and 3 who on the strength of their settlement dispossessed the plaintiffs. The plaintiffs' lands to the south are cultivated lands including the disputed portion and the Munsif was right in holding that this made it more probable for the plaintiffs to be in the cultivating possession of the disputed lands than the defendants. The rough sketch noted below will fully illustrate this and throw great light upon the conflicting evidence of possession adduced by the parties.

31. Now, both parities entered into evidence to prove their respective possession over the land in question. The Munsif held that the oral evidence of possession on both sides was unsatisfactory. In view of the circumstance indicated above, which was brought to light during the local inspection held by the Munsif in order to appreciate the evidence, be gave the plaintiffs, “the benefit of the presumption that possession follows title” and held that the plaintiffs' suit was not barred by limitation. He accordingly decreed the suit. The learned judge on appeal dismissed the suit on the ground that the Muusif was wrong in giving, the plaintiffs the benefit of presumption when he held that “the oral evidence of possession on both sides was unsatisfactory.” He observed that such a presumption arises only when the evidence of possession on both sides is equally balanced and not “When it is as here equally unworthy of credit except in respect of lands of special character such as waste and jungle lands.” Upon the interpretation put on the judgments of the two courts I came to the conclusion that the finding of the Munsif as to the possession of both sides being unsatisfactory remained undisturbed and was not legally set aside, although the learned Judge used incidentally and indiscriminately the words “useless”, “valueless” and “unworthy of credit”, and accordingly I held that the Munsif was right in raising the presumption in favour of the rightful owner and in holding as a fact that the presumption thus raised gave weight to the positive evidence offered by the plaintiffs, to entitle the court to arrive at a definite finding that the plain tills were in possession of the property as alleged by them, and were dispossessed in Asadh, 1323. I expressed my views in the following words:—

“As to the possession of the plaintiffs, the trial court was justified in raising the presumption in then favour on tee ground that they were the rightful owners of the land and upon the fact that the gave some evidence of possession. The raising of the presumption that possession goes with title is a matter of discretion with the court. It was with the trial court, which had before it the evidence, to say whether in the circumstances of that case and in view of the evidence on the record it was in a position to discriminate and hold, giving the weight of the presumption in favour of the plaintiffs, that they had proved their possession within 12 years of suit. This having been done by the trial court in this come I do not think that it was open to the teamed District Judge to upset that judgment unless be had differed from the Munsif on his finding of fact or bad come to definite finding in favour of the defendants' possession which be has not done in the case.

32. Now the presumption arising from ownership is one of fact and as such can be proved as a fact. The evidence without the presumption might seem to be unsatisfactory, useless or valueless, but having the weight of the presumption it might lead to a certainty in the mind of the court as to the possession being with the rightful owner. I stated also that

“In a suit in ejectment the plaintiff has to prove not only the title but also his possession within years of the suit.”

33. When the plaintiff proved his title the presumption no doubt arose in his favour as to his being in possession of the property on the strength of his title. The plaintiffs admittedly had Pathar-Chapal-bahal land, and the defendants had admittedly no concern with that land. The plaintiffs sold the land to Gobardhan Singh in 1890 and subsequently purchased it in the year 1308 (1901). The Munsif held that they were in possession of the land by virtue of their purchase in 1901. They offered some evidence of possession to prove their subsisting title. It was held that the land in question was not a part of their Pakadia bahal main lands. It was not a case of the plaintiffs giving no evidence of possession. The plaintiffs did adduce evidence which was held to be unsatistactory. It was open to the court to raise the presumption in favour of the plaintiffs in order to weigh their evidence and to judge of the probabilities. There were other facts and circumstances. The undoubted fact that the defendants' lands were all parts and they were not in a position to cultivate their lands, must have weighed considerably in the mind of the Munsif that the defendants were not in possession of the disputed lands also. The contiguous south of their lands belonging to the plaintiffs was cultivated and therefore it was more likely that the plaintiffs must have cultivated the disputed lands, and not the defendants who had allowed their own lands to become danga and parts for want of funds. The settlement made by defendant No. 5 in favour of defendants 1 to 3 in 1303 was an obvious attempt on the part of the defendants, as alleged by the plaintiffs and held by the Munsif, to dispossess the plaintiffs. I, therefore, emphasised in my, judgment that

“It was tot the trial court which had before it the evidence to see whether in the circumstances of the case retailed to above and in view of the evidence on the record it was in a position to discriminate and hold, giving the weight of the presumption in favour of the plaintiffs, that they had proved their possession within 12 years of suit. This having been done by the trial court in this case. I do not think that it was open to the learned District Judge to upset that judgment unless he had differed from the Munsif on his finding of fact or had come to a definite finding in favour of the defendants possession.”

34. Upon the law stated in my judgment I do not think that the reference in question does arise, for nowhere in my judgment did I say in terms of the reference that where the evidence of possession within 12 years of the suit has been found to be equally valueless or unreliable on both sides the plaintiff has satisfied the burden of proof oast upon him of proving his possession within that period by proving merely title and possession at some antecedent period. No doubt I have affirmed the views taken in the cases of Bhuban Mandal v. Jugal Hazra, S.A 728 of 1917, and Bhikhad Bhunjan Narain Tewari v. Upendra Nath Roy decided by Mullick. J. and myself, but the reason for upholding the judgment of the Munsif as against that of the learned judge was that the finding of fact arrived at by the Munsif was supported by the circumstances and evidence upon the record in favour of the plaintiffs being in possession of the property within 12 years and having been forcibly dispossessed as alleged by the plaintiffs in 1323 (1916) just before the suit was instituted.

