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  • article 144 of the Limitation Act
  • article 142 of the Limitation Act
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  • article 144 of the Limitation Act
  • article 142 of the Limitation Act
Smart Summary

Factual and Procedural Background

The plaintiff is the zamindar of the village and his title had been established in both courts below. He alleged that the defendant was placed in possession by his leave and licence for certain purposes. The defendant denied that any licence existed in his written statement and counter-pleaded an adverse title (adverse possession). Counsel for the defendant argued that it was not proved that the licence was ever granted or revoked. The lower appellate court, while holding that the plaintiff had shown title, nevertheless gave judgment for the defendant based on a legal view that the plaintiff must prove a subsisting title (possession within twelve years) under the Limitation Act as interpreted in Inayat Husen v. Ali Husen. The present appeal was brought against that decision.

Legal Issues Presented

  1. What is the burden of proof in a suit for possession when the defendant pleads twelve years' adverse possession—does the plaintiff (owner) have to prove a subsisting title/possession within twelve years where the suit is one covered by article 144 of the Limitation Act?
  2. Can a defendant, having repudiated a licence and asserted adverse possession, continue to rely upon the earlier licence as a defence?
  3. Whether the decision in Inayat Husen v. Ali Husen (and similar Madras decisions) correctly states the law, or whether it has been overruled by the Privy Council decision in Secretary of State for India v. Chellikani Rama Rao.

Arguments of the Parties

Plaintiff / Appellant

  • The plaintiff asserted he is the zamindar and that his title had been established in both courts below.
  • The plaintiff's case was founded on the allegation that the defendant had originally been put into possession by leave and licence.

Defendant / Respondent

  • The defendant denied that any licence had been granted (or that revocation had been proved) in his written statement and set up an adverse title (twelve years' adverse possession).
  • Defendant's counsel (Mr. Baldeo Ram) argued that it was not proved that the licence was ever granted or revoked.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Inayat Husen v. Ali Husen Held that in a suit governed by article 144 of the Limitation Act the plaintiff must show a "subsisting title" (possession within limitation); the burden was placed on the plaintiff to lay the foundation of his case by proving possession within limitation. The court held that this decision is not the correct law for the province and has been effectively overruled by the Privy Council decision in Secretary of State v. Chellikani Rama Rao; because the lower appellate court held itself bound by Inayat Husen, its decision was reversed.
Secretary of State for India v. Chellikani Rama Rao Privy Council decision overruling the Madras High Court's contrary view; declares that the onus of establishing title by possession lies on the person asserting possession and that it is erroneous to require the plaintiff (owner) to negative the possessor's claim to be in possession for the requisite period. The court treated this Privy Council decision as binding and decisive. It relied on this authority to reject the proposition that plaintiffs in suits under article 144 must prove a subsisting title, and used it as the principal basis for reversing the lower appellate court.
Parmanand Misir v. Sahib Ali Three-Judge Bench decision distinguishing the onus of proof between suits under article 142 (dispossession actions) and defences of twelve years' adverse possession; where title is in issue the plaintiff must make out at least prima facie evidence before the defendant is put to proof of his defence. Quoted to support the proposition that a distinction exists between article 142 cases (where plaintiff must show possession within limitation when alleging dispossession) and article 144 cases (where plaintiff stands on title and the possessor bears burden to prove adverse possession).
Jafar Husain v. Mashuq Ali Reiterated that in suits where the plaintiff alleges dispossession (article 142), the plaintiff must give prima facie evidence that he was in possession within twelve years before defendant must be called upon to prove adverse possession. Used by the court to further explain and confirm the distinction between article 142 (dispossession suits) and article 144 (title suits), and to show historical consistency with Privy Council reasoning on the subject.
Mohima Chunder Mozoomdar v. Mohesh Chunder Neogi Privy Council decision holding that where claimants alleged they had been dispossessed some years before the suit, they bore the burden of proving possession within the twelve years preceding the suit (applicable to article 142 cases). Cited as the Privy Council authority underlying the rule applicable to dispossession suits (article 142) and as a contrast to the mistaken extension of that rule to article 144 cases by Inayat Husen.
Muhammad Kamil v. Habib-ullah Referenced in the opinion as a reported judgment in which a judge (the same judge who spoke in the present opinion on other occasions) had pointed out the effect of the Privy Council decision and cautioned against following contrary local decisions. Mentioned to show prior judicial recognition (by members of this Court) that the Privy Council decision had clarified the law and that decisions to the contrary should no longer be followed.

