SANKARAN Vs. GOWRI AMMA

JUDGEMENT

(1.) THIS appeal is in a suit for recovery of landed property with incidental reliefs. The Munsiff dismissed the suit finding the plaintiff to have failed to prove possession with herself or her predecessor within 12 years of the suit. The Subordinate Judge, on appeal, decreed the suit holding her to have given sufficient evidence to show her possession within 12 years prior to the suit. Hence this second appeal by the 1st defendant.

(2.) THOUGH the finding of the Subordinate Judge that "there is sufficient evidence to show that the plaintiff has been in possession within 12 years prior to the date of the suit" was sufficient for decreeing the suit, he has cited Vaidhyanathaswamy v. Lakshmi Amma 1962 KLT. 577 and observed "if the oral evidence on both sides is to be treated as equally unsatisfactory, the case should have been decided on the basis of the presumption arising from title". Counsel for appellant challenged that proposition and canvassed its reconsideration. Counsel is not prepared to deny existence of a legal presumption of possession going along with title, but urges that such presumption would arise only in cases where proof of actual possession is impossible on account of the nature of the property as a forest land or a submerged land. To me it appears that if there exists a presumption of law that possession goes with title it must apply to all kinds of land. That legal presumption cannot be limited to lands of particular kinds any more than the legal presumption of paternity under S.112, Evidence Act, can be limited to people of particular communities.

(3.) THE above proposition appears well affirmed in the decision of the Supreme Court in Kashi Bai v. Sudha Rani Ghose AIR. 1958 SC. 434 which concerned a suit for recovery of landed property after fixation of intermediate boundary, where there was no proof of the plaintiff's possession, and all the evidence was that in the period 1917 to 1945 the defendant the neighbouring owner had been in possession and enjoyment of the land, by working a coal mine therein, in the years, 1917/1918, 1923 to 1926, 1931 to 1933, 1939, 1944 to date of suit in 1945. Title to the land was found with the plaintiff. THE Supreme Court observed that during the intervals that the defendant did not show physical possession with himself, possession must be held to have reverted to the owner, and therefore the plaintiff has to succeed. THE facts of the case and the inference drawn thereon which are material for understanding the decision, are at Para.4 and 7 of the judgment, which may be quoted with advantage here.