35. I might have been wrong in interpreting the finding of the learned District Judge and in holding that he did not dispose of the finding of the Munsif based upon the aforesaid facts and circumstances. It was quite open in Letters Patent Appeal from my judgment to sat aside my interpretation of the District Judge's decision and to restore his judgment or to remand the case for a fresh and clear finding. But I doubt whether under Chapter V, rule 2, the question of law enunciated in the order of reference did really arise upon my judgment. Now as the question has been laid before us for consideration and as it is a very important question, I venture to give to own views upon it. In doing so I feel great diffidence inasmuch as I have to differ from the view of my learned colleagues in the Full Bench for whose legal acumen and experience I have the highest regard and reverence. I endorse the view of the law taken by Mullick, J. While he had taken a contrary view in the Calcutta High Court in the case of Lala Singh v. Mir Latif Hossain he subsequently changed his view on a fuller consideration and delivered the judgments in the cases of Bhuhan Mandal v. Jugal Hazra, S.A No. 728 of 1917 and Bhikhad Bhunjan Tewari v. Upendra Nath Roy. I do not know what his opinion would have been after hearing the arguments on both sides and after having been apprised of the views of my learned colleagues of the Full Bench. I miss the opportunity of having his valuable opinion this time as he is not a member of this Bench. I had, therefore, to depend upon my own investigation into this contentious matter.

36. Originally there was no limit of time prescribed within which an action should be brought to enforce one's right. No doubt this was the law with respect to all kinds of properties—movable and immovable—so that a title to immovable property once established could be enforced after any length of time and a person in possession without any title was bound to yield to the claim of the person who had title in him. Latterly, the right of action was limited in duration with a view to obviate the difficulty of proving the existence of a right after a lapse of long time. Jurists of different ages and different countries, therefore, began to prescribe the period within which an action should be brought. This naturally varied with the nature of the right and with the notions obtaining in different countries and amongst different jurists. This is one of the reasons why the law of limitation has been always changing. Title to immovable property was so much respected that it required in the Mitakthara Law a possession for upwards of the 100 years, hereditary and uninterrupted and within the knowledge of the rightful owner, to confer a right upon the adverse party. The right in the possessory holder was in such a case presumed and his possession was deemed to be in conformity with the title though not capable of proof by reason of the lapse of time (Mitakshara, Chapter III, Section 5). In the case of Sayud Ghoolam Raza v. Aja Bhai(17), the Hindu law on the point was summarised in the following words:—

“If the owner of real property, whether land or of other allied nature, ware to bold it for three generations under any deed without claiming it, such property becomes lost to him and ownership accrues to the person in possession.”

The three generations were made definite by fixing a period of 100 years in the Mitakshara. According to the original and correct doctrine of the Hindu Law, enjoyment or possession howsoever long and ancient can never be a cause of ownership. It simply raises a presumption of some title though unproved on account of lapse of time; but it the want of the original title can be fully established, the possessory holder may at any time be divested of the property whether it be land or any other kind of property [vide 3 Colebrooke's Hindu Law, page 443, referred to in Busswell on Limitation]. This was also recognizad in the preamble to Bengal Regulation 2 of 1805.

37. It is thus clear that the ancient law of India respected title vehemently and rigidly. It was only when the owner with full knowledge allowed a stranger to hold possession openly and adversely to him for a considerable length of time—much more than is now prescribed by the Limitation Act—that his remedy to recover the property was barred on the ground of there being a presumption in favour of the possessory holder having derived some title from the rightful owner; but the moment the possessory holder was shown to have a bad title he had no sympathy of the law. To put it still more clearly, long possession was taken as a cure of the defect of title, but a proved unjust title was never recognized. No presumption was available to him who was shown to have no title. Thus the person proving title to the property was entitled to succeed unless and until the possessory holder was able to prove his possession for a long time with the knowledge and in defiance of the rightful owner, and, further, that the title under which he claimed, was not shown to be unjust.

38. When the administration of civil justice was first entrusted to the East India Company and the Courts of Dewani Adalat were established, it was declared in 1772 that both according to the Mohammadan and the Hindu law all claims which had lain dormant for 12 years were invalid. By Regulation 3 of 1793, section 14, the Zila and City Courts in Bengal, Behar and Orissa were prohibited from entertaining the merits of any suit whatever it the cause of action accrued previous to the 12th of August, 1765, or 12 years before the commencement of the suit unless it was proved that the plaintiff was precluded from obtaining redress either from minority or other good and sufficient cause, etc., and by Regulation 7 of 1795, S. 8, this provision was extended be the Province of Banares. Regulation 2 of 1885, S. 3, restricted the limitation of 12 years in cases of immovable property be possession under a just and honest title and allowed a period of 60 years to claims of right to such property if the claimant could show by sufficient proof that the person in possession acquired the same by violence, fraud or any other unjust and dishonest means or that the property claimed had been so acquired by another person through whom the actual occupant derived his title and was not subsequently held for 12 years under a fair title believed to convey a right of possession and property.

39. The law of limitation in the Madras and the Bombay Presidencies was regulated by different regulations and the English Law of Limitation was applied to the Sadar Courts established by Royal Charter in these Presidencies. For the first time therefore an uniform law of limitation was provided for all the courts in British India by Act 14 of 1859. Under Section 12 of the Act a period of 12 years was prescribed for the institution of suits for the recovery of immovable property or any interest in immovable property. The period of 12 years was to be computed from the time the cause of action arose This Act was substituted by Act IX of 1871. For the first time by this Act, suits for possession of immovable property were divided into two parts, namely, Articles 143 and 145 of Schedule II, which were in the following terms:—

143—“For possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed of has discontinued the possession, the period of limitation will be 12 years from the date of the dispossession of discontinuance.”

145—“For possession of immovable property of any interest therein not hereby otherwise specially provided for, the period of limitation will be 12 years from when the possession of the defendant or of some person through whom he claims, became adverse to the plaintiff.”

40. Act XV of 1877 and Act IX of 1908 (the present Limitation Act) made no change in the law but only altered the numbers of the Article to 142 and 144 respectively. The present suit is therefore governed by the present law. But the provisions with respect to limitation for suit for possession of immovable property under the previous Acts and Regulations were quoted at the Bar with a view to understand and appreciate the various authorities upon the subject. Both the aforesaid Articles contemplate a suit for possession. In other words, in suits coming under both these Articles the prayer of the plaintiff must necessarily be for recovery of possession, the defendant being in possession of the property and the plaintiff seeking to eject him. Under both these Articles the title must be with the plaintiff and this he has to prove before his suit can be entertained.