Court's Reasoning and Analysis

The court proceeded by first stating the factual foundation: the plaintiff's title as zamindar had been established in the lower courts and the plaintiff's case relied on an original licence that put the defendant into possession. The defendant, however, repudiated that licence and asserted adverse possession. The court held that once the defendant repudiated the licence and asserted adverse possession, he could no longer rely on the licence; at that stage he stood as a trespasser unless he could establish title by adverse possession.

The lower appellate court had found that the plaintiff had shown title and that the defendant had not proved his possession to have been adverse. Nevertheless, the lower appellate court ruled for the defendant because it believed, following Inayat Husen v. Ali Husen, that where article 144 applied the plaintiff must show a subsisting title (possession within twelve years).

The court rejected that interpretation. It relied principally on the Privy Council decision in Secretary of State for India v. Chellikani Rama Rao, which overruled the Madras High Court's contrary view and held that the burden of establishing title by possession lies on the person asserting possession. The court quoted Lord Shaw's opinion from that Privy Council decision emphasizing that it would be contrary to legal principles to allow a possessor to force the owner to give negative proof that the possession (of himself and predecessors) was insufficient in duration.

The court then reviewed the historical authorities to clarify the distinction between actions governed by article 142 of the Limitation Act and those governed by article 144. It cited Parmanand Misir v. Sahib Ali, Jafar Husain v. Mashuq Ali and the Privy Council decision in Mohima Chunder Mozoomdar v. Mohesh Chunder Neogi to show that where a plaintiff sues alleging dispossession (article 142) the plaintiff must give prima facie evidence of possession within twelve years. By contrast, in actions where the plaintiff stands upon his title (article 144), the burden remains on the defendant who alleges adverse possession to make out that defence.

On that basis, the court concluded that the rule stated in Inayat Husen (that a plaintiff in article 144 cases must prove a subsisting title) is inconsistent with Privy Council authority and has been overruled; accordingly, the lower appellate court erred in holding itself bound by Inayat Husen. Because the lower appellate court's decision was founded upon that incorrect principle, the appellate court's judgment was reversed.

Holding and Implications

APPEAL ALLOWED

Direct effect on the parties:

  • The court allowed the appeal and ordered the appeal to be allowed with costs.
  • Because the lower appellate court had found that the defendant failed to prove adverse possession and because the plaintiff's title had been established, the plaintiff is entitled to succeed.

Broader implications stated in the opinion:

  • The court declared that Inayat Husen v. Ali Husen and similar decisions are no longer law insofar as they impose on the plaintiff in article 144 suits the burden of proving a subsisting title (possession within twelve years).
  • The opinion directs lower courts in the province to follow the Privy Council decision in Secretary of State for India v. Chellikani Rama Rao, which places the burden of proving possession (and therefore adverse possession) on the party asserting that possession, not on the plaintiff who stands upon title.
Appeal allowed.

    Jai Chand Bahadur v. Girwar Singh

    Walsh, J.:— This appeal must succeed. The plaintiff is the zamindar of the village and his title has been established in both courts. He alleged that the defendant was put in possession for certain purposes, unnecessary to mention, by leave and licence. The defendant denied the licence in his written statement and set up an adverse title. Mr. Baldeo Ram, for the defendant, says that it is not proved that the licence was ever granted or revoked. In our opinion, that is now immaterial. The plaintiff based his case upon it, and from the moment that the defendant repudiated the licence and set up adverse possession, it was no longer possible for the defendant to rely upon the licence or to deny its revocation. He was in the position of a trespasser without any defence to the suit unless he succeeded in establishing his title by adverse possession.

    With reference to that part of the case I propose to cite two passages from the judgment of the lower appellate court. Having held that the plaintiff had shown title, the learned Judge said:—

    “It is equally obvious that the appellant failed to substantiate his allegation of adverse possession. It was not at all asserted when the title of the zamindar was denied and his own assorted.”

