OUSEPH VARKEY Vs. OUSEPH JOSEPH

JUDGEMENT

(1.) THIS C. M. A. has arisen in a suit for injunction to restrain apprehended trespass on the plaintiffs' land by the defendants who are adjoining proprietors on the north. The Munsiff found that a fence on the southern side of the disputed land had been in existence before the institution of the suit and that apparently showed that the defendants were in possession of the disputed plot as part of their land and therefore refused injunction. The lower appellate Court, without entering a finding on possession, remitted the suit, pointing out that the plaintiffs are entitled to a presumption of possession as declared in Damodara Panicker v. Ayyappankutty (1962 KLT. 637) and Achuthan unni v. Vally (1962 KLT. 1010 ). Hence this C. M. A.

(2.) COUNSEL for appellants brought to my notice that the decision in 1962 KLT. 1010 has been reversed by a Division Bench in A. S. No. 544 of 1962 (since reported in 1966 KLT. 86 ). The dicta in 1962 KLT. 637 and 1010 are to the effect that when possession of adjoining plots of land, surveyed and therefore having fixed boundaries, is admitted to be with the respective proprietors and the dispute is about the shift of a temporary fence over a narrow strip at the mutual boundary "2 to 3 feet wide" in the former case and "on the average 2 links wide" in the latter it would be difficult to prove actual possession of so narrow a strip as such, and that the rule, where positive proof is impracticable, is to presume possession with the person of title, as in the case of waste lands, jungle lands, submerged lands etc. I must confess that, in laying down that dictum, I was pursuing a mode of judicial approach that later found expression in the speech of Viscount Radcliffe in imperial Chemical Industries, Ltd. v. Shatwell (1965 Appeal Cases 656 at 675): "my Lords, it sometimes helps to assess the merits of a decision, if one starts by noticing its results and only after doing that allots to it the legal principles upon which it is said to depend. " 1 am afraid that even in case of an admitted possession, if the possessor is asked to give positive proof of his possession of a square yard of the land at its middle he will be at a loss; and the difficulty of proof would be more if the square yard is at an extremity of the land. When possession of a piece of land that has definite boundaries as in the case of a surveyed land is admitted and the area in dispute falls within its boundary and is so small as to be difficult of positive proof of independent possession, the aforesaid presumption rebuttable and not conclusive comes, in my opinion, to operate. Law never contemplates the impossible to be done. As has been held in Hafiz Mohammed Fateh Nasib v. Sir Swarup Chand Hukum chand (AIR. 1948 P. C. 76) proof of possession of land does not mean positive proof of actual physical possession of every square inch of the land but only of such dominion over the property as would justify the inference of possession of the whole.