41. Under Article 142 he must have been in possession of the property in accordance with his title and while in possession he is dispossessed or has discontinued the possession. The suit the must be brought within 12 years from the date of dispossession or discontinuance of possession. Under Article 144 the plaintiff need not have been in possession at all from the date that he acquired title. For instance, when he purchases a certain property at an auction sale, from the date of the sale the title to the property vests in him and he has a right to recover possession of the same on the basis of his title though be had never been in possession of the property and hence was never dispossessed. He should then bring his action within 12 years from the time when the possession of the defendant became adverse to him, that is to say, when the defendant is in possession openly and to the knowledge of the plaintiff.

42. In both classes of cases the plaintiff has to prove subsisting title, that is, a title which he has not lot either by his own act or neglect or by the operation of law. The onus in both kinds of suits to establish his subsisting title is upon the plaintiff. When this is established, he is entitled to enforce his title by a decree for recovery of possession by ousting the defendant. In both kinds of suits the defendant can resist the claim after the plaintiff has established his title and subsisting title by showing that he has been in possession of the property for a period of 12 years adversely to the plaintiff and thus has acquired a title in himself by the law of prescription. It does not matter to him whether his possession of the property was unjust or was that of a wrong-doer. But in order to avail himself of this acquisition of title by adverse possession the defendant has to establish open and continuous and oo extensive possession. In other words, he must show that he was in possession of the property for a continuous period of 12 years without any break, that he was in possession of all the lands in question, for be being a trespasser can have no presumption in his favour of being in possession when the land is vacant or is in nobody's possession or is abandoned: [vide Trutees, Executors and Agency Company Limited and Templeton v. Short(18)]. Such a presumption arises only in favour of the rightful owner. The acquisition of title by adverse possession in favour of a the passer arises by statutory provision under Section 28 of the Limitation Act and not on any principle of here justice end equity.

43. In this respect the present law of limitation has engrafted an important change on the ancient law of India by enabling a trespasser to acquire title by more possession for 12 years as against the rightful owner on account of the neglect of the latter to bring a suit within the said period from the data of the acquisition of his title under Article 144 or from the date of his dispossession or discontinuance of possession under Article 142. The presumption from bare possession in favour of a title undisclosed or unproved only arises when the title in any body else is not proved and the possessory holder is therefore presumed to have derived his possession from some one having title though not distinctly proved in the case. The presumption that possession is with the rightful owner always arises in his favour when his tills is proved. Possession follows title and hence the rightful owner will be deemed to be in possession of the property whether he actually does exercise the right of possession or not, and whether the land is vacant or fallow or is incapable of possession by reason of its having been covered by jungle or being under water or on account of want of inclination or ability to exercise acts of possession for sometime. Consequently it is a settled principle that there will not be deemed to be any break in the possession of the rightful owner unless and until it is shown that somebody else has actually entered into possession of the property. The man coming into such a possession is in the best position to prove as to when he actually came into possession and the nature thereof, namely that he was in possession openly and defiantly and with the knowledge of the rightful owner. Therefore to my mind in cases coming under either of the Articles 142 and 144, the onus of proving possession must necessarily be upon the person who claims to be in possession without any title for the statutory period of 12 years. When the rightful owner proves his title and also proves to have got possession on the basis of title at some anterior time (a case coming under Article 142), he must be presumed to have continued to be in possession and his mere ceasing to exercise acts of possession will not cause any dispossession or discontinuance of possession. Similarly, where the plaintiff has acquired title but has never exercised acts of possession, he will be deemed to be in possession of the property in accordance with his title (a case coming under Article 144) In both these cases, the defendant can only defeat the plaintiff's claim to recover possession by showing that he was in adverse possession for over 12 years. The present law has mitigated the rigidity of the former law, as will be shown hereafter, which threw greater onus upon the plaintiff to prove not only his title but also his possession within 12 years from the time that “the cause of action arose to him”. The distinction between the former and the present law has not always been kept in view and this has caused so much divergence of Judicial opinion.

44. With these remarks I will now examine the authorities in the case. I have been through all the cases cited on behalf of the parties and I must say, what has so often been said, that each case was decided upon its own facts. The presumption of possession in favour of the plaintiff was in the circumstances of the particular case sometimes allowed and sometimes disallowed.

45. The first case referred to is of the year 1860: Maharaj Koower Bobu Nitrasur Singh v. Babu Nandlal Singh. That case was instituted in the year 1845 and the question of limitation was decided under section 16, Regulation 3 of 1793, which was then in force and, as observed above, under which the cause of action for a suit for possession must have arisen within 12 years before the institution of the suit. The plaintiff admittedly was not in such a possession for 11 years and there were previous litigations as to possession between the parties in which the boundaries between the two disputed Mouzas were settled in 1816 by decrees of courts and there was also subsequent litigation up to 1834–1835. The important words of their Lordships are at pass 220 where it is said that “the appellant in seeking to disturb the possession, admitted to have existed for about eleven years, of defendants, who insist on a possession of much longer duration as a statutory bar to the suit. It clearly lies on him to remove that bar by satisfactory proof that the cause of action accrued to him on a dispossession within 12 years next before the commencement of the suit.” In such circumstances it was held that the issue of possession was the first to be considered (vide also the headnote) and that “no proof of anterior title such as would be involved, in the decision of the boundary in question in his favour, can relieve him from this burden or shift upon his adversaries by compelling them to prove the time and the manner of dispossession.” At page 223 their Lordships observed that “the balance of probabilities is decidedly against him (the plaintiff).” On a consideration of the probabilities and upon evidence, their Lordships affirmed the decision of the Sadar Dewani Adalat that the plaintiff was not in possession within 12 years and that the defendants were in possession. In the present case also upon the probabilities of the contiguous boundary land of the defendants being danaa parti on account of their property and upon the evidence in the case, the Munsif accepted the evidence of the plaintiffs that they ware in possession. This ruling, therefore, does not help the defendants.