    This being so there is no finding of adverse possession, and in our opinion the defence fails and the plaintiff is entitled to succeed. The reason why the Judge in the lower appellate court gave judgment for the defendant is contained in the following words, which propose to quote, for the reason that in my opinion a false impression of what is the actual law, has prevailed for a very considerable time in the lower courts. There is at least one authority in the Law Reports of this province by which the lower courts, unless they happen to be familiar with the Privy Council decisions, may reasonably hold themselves bound, and it is high time that a clear indication was given as to the actual law as it stands at the present moment in this province, as throughout India, upon this question. The learned Judge says:—

    “In this case, which was an action for ejectment, where the defendant advanced the plea of adverse possession, in my opinion, the onus lay on the plaintiff respondent to prove not only his title but also his possession within twelve years of the suit. It was held in Inayat Husen v. Ali Husen, that the plaintiff should lay the foundation for his case by proving that he was in possession of the land within limitation.”

    In our view that is not the law and never has been the law in this or in any other province in India. The matter wad recently made perfectly clear by an important decision of the Privy Council in Secretary of State for India v. Chellikani Rama Rao. The importance of that decision is this:—The Madras High Court in that particular case had followed a view which the Madras High Court had teen taking from time to time since the year 1885; the same view apparently, as that which is declared in Inayat Husen v. Ali Husen, namely, that in a suit by an owner of property for possession, to which article 144 of the Limitation Act applied, the plaintiff had to show what is called “a subsisting title.” The Privy Council overruled that decision and in doing so clearly overruled the three antecedent decisions of the Madras High Court cited and relied upon in the judgment of the Madras High Court which was under review, and they did so in language contained in the opinion of Lord Shaw which to our mind is as binding upon us and upon inferior courts of this province as any statute can be:—

    “Their Lordships are of opinion that the view thus taken of the law is erroneous. Nothing is better settled than that the on as of establishing title to property by reason of possession for a Certain requisite period lies upon the person asserting such possession. It is too late in the day to suggest the contrary of this proposition. If it were not correct it would be open to the possessor for a year or a day to say—I am here, be your title to the property ever so good, you 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.’ Such a singular doctrine can be well illustrated by the case of India… it would be contrary to all legal principles thus to permit the squatter to put the owner of the fundamental right to a negative proof upon the point of possession.”

    We hold ourselves bound by that declaration of the law and compelled to say that Inayat Husen v. Ali Husen, and similar cases are no longer law, and inasmuch as the lower appellate court has held itself bound by Inayat Husen v. Ali Husen, we must reverse its decision.

    I now propose as shortly as I can in justification of our view that the law is really settled and has only been unsettled by misunderstanding, to mention the history of the authorities upon this subject. The point arose in Parmanand Misir v. Sahib Ali, where it was disposed of by a three Judge Bench. It is important to observe that the character of the suit in that case was one to which article 142 of the Limitation Act would have applied.

    “There is a clear distinction,” they said, as to the onus of proof between cases where a plaintiff sues for possession of land by redemption of mortgage and cases where the defence to a suit for possession of land is twelve years' adverse possession by the defendant. In each case the plaintiff must plead his title and if that title is in issue, he must make it out by at least primâ facie evidence before the defendant can be put to proof of his defence. Where the defence is twelve years' adverse possession, the defendant must plead and make out the title he alleges and thus show that the title of the plaintiff which otherwise had been proved or admitted was lost.”

    In Jafar Husain v. Mashuq Ali(3), the same question as to burden of proof in cases of adverse possession arose in a suit to which also article 142 of the present Act would have been applicable, and the Chief Justice in the judgment in that case again made the matter perfectly clear, the said:—

    We are satisfied that where a plaintiff cornea into court alleging that he has been dispossessed within limitation and when the defence is adverse possession, the question of limitation becomes a question of title, the plaintiff must at least give some primâ facie evidence to satisfy the court in the first instance that he was in possession within twelve years before the defendant can be called upon to make out his defence of twelve years' adverse possession.

