BHAGWANSING DAULATSING Vs. SECRETARY OF STATE

JUDGEMENT

(1.) In this case the plaintiff sued to recover the possession of certain sites of which he had been in possession and from which he was dispossessed in September 1893. The suit having been brought in 1904, no bar would rise under Article 142, Schedule 2, of the Limitation Act, and the lower Court has found that the suit was within time. But the Judge states that the onus is on the plaintiff to prove that he was in twelve years peaceful possession prior to the date of his ejectment. Possession is in itself title in the absence of proof displacing the presumption that arises from possession. Doe dem Garter v. Barnard (1849) 13 Q.B. Rep. 945, on p. 953, Asher v. Whitlock (1865) L.R. 1 Q. B. 1., Pemraj v. Narayan (1882) I.L.R. 6 Bom. 215, followed in Krishnarao v. Vasudev (1884) L.R.R. 8 Bom. 371, dissenting from Dadabhai v. The Sub-Collector of Broach (1870) 7 B.H.C. 82, Gangaram v. The Secretary of State for India, in Council (1895) L.R. R. 20 Bom. 798, Hanmantrao v. The Secretary of State for India (1900) I.L. 25 Bom. 287. Anangamanjari v. Tripura Soondari (1887) L.R. 14 I.A. 101, Ismail Ariff v. Mahomed Ghous (1893) I.L.R. 20 Cal. 834 : L.R. 20 I.A. 99, vide p. 106 may be cited among the authorities for that position, which has always been the view of law recognized by this Court. The Calcutta High Court in Purmeshur Chowdhry v. Brijo Lall (1889) L.R.R. 17 Col. 256 has expressed regret that it is bound by precedents which prevent its adopting in its entirety the doctrine laid down by the Bombay High Court, a doctrine which is consistent with many rulings of the Privy Council as well as of all English Courts. The plaintiff starts with a presumption in his favour and the maxim praesumitur retro applies, and it is therefore for the defendant to show, not only that plaintiff s possession was not evidence of his title, but that defendant has a superior title to that of the plaintiff. Plaintiff is not called upon to prove adverse possession. If it were necessary for him to do so, he would have had to prove sixty years adverse possession as against the Secretary of State: Article 149, Schedule 2, of the Limitation Act. The only onus on the plaintiff in bringing a suit on dispossession after possession, was to show possession within twelve years: Rao xKaran Singh v. Raja Bakur Ali Khan (1882) L.R. 9 I.A. 99 and Faki Abdulla v. Babaji Gungaji (1890) I.L.R. 14 Bom. 458-462. But he could rely on the admission in the notice, and moreover the lower Court has itself found that the plaintiff was in possession. A plaintiff suing within six months of dispossession is, under Section 9 of the Specific Relief Act, entitled to recover irrespective of the title of the disseizor, but a suit brought after six months may be based entirely on previous possession as evidence of title, but in that case the disseizor is entitled to adduce evidence of title and is entitled to succeed only if he can prove that title. If it were otherwise, a disseizor who was a mere trespasser would, by his illegal act, not only deprive the person ousted of the title arising from possession, but acquire a title for himself [see Kalu v. Barrsu (1894) I.L.R. 19 Bom. 803]. The lower Court has relied for its view of the law on the use in Section 110 of the Evidence Act of the present tense in describing the condition from which a presumption of ownership arises. But that use of the present tense is due to the recognized mode of legislative expression. It does not justify the inference on the discontinuance of possession, that the possession so long as it continued was without title. But if it can still be presumed to have been with title, then it is for the person who, without acquiring the title of the person ousted, admittedly disturbed the possession, to prove his title. Otherwise the presumption being in favour of the person who was in possesion and who is not shown to have been legally ousted, must prevail. For it cannot, in the absence of all evidence, be presumed that the ouster was with title. These very simple principles have unfortunately been ignored in this case.

(2.) We accordingly remand the case to the lower Court for a finding on the following issue:-

(3.) On the 31st July 1907, the Court (Russell Ag. C.J. and Knight J.) reversed the decree of the lower Court and allowed the plaintiff s claim with costs.