46. The next case is of the year 1869: Sajah Sahib Perhlad Sein v. Maharajah Rajendra Kishore Singh. The other cases trier analogously in the Privy Council were disposed of in the preceding pages and we have nothing to do with them. The case with which we are concerned is report at page 334. In that case the plaintiff brought a suit for recovery of certain property said to be within the boundary a his Zamindary. “The cause of action was said to have arisen on the 20th of March, 1851, from his dispossession. The suit was brought 10 years alter the 31st of December, 1861. There was also a Thakbust Survey decision of 11th February, 1848. The defendant ??? that the suit was barred by three years' limntation from 1848, the date of the Thakbust decision, and 12 years' limitation inasmuch as the defendant was out of possession for more than 12 years. The principal Sadar Ameen dismissed the suit holding that the suit was barred by the special and the general law of limitation. The High Court doubted as to the former but confirmed the decision on the general law of limitation. Their Lordships of the Privy Council thought the special law of limitation also applied but rested their decision upon the general law of limitation. It was held that the Magistrate's order of March, 1851, which was relied upon by the plaintiff as having caused his dispossession, had not that effect and that it proved that the plaintiff was out of possession since the date of the Thakbust decision of the 11th February, 1848, that is, more than 12 years before the institution of the suit on the 31st December. In the circumstances of that case no doubt the plaintiff has to establish clearly his dispossession within 12 years and be having tailed to do so the suit was dismissed. The case was decided when Act VIII of 1859 was in force. Under Section 12 of that Act, the suit was to be brought within 12 years “from the title the cause of action arose,” as in the Regulation of 1793.

47. The next case is of the year 1870: Beer Chunder Jobraj v. The Deputy Collector of Bhullocah. Here also the Government defendant was admittedly in possession since 1845. There was also proof of Government being in possession in 1811 and 1824. The circumstances of that case are similar to those of the preceding cases and the ??? was under Act VIII of 1859.

48. In the year 1873, in the case of Runjeet Ram Panaay v. Goburdhan Ram Panday, after discussing the evidence on both sides their Lordships observed as follows:—“In the midst, therefore, of his ??? evidence, their Lordships ??? it right to consider whether there is any presumption to be derived from the ??? parts of the case in favour of the one ??? or the other. Now the ordinary preemption would be that possession went with the title. The presumption cannot of curse be of any avail in the presence of clear evidence to the ocntracy: but, where there is strong evidence of possession, as there is here, on the part of the respondents—opposed by evidence, apparently strong also on the part of the appellant—their Lordships think that, in estimating the weight due to the evidence on both sides, the presumption may, under the peculiar circumstances of this case, be regarded; and that, with the aid of it, there is a stronger probability that the respondents' case, is true than that of the appellant.” Although the decision is dated the 2nd April, 1873, but, as observed by Lord Macnaghten in the case of Raj Kumar Ray v. Gobind Chandra Ray, the case “falls under the Limitation Act passed in 1859” when the plaintiffs [as pointed out in Karan Singh v. Bakar Ali Khan(19)] was subject no a burden of proof heavier than that established by the Limitation Acts of 1871 and 1877. In that case no doubt the evidence was equally strong on both sides and the ordinary presumption of possession following title was applied in support of the probability of the evidence of possession being in favour of the rightful owner. It also laid down that in case of conflicting evidence it is right to consider whether any presumption can be derived from other parts of the case in favour of the one side or the other. In the present case the probability of the piece of land being cultivated by the plaintiff was much more in has favour than that of the defendants as held by the Munsif inasmuch as the defendants were unable to cultivate their own lands lying to the north contigu us to the plaintiffs' land. The oral evidence was no doubt ??? and held to be valuelass on both sides by the learned judge, but the probability of the plaintiffs' possession was proved by the circumstance stated above and clearly set forth in the Munsin's judgment. The principle of this authority will, therefore, apply to the present case.

49. In the year 1838, In the case of Mohima Chunder Mozumdar v. Mohesh Chunder Neoght, the finding of the High Court was that the plaintiffs failed to prove that they were in possession of the land in suit and dismissed ??? suit. In coming to this conclusion the High Court remarked that the plaintiffs were declared to be in possession of an insignificant portion of the land by the Magistrate under Section 530 of the then Cr PC within 12 years of suit, but there was no evidence to show where those 10 or 15 ??? of land were situate and therefore the entire suit was barred by limitation. The argument was that upon the finding that the appellants had possession of a part of the disputed land the presumption should have been that they continued to be in possession of the entire land and that the suit should not have been dismissed. Their Lordships of the Judicial Committee held that the High Court was wrong in holding that according to the criminal courts judgment the plaintiffs were in possession of any of the land. Thus the foundation of the plaintiffs' contention failed. In the circumstances of that case their Lordships held that in a suit in ejectment where the defendants had been in possession admittedly tr a great number of years and under a claim of title, it lies upon the plaintiff to prove his own title. The plaintiff must recover by the strength of his own title……………In this case the onus is thrown upon the plaintiffs to prove their possession prior to the time when they were admittedly dispossessed and at some time within 12 years before the commencement of the suit, namely, for two or three years prior to the year 1814 or 1875; that it does not lie upon the defendant to show that in fact the plaintiffs were so dispossessed”.

50. The principle that when once the rightful owner proves dispossession the presumption of continuity of possession arises in his favour, was applied in the Full Bench case of Mohammed Wali Khan v. Khwaja Mohammad Abaul Ghani. That presumption without any doubt arises with respect to uncultivated lands or jungle which do not admit of usual modes of possession but there is no reason why the presumption cannot be applied to the case of cultivated lands where the plaintiff proves not only title but also his possession prior to 12 years before the suit and there is no proof of anybody else having cultivated the lands after that except on the admitted date of dispossession which in the present case happens to be just in the season prior to the institution of the suit. Of course this cannot arise when there is no evidence of possession and no other circumstance giving rise to the probability in favour of the plaintiffs' case, but whereas in the present case there is evidence, though not in itself satisfactory or reliable, and there is also strong circumstance in favour of the plaintiffs' possession, their is no reason why the principle of continuity of possession based upon title should not be raised in the plaintiffs' favour. The Full Bench further decided that “each case must be decided upon its own merits.”

