THIRUVANCHAN SANKARAN Vs. KUNJIPILLAI AMMA GOURI AMMA

JUDGEMENT

(1.) THIS appeal is in a suit for recovery of landed property with incidental reliefs. The Munsif 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 Ker LT 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 Section 112, Evidence Act, can be limited to people of particular communities.

(3.) THE evidence of a legal presumption that possession goes along with title cannot now be seriously doubted. It was ruled by the Judicial Committee of the privy Council as early as in 1873 in Runjeet Ram Panday v. Goburdhun Ram panday, (1873) 20 WR 25 at p. 30 (PC ). "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 to the contrary;. . . . . "