1. This point which is raised in this second appeal raises the ancient controversy regarding the effect of presumption of continuous possession from title. It was laid down by the Privy Council in the case of Runjeet Ram Panday v. Goburdhun Ram Panday . 1873 20 W.R 25 P.C that the ordinary presumption would be that possession went with the title, but that presumption cannot, of course, be of any avail in the presence of clear evidence to the contrary. But where there is strong evidence of possession, as it is here on the part of the respondent, opposed to 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 in the peculiar circumstances of that case be regarded. Upon that a Bench of this Court in the case of Dharm Singh v. Hur Pershad Singh . 1886 12 Cal. 38. refer to this pre-sumption arising on title found to be in the plaintiff, and they say that if the Judge had disposed of the case solely with reference to this presumption he would have been in error. There must be some positive evidence of the plaintiff's possession on the record. Following this and explaining the dictum of the Privy Council, Ghosh and Stevens, JJ., in the case of Thakur Singh v. Bhogeraj Singh . 1900 27 Cal. 25. laid down that where evidence was equally strong on both sides and apparently equally balanced, preference should be given to the evidence on the side of the parties with whom title was found, thus following the course which was actually taken by the Privy Council in the case we have above cited. But where, as in the case before them, the evidence of the witnesses on both sides was equally unworthy of reliance, no such presumption can be made, thus approving the dictum of Mr. Justice Field that the presumption could not take the place of all evidence.
2. This case was cited with approval by Bodilly and Mukerjee, JJ., in the case of Babu Kasturi Singh v. Rajkumar Babu . 1904 8 C.W.N 876. and we are asked to find that one of the Judges who decided that case has since laid down the opposite dictum in the case of Mirza Shamsher Bahadur v. Munshi Kunj Behari Lal . 1908 12 C.W.N 273.. What Mr. Justice Mukerjee pays there is that when the District Judge deals with this part of the case he may, if the state of evidence justifies it, apply the principle laid down by their Lordships of the Judicial Committee in the case of Runjeet Ram Panday v. Goburdhan Ram Panday, namely, where the evidence of possession is equally unsatisfactory on both sides, the presumption may be made that possession was with the true owner. Now the first remark that we have to make is that the learned Judge carefully guards his directions with the condition “if the state of the evidence justifies it,” which is precisely what was laid down by Mr. Justice Field; and as regards the dictum of Runjeet Ram Panday's case, it would appear that the judgment has been either misreported or a clerical error has crept into it because Mr. Justice Mukherjee is not citing the dictum of the Judicial Committee where he says: “namely, where the evidence of possession is equally unsatisfactory on both sides,” and it cannot, therefore, be said that the learned Judge intended to reverse what he himself was a party to in the previous case which we have cited.
3. It appears to us that it is not an error of law on the part of the learned Subordinate Judge in the Court below to say that when the evidence of possession is equally unworthy of reliance on either side, as he found it is here, the presumption cannot apply. There being no such error of law, the appeal must be dismissed with costs.
V.B/R.K
4. Appeal dismissed.