51. In the year 1885, in the case of Dharm Singh v. Har Prasad Singh, following the Privy Council case of Runjeet Ram Panday v. Goburdhan Ram Panday it was held that when there is evidence of possession on both sides the court can rightly accept the plaintiff's evidence which accords with his title. In that case the District Judge in appeal held that the plaintiffs had proved their title and that the oral evidence was mostly hearsay and inadmissible as legal evidence but when coupled with the title of the plaintiff the evidence of possession on his side was of the whole reliable and that therefore the plaintiffs “made out a prima facie case of possession within 12 years, which it lay of the defendant to rebut.” The High Court in upholding this judgment held that then was evidence of possession on both sides and therefore the court below was right in preferring the evidence given by the plaintiffs because it accorded with the title which was found to be in the plaintiffs. The facts and the circumstances of that case and the findings of the court exactly agree with those in the present case and do not see any reason why the plaintiff should not be held to have made out prima faae case of possession within 19 years when they gave oral evidence although their evidence as well as that ??? the defendants was held by the lower appellate Court to be unsatisfactory am unreliable. In fact, the District and referred to the evidence, and the reason given for his decision, that it was worth less or useless, was due to the fact the witnesses were not of the village it question where the land is situate. It the case of Raj Kumar Roy v. Gobind Chunder Roy, the principle of continuity of possession was applied in the case of the plaintiff who had title in the land and proved possession at one time. ??? doubt, that was a case of a bheet land and there was difficulty in the proof of actual possession but the principle applies to all kinds of lands. Their Lordships observed that the law of limitation in the year 1859 subjected a heavier burden of proof then that established by the Limitation Acts of 1871 and 1877.

52. In the year 1899, in the case of Thakur Singh v. Bhogeraj Singh, Stevens, J., remarked that the presumption can be given where the evidence of possession is strong on both sides and apparently equally balanced and not where the evidence on both sides is equity unworthy of reliance; but the case was decided in favour of the plaintiff as the land was parti or jungle and there is no justification for such a wide and general proposition. In the year 1904, in the case of Babu Kusturi Singh v. Rajkumar Babu Bissun Progas Narain Singh, Bodlly and Mookerjee, JJ. observed that under the Privy Council case of Runjeet Ram Punday v. Goburdhun Ram Panday, the presumption that possession follows title may be applied where the evidence on both sides is conflicting, but the presumption might not be applicable if the evidence on both sides is unsatisiactcry. Vide also the case of Mirza Shamsher Bahadur v. Munshi Kunj Behari Lal, where Mookerjee and Caspersz, JJ., said that the presumption would arise in favour of the plaintiff when the evidence is satisfactory on both sides. The word “unsatisfactory” used in the judgment may possibly be a slip.

53. In the year 1920, in the case of Madan Mohan Singh v. Brij Behara Lal, the plaintiffs were found to be out of possession for 12 years and the defendants were found not to be in possession for 12 years. The Article applicable was 142 as the plaintiffs alleged possession and dispossession and their suit was for ejectment. The defendants ware admittedly in possession at the time of the suit. The plaintiffs were hold entitled to succeed even when they were found to be opt of possession for 12 years because the defendants were not bald to be in possession for 12 years. It the principle of this decision be applied to the present case the evidence offered by the plaintiff is unreliable as to possession within 12 years. The defendants tailed to prove possession for 12 years. They ware admittedly in possession on the alleged date of dispossession in the plaint. Applying the principle of the aforesaid decision, the plaintiffs must succeed and I do not know how to differentiate that case from the present one. Mr. Justice Das in delivering the judgment in the case referred to the cases of Mc Donnell v. Mc Kinty(20), Smith v. Lloyd(21), Trustees, Executors and Agency Company Limited and Templeton v. Short, and Secretary of State for India v. Krishnamoni Gupta(22). From these cases he deduced the principle that “the owner must be considered in point of law as always in possession as long as there is no intrusion”. I fully agree with this view. This evidently throws the onus upon the defendant in a case under Article 142 after the plaintiff proves his title and possession on the basis of that title though it may be prior to 12 years before the suit.

54. In the year 1880, in the case of Radha Gobind Roy v. Inglis in a case relating to possession of a certain quantity of land appertaining to a Mouza called Zulkur Khulul Shajai, their Lordships held that where “the plaintiff has proved his title the defendant must prove that the plaintiff lost it by reason of his (the defendant's) adverse possession”. That case is sought to be distinguished on the ground that the land came out of water within less than 12 years before the institution of the suit, but their Lordships intended to lay down a general principle. In the year 1902, in the case of Secretary of State for India v. Krishnamoni Gupta their Lordships held that submerged land becomes derelict and no title therein can be acquired against the true owner, and that it will be contrary to principle and authority to imply the constructive possession of the trespasser whilst his lands were submerged so as to enable the wrong-doer to obtain a title by adverse possession. In order to obtain such a title under the Limitation Act there must be actual possession of a person claiming as of right by himself or by persons deriving from him.

55. In the year 1916, in the case of Secretary of State for India v. Chelikani Rama Rao(23), the Secretary of State was the plaintiff. The defendants were the zamindars and were in possession, for over 20 years, of a certain island which came out of Godavary, a tidal and navigable river. The title was with the plaintiff. The High Court of Madras, disagreeing with the District Judge, held that in the case of land “which came into existence as land capable of occupation more than 60 years prior to the notification, the Crown must show by evidence that it bad a subsisting title at some time earlier than that period”, and the case was remanded for that purpose. Their Lordships of the Judicial Committee upset the decision of the High Court holding that the aforesaid view of the law expressed by the High Court was erroneous. Their Lordships observed nothing is better settled than that the onus of establishing property by means of possession for a certain requisite period lies upon the person asserting such possession. It is too late in the day to suggest a contrary of this proposition. It were not correct it would be open to the possessor for a year or day to say I am here, be your title to the property ever so good, yon cannot turn me out until you have demonstrated that the possession of myself and my predecessors was not long enough to fulfil all the legal conditions……………it would be contrary to all legal principles thus to permit a squatter to put the owner of the fundamental right to a negative proof upon the point of possession.” Their Lordships relied upon the case of Radha Gobind Roy Saheb v. Inglis and Secretary of State for India v. Vira Rayan(24). As to subsisting title their Lordships observed that the title of the Crown to the is land was fundamental and until adverse possession against the Crown was complete the fundamental fact remains and that fact forms a subsisting title and that it is no part of the obligation of the Grown to fortify their own fundamental right by any inquiry into possession or the acceptance of any onus on that subject. This authority is conclusive upon the meaning of what subsisting title means. It is proved that the title is not in any way transferred or extinguished or lost by adverse possession in favour of a stranger, the title is subsisting.

