UTHUPPU Vs. VARKI

JUDGEMENT

(1.) The plaintiff sued in the Court of the District Munsiff at Muvattupuzha for a declaration of his title, in respect of some quantity of pepper which he had entrusted with the 2nd defendant on the 16th February 1953 and to which, the 1st defendant advanced a claim setting up title in himself. The District Munsiff dismissed the suit and on appeal by the plaintiff the learned Subordinate Judge at Moovattupuzha decreed the suit declaring the plaintiffs title. The first defendant has, therefore, preferred this Second Appeal against the decree so passed.

(2.) The plaintiff caused some pepper to be carried to the shop of the 2nd defendant on the date above mentioned, for the purpose of sale, when the 1st defendant intercepted it, and prevented the sale from going through. The 1st defendants case was, that the pepper was what he had collected from his garden, and had been stored by him, but was afterwards stolen by some one. After some discussion between the 1st defendant and the plaintiff on the latters arrival, the pepper was left in the hands of the 2nd defendant, the plaintiff and the 1st defendant agreeing to settle their differences in due course. Subsequently, there was some mediation as a result of which, one or the other of the two contesting parties, agreed to settle their claims by taking oath. This also fell through, and the plaintiff therefore instituted the suit, for a declaration of his title as aforesaid, and for incidental reliefs. It may be mentioned, that the pepper had been sold subsequently, and converted into money.

(3.) The plaintiff adduced evidence to prove, that it was he who sent the pepper to the 2nd defendants shop on the date in question through a cooly. This part of the ease has been admitted by the 1st defendant himself. At the 2nd defendants shop, the cooly and the 1st defendant waited for about two hours for the plaintiff to arrive. There can be no doubt on the evidence, that on the date in question, the plaintiff was in possession of the pepper. The plaintiff also adduced some circumstantial evidence in support of his case. Pw. 2 saw one thulam of pepper belonging to the plaintiff being despatched to the market on the 7th February 1953, and more pepper being left with him which he told him, was reserved for the purpose of sale later, in order to purchase bulls with the sale proceeds. Pw. 4 saw the plaintiff actually packing pepper for the market. Pw. 3 the 2nd defendant proved satisfactorily, that it was the plaintiff who was in possession of the pepper on the date in question when it was taken to the shop. The 1st defendant adduced no evidence whatever to prove the theft of pepper which was said to have taken place. He concentrated himself on proving the prior mediation and the attempt to settle the dispute by oath-taking. The learned District Munsiff seems to have devoted a considerable part of his judgment to a consideration of this aspect of the case, which as the learned Subordinate Judge rightly pointed out, was not quite relevant to the issue to be determined. On the above evidence, I find that the plaintiff was in possession of the pepper in question, on the 16th February, 1953. S.110 of the Evidence Act lays down, that when the question is, whether any person is owner of anything of which he is shown to be in possession, the burden of proving, that he is not the owner is on the person who affirms, that he is not the owner. The principle underlying this, is thus stated by Taylor on Evidence, Twelth Edition, Vol. I, p. 181. As men generally own the property they possess, proof of possession is presumptive proof of ownership. In English Law, in actions against wrong-doers for injuries to personal chattels, proof of possession has long been held to constitute a complete title, but evidence was also required, that the plaintiff had some special property in such chattels. Taylor on Evidence p. 188. But S.110 of the Evidence Act insists only on proof of possession. The section is not limited in its application to immovable property but applies equally to movable property as well Chattra Kumari v. Mohan Bikramshah AIR 1931 Patna 114 was a case in which, the presumption of ownership was drawn in favour of the defendant by reason of his possession of certain funds, which were deposited by him in court. In a declaratory suit, the right of the possessor is directly assailed, and as against the assailant, possession affords very good evidence.