    Whether the expression that the question of limitation becomes a question of title is accurate or not, that case makes it quite clear that there is a broad distinction between cases such as those covered by article 142, where the plaintiff claims possession, by reason of dispossession, and cases such as those covered by article 144, where the plaintiff stands upon his title and leaves the defendant to show that he has lost it. And the decision which I have just cited from Jafar Husain v. Mashuq Ali was itself based upon a decision of the Privy Council, in Mohima Chunder Mozoomdar v. Mohesh Chunder Neogi, where their Lordships held that the claimants had shown that they were formerly proprietors of the land to which they alleged title, but they had been dispossessed some years before the suit was brought by them, and the land was occupied by the defendants, who denied their title. That being so, the burden of proof was on the claimants to prove their posession at some time within the twelve years next preceding the suit. The action being one to which article 142 of the Limitation Act applied, it was on the claimants or plaintiffs to prove their possession at some time within the twelve years. The reasoning of that decision, if it is not presumptuous to say so, is quite clear. Where a plaintiff comes into court complaining of dispossession, and founds his cause of action upon a specific act of the defendant of that kind, it follows that, inasmuch as he is compelled to establish a cause of action of some kind within limitation, he must show that he was in possession within limitation, otherwise he could not have been dispossessed, and dispossession is the grievance of which he complains. So that in our opinion, at any rate down to the year 1897, the law as enunciated by this Court was based upon the decision of the Privy Council and ought to have been accepted without controversy. Unfortunately a case crept into the Law Reports which is difficult to explain, and certainly never should have been reported, namely, the case upon which the learned Judge has acted in this particular decision. That is the case of Inayat Husen v. Ali Busen. We are not concerned to say whether or not the case in point was rightly decided, but the vice of the decision is contained in a sentence in the judgment which I propose to quote, and which unfortunately forms a prominent feature of the head-note. “It is contended,” said the Court, “that the suit is governed by article 144 and the burden of proof was on the defendants to establish adverse possession alleged by them. In our opinion in every suit for possesion the plaintiff must not only prove a legal title to possession but a subsisting title not barred by the law of limitation. Where that statement of the law came from it is impossible to say. It is sufficient to say that it is inconsistent with the Privy Council decision in Mohima Chunder Mozoomdar v. Mohesh Chunder Neogi, and has been definitely over-ruled by the Privy Council in Secretary of State for India v. Cheilikani Roma Rao. In as much as the attention of the Privy Council was directed to the several Madras decisions it is not likely that Inayat Husen v. Ali Husen was ??? to them. It so happens that each of us ??? alone on different occasions has taken the same view of the law as we thing is low established. It happen myself to have expressed my opinion in a judgment which was reported in Muhammad Kamil v. Habib-ullah(4), where the District Judge had taken the same view as the District Judge in the case and had based himself upon the same authority and, recognizing the danger or holding this view, I went out of my way to point out that the Privy Council had realty removed all possible misunderstanding upon the question and that any in this country which had laid down the law to the cotrary must be taken to be no longer binding. I observe that in the supplement to the most recent edition of his book Mr. Rustomji referred to that report and says that my observations must be received with same degree of caution. I have taken the trouble the cases in Mr. ??? and the various decisions on which I had arrived at the conclusion I had ??? I cannot find anything in Mr. Rustomji's ??? the view which I have expressed more than once that the Privy Council decision in Sectary of State for India v. Chellikani Rama Rao, has in effect overruled the Madras cases and Inayat Husen v. Ali Husen. And I think it is not saying too much to ask the inferior courts when this question arises again, as it undoubtedly frequently arises, to pay attention to these observations and to examine the Privy Council decision and no longer to hold themselves bound by the decision in Inayat Husen v. Ali Husen.

    Ryves, J.:— I agree generally. The finding of the lower appellate court is:—“The fact remains that the plaintiff is the zamindar and the defendant has been in long possession of the laud” It his also found that the possession of the defendants has not been proved to have been adverse. That being so it seems to me that since the publication of the ruling of the Privy Council reported in Secretary of State for India v. Chellikani Rama Rao the plaintiff must succeed, inasmuch as the defendant has failed to prove his adverse possession. I concur in the order proposed.

    By the Court:— For these reasons our order is that the appeal mut be allowed with costs.

    Appeal allowed.

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    Comments

    Jai Chand Bahadur v. Girwar Singh
    (Jun 17, 1919)