56. This case is sought to be distinguished on two grounds: First that the land was an island formed out of the tidal and navigable river belonging to Government and the principle of the decision of the owner continuing so long as the land is under water will apply; but this is not the principle upon which the decision has been based. The point related to land which had come out 60 years before the institution of the suit. Secondly, it is said that the case was decided under Article 144 of the Limitation Act, inasmuch as although the Government had title it had not ever come into possession and there was no question of possession and dispossession. I do not think this interpretation is sound. The fact that the rightful owner gets possession and is dispossessed cannot possibly make his position worse than that when he had not got possession at all.

57. In the year 1882, in the case of Karan Singh v. Baker Ali Khan, their Lordships of the Judicial Committee overruled the contention that the plaintiff must prove that he was in possession within the period of 12 years, on the ground that the contention was not tenable under “the present law of limitation”, though “it would have been correct under the old law under which the suit must have been brought within 12 years from the date of the cause of action, but under the present law it may be brought within 12 years from the time when the possession of the defendant or some person through whom be claims becomes adverse to the plaintiff.” In that case the plaintiff was in possession but became out of possession since 1863. The suit was brought in the year 1874. The onus was laid upon the defendant to prove that he was in possession for 12 years. This decision modifies, therefore, considerably the effect of the decision reported in Mohima Chander v. Mohesh Chander, and the other authorities based upon that decision which were good under the old law of limitation.

58. In the year 1917 in the case of Midnapur Zamindary Co., Ltd. v. Panday Sardar(25) Mullick, J., followed the decision in the case of Secretary of State for India v. Chelihani Rama Rao, modified his earlier decision in the Calcutta High Court and held that the plaintiff having title must recover possession unless it is proved that the defendant has acquired title by adverse possession by holding for 12 years irrespective of whether Articles 142 or 144 applied. In the year 1914 in the case of Brij Raij Singh v. Ganga Baksh Singh(26), the maxim there enunciated is that where possession in fact is ??? possession in law follows the right to possess. In other words possession follows title. So far as it is applicable to land under water, his paint is simple and the principle is applied to such a case even where the trespasser is shown to be in possession before and after the submersion of the land. In the year 1889, in the case of Mohammad Amanullah Khan v. Badar Singh(27) the plaintiff was dispossessed in the year 1843 by virtue of regular settlement more than 12 years prior to the institution of the suit and it was, therefore, incumbent upon him to establish his subsisting title by showing that he came into possession subsequent to 1843, that is, within 12 years of the suit. That case was decided upon its own merits and is dissimilar to the facts of the present case where no dispossession has occurred at any time before 12 years of the commencement of the suit.

59. In the year 1899, in the case of Innasimuttu Udayan v. Upakarath Udavan(28), the defendant was in admitted possession for 7 years before the suit. He had documentary evidence showing that he had been in possession for more than 5 years immediately before the 7 years which were held to be of reliable character. It was held that the burden of rebutting the evidence of possession in favour of the defendant for over 12 years was not discharged by the plaintiff. In that ruling it was clearly held “that the burden of proving possession for 12 years before the 2nd of November, 1892 (the date of the suit), which originally tested on the appellant was amply sustained by him and that the Subordinate Judge was right in upholding the possession of the appellant for the period of limitation. The appeal was, therefore, allowed and the suit was dismissed”. This view finds support from the decision of their Lordships of the Judicial Committee in the year 1906 in the case of Rani Hemanta Kumari Devi v. Maharaja Jagadindra Nath Roy Bahadur(29), where, upon the evidence, their Lordships held that although the plaintiff was admittedly out of possession for a period of 11 years and the defendant alleged possession for over 12 years and longer, and the period of limitation being so narrow the question of onus was important and, therefore, the onus was upon the plaintiff to prove that he was it possession within that one year, that, within the 12 years of the suit, at the same time their Lordships held that on the question of evidence the initial fact of the appellant's title comes to her aid with greater or lesser force according to the circumstances established in evidence. This was taken to be a question of fact and the view of the trial court was accepted as of greater value than that of the High Court and it was held that the trial court was right in holding that the plaintiff was in possession and was dispossessed at the time alleged by him. This circumstance, it was held, the High Court ought to have taken into consideration and it was held that from the date of the title of the plaintiff which accrued in 1859, she must be held to have possessed the disputed land downwards until the date of dispossession. In the present case the circumstance set forth in the Munsif's judgment, who heard the witnesses, was not taken into consideration by the District Judge and particularly the fact that the defendant's land contiguous was left danga or parti on account of their inability to cultivate it. I, therefore, hold that the finding of fact of the Munsif was not upset and upon that finding the only construction possible was that the plaintiffs were in possession until they were dispossessed as alleged by him.

60. In the year 1917, the case of Basanta Kumar Roy v. Secretary of State(30), dealt with Chur land and land which came out after diluviation and it was held that during that period the owner was not dispossessed or ceased to be in possession and constructively it continues until be is dispossessed and upon the commission of the dispossession before the statutory period of limitation has elapsed, constructively it survives. The scope of Article 142 was defined but the facts of the case actually do not help us in the present case. In the case of Re Trustees, Executors and Agency Co. Ltd., and Templeton v. Short, Lord Macnaghten quoted with approval the words of Parks, B., in the case of Smith v. Lloyd.

“We are clearly of opinion that the statute applies not to want of actual possession by the plaintiff but to cases where he has been out of, and another in, possession far the prescribed time. There must be both absence of possession by the person who has the right, and actual possession by another, whether adverse possession to be protested or not, to bring the case within the statute.”

61. Thus, it the title of the plaintiff is proved and his possession also at one time, and the defendant fails to prove adverse possession for the statutory period, beyond what the plaintiff admits, the land must be held to be in the possession of the rightful owner, the plaintiff. It is thus clear that there has been only in apparent conflict of decisions upon the question now under consideration. Some of the decisions are due to the unconscious adherence to the former law, the change in the new law having been lost sight of. The analysis of the decision of their Lordships of the Privy Council leaves no manner of doubt as expressly observed by their Lordships in the case of Raj Kumar Rai v. Gobind Chandra Rai, and Karan Singh v. Bakar Ali Khan that the law at limitation under the old Regulations and acts prior to 1871 was more stringent in requiring the plaintiff in a suit for possession to prove not only that he has title to the land but also that he was in possession within 12 years before the time “the cause of action arose” This was so whether the plaintiff sued merely noon his title or upon his allegation of possession and subsequent possession. The farmer law was split up Into two classes of cases in Articles 143 and 145 in 1871 and Articles 142 and 144 in 1877 and 1908. The plaintiff under the present provisions after proving his subsisting title throws the onus upon the defendant to prove continuous possession for 12 years prior to the institution of the suit.

62. No doubt the plaint ff under both the Articles, as observed above, has in the first Instance to prove his title and a subsisting title. In a case under Article 142 he must prove title and possession to show that his title subsisted, and under Article 144 he must prove his title where he was never in possession at all. In the former case the defendant succeeds by merely showing that he had dispossessed the plaintiff for over 12 years and not as alleged by the plaintiff within 12 years. In the latter case the defendant has to show not merely that he was in possession but that he was in possession adversely to the plaintiff that is openly and continuously and within the knowledge of the plaintiff for a period of 12 years. The defendant will count is his favour only the period from the time that his possession became adverse although he may have been in possession even previously either with the permission of the plaintiff or without his knowledge. In a case under Article 142 he has not to show that he was in adverse possession but he has only to show that the plaintiff ceased to be in possession and be entered into possession or that be actually dispossessed the plaintiff and has been in possession for 12 years before the suit. This appears to me to be the real distinction between the two Articles. Under Article 142 if there is no evidence of possession on either side and the land is fit for cultivation or ??? of user in the ordinary way, the plaintiff must fail. If there is evidence on both sides equally balanced or satis factory, the presumption of possession following title may give rise to the probability of the plaintiff being in possession and the court may decide the suit in his favour if there is conflict of oral evidence on both sides, or if the oral evidence is apparently unsatisfactory or unreliable on both sides the court may take into consideration other circumstances in the case to sen where the probability of the case lay. The title to the property in dispute is a circumstance which may induce the court to accept the evidence which otherwise standing alone would seem to be unreliable. The other evidence and circumstances in the case may also be looked into in judging of the oral evidence of the nature referred to above.

63. Applying the aforesaid test to the present case as observed above, the plaintiffs in the present case proved that the defendants had no means of cultivating the lands so much so that the contiguous land lying to the north called Pakadia Bahal main land to which the small bit of land is said to appertain, was left by them become fallow on account of their poverty and that the lands of the plaintiffs to the south called Pathar Chapar Bahal lend to which it has been proved that the bit of land appertains was all cultivated by the plaintiffs. The probability, therefore, was in favour of the plaintiffs having activated this bit of the land on the north side of their admitted big plot. Therefore, although the oral evidence was not satisfactory according to the Munsif and valueless or unreliable according to the learned District Judge, the Munsif was right in consider in the circumstance referred to above coupled with the title in favour of the plaintiffs as giving rise to the probability of the plaintiffs' case being true that they were in possession all along and were dispossessed forcibly in 1916 on account of the new lands given by the Raja of Jherria in favour of defendant No. 5 and their having sub-let it to defendants 1 to 3, their bhagidars, for the purpose of forcibly dispossessing the defendants. This is clear from the following finding of the Munsif that. “It appears to me that it was to make up the loss that the defendant No. 5 Banamali Sarkar, lessee of main land, has set up the bhagidars, defendants 1 to 3, to get hold of the plaintiff's land”. The finding is in accordance with the allegation of the plaintiff that he was dispossessed by the defendants Nos. 1 to 3 on the strength of their bhagidari settlement from defendant No. 5. Therefore, according to the finding of the Munsif, the plaintiff's allegation of dispossession in 1916 was proved. Therefore, he was in possession up to that date.

64. There is, therefore, a substantial finding of possession and dispossession as alleged by the plaintiffs in the plaint. The defendants, therefore, tailed to prove that they were in possession anterior to the time the plaintiff alleged that they dispossessed him which allegation was upheld by the Munsif. Unless the finding of the Munsif was clearly set a side the District Judge was not competent to hold that in law the plaintiff could not succeed. The question of law did not arise upon the findings of the Munsif and the District Judge, and if it did arise, in my opinion, the view of the law taken by the District Judge was wrong. I would accordingly affirm the view already taken by me and would decree the plaintiffs' suit in terms of the decree granted by the Munsif.

65. As to the point of law referred to us, I have already shown that since the present law of limitation was enacted in 1871, which purports to do away with the rigidity of the onus of proof which was oast upon the plaintiff under the former law to prove his possession within 12 years of the suit after he had established his title to the property, the tendency of the decisions of the Privy Council has been to throw the onus upon the defendant to prove his 12 years' continuous possession in order to defeat the claim of the rightful owner. This view was expressed in the case of Ranjeet Ram Pandey v. Gobardhan Ram Pandey though in a limited sense, inasmuch as the evidence of possession in that case on both sides was equally strong. This was the case decided under the old law but has been taken to be the leading case upon the subject in some of the authorities. The leading case, however, on the subject is the case of Radha Gobind Rai v. Inglis decided under the new law in 1880. Their Lordships of the Judicial Committee in unequivocal terms gave expression to the law in the present Limitation Act in holding that “where the plaintiff has proved his title the defendant must prove that the plaintiff lost it by reason of his (the defendant's) adverse possession”. This case struck the key-note upon the subject and since than has been followed in all the subsequent cases in the Privy Council [vide Raj Kumar Rai v. Gobind Chandra Rai, Secretary of State v. Chelikani Rama Rao, and Karan Singh v. Bakar Ali Khm].

66. The tendency, therefore, of the present law has been to restore the ancient view on the subject namely a person proving title to the property in dispute is entitled to succeed and to recover possession of it unless and until the possessory holder is able to prove an adverse possession for the statutory period. “A man in possession” says Bramwell, L.J “has a right to call upon a plaintiff in ejectment to prove his title. It the plaintiff does prove a prima facie title, then the man in possession must prove his. The rule is the same in respect of chattels. The plaintiff must show a title to the chattels before he can call upon the defendant to prove his title. If, however, the person in possession of either the land or the chattel does not any by his pleading the title of his adversary. It seems to be just that in order, to succeed he should be compelled to show a title existing in himself” [Donford v. Mc Anulty (31)]. Thus after the title of the plaintiff is established and the defendant fails to prove his, the plaintiff must succeed unless the defendant proves an adverse possession for the statutory period of 12 years. It does not matter whether the case comes under Article 142 or 144 of the Limitation Act. Therefore, if the evidence of possession on both sides is valueless or unreliable, the plaintiff having title in him must oust the defendant, who is in possession without any title.

67. I would according answer the point of law referred to us in the affirmative.

68. Das, J.:— I entirely agree with my Lord the Chief Justice.

69. Adami, J.:— I agree with the opinion expressed by the learned Chief Justice in the order of reference and in his judgment.

70. Bucknill, J.:— The facts were apparently very simple. The plaintiffs in 1901 bought some arable land from one Gobardhan Singh by registered kabala, dated 20th Phagun, 1308. They allege that they were in possession of the land until 1916, when the defendants dispossessed them from a portion of it. The plaintiffs in 1916 brought a suit against the defendants for recovery of possession of the land from which they had ben, as alleged, dispossessed by the defendants.

71. The defendants denied the plaintiffs' title contending that the land belonged to the 4th defendant, the Raja of Jharia. It was found on the evidence and on a local inspection by the Munsif that the land in dispute did in fact fall within the confines of the property purchased by the plaintiffs and this finding was not disturbed on appeal by the District Judge and there the matter really ended for the plaintiffs produced no evidence of any value to show that they were even in possession nor, though their possession in 1916 was admitted, did the defendants adduce any evidence of any value as to how long they and been in possession. Of the oral evidence such as it was the Munsif says: “The defendants' evidence is very meagre” and “Evidence of possession on the plaintiffs' side is not satisfactory” and finally “Both sides,” evidence is unsatisfactory. The District Judge is even more emphatic. He states—

“The plaintiffs' evidence is useless. The evidence for the defence is equally ???”

72. In endeavouring to apply the law to this state of facts the Munsif considered that there exited a benefit of presumption in favour of the plaintiffs that possession follow title and that the onus was upon the defendants to prove that they dispossessed the plaintiffs more than 12 years prior to the institution of the proceedings; that as the defendant bad failed to discharge this onus the plaintiffs should succeed. The Munsif added that as the defendants did not admit that they had dispossessed the plaintiffs at any time no question of adverse possession arose. The District Judge however took a different view being of the opinion that the benefit of presumption that possession follows title only arises in favour of a plaintiff where the evidence of the possession on both sides is equally balanced and not a in this case, equally unworthy of credit; subject, however, to cases in which are concerned lands of ??? character such as waste or jungle. He, therefore, allowed the appeal.

73. I apprehend that the correct law to be applied to the facts of this case is contained in the following principles. A plaintiff such a defendant for recovery of possession of arable land of which he alleges that he (the plaintiff) has been dispossessed by the defendant; the frame of such a suit contains a specific admission that the defendant was prior to the institution of the suit in possession of the land. Now under Article 142 of the Indian Limitation Act, 1908, the plaintiff's suit would be barred if he did not Institute it within 12 years of the date of his dispossession; his cause of action only arises out of the fact of dispossession; and consequently it has been repeatedly held that in such class of suits it is not sufficient to enable the plaintiff to succeed for him merely to prove that at some data antecedent to a period of 12 years prior to the Institution of the suit he had acquired some paper title to the land but that he must also prove that he was in possession within that period. This principle has been explained and elaborated in numerous cases and in several directions. It has, for example, been held that where land is of such a character (e.g, jungle, waste land or land under water) that proof of any act of possession is substantially impracticable, the presumption in favour of the plaintiff that possession follows title may be regarded as sufficient to establish prima facie the plaintiff's claim and to shits the onus upon the defendant of proving the contrary [Mahomed Ali Khan v. Khaja Abdul Gunny]

74. Again is has been ??? on good authority that a similar position ??? if the evidence on behalf of the plaintiff and on behalf of the defendant as to the former's possession at any time during the during the ??? period is strong and evenly balanced [Maharaja Koowar Babu, Nitrasur Singh v. Babu Nand Lall Singh and Lala Singh v. Mir Latif Hussain]. Where, however, there is no evidence or no evidence of any value on behalf of the plaintiff as to his possession at any time during the crucial period, the plaintiff's case simply fails. [Fakira Lal Sahu…Plaintiff v. Ram Charan Lal…Defendant .]. It does not matter if the defendant's evidence is weak or indeed if he offers no evidence at all.

75. The last proposition appears to me to govern the present case. Here the plaintiff only proved that he had more then 12 years prior to the institution of the suit bought the property from a person not a party to the suit. The property was cultivable land and the defendant's possession of it prior to the data of suit was admitted. The plaintiff failed to prove his possession at any time within 12 years prior to the institution of the suit and thus did not make out a prime facie case or shift the onus upon the defendant. The defendant might safely have adduced no evidence at all but if be did, then, so long as it did not prove the plaintiff's case (and it did not do so here) it could not by its intrinsic weakness strengthen the plaintiff's case.

76. I, therefore, agree with my Lord the Chief Justice that the answer to both the questions referred to this Bench is in the negative.

77. Reference answered to negative.