ANDHRA PRADESH STATE Vs. GOWRA SUBBARAYA SETTY

JUDGEMENT

(1.) .This is an appeal by the 1st defendant against the judgment and decree of the Subordinate Judge, Adoni, given on 29th August, 1962 whereby the learned Judge dismissed the appeal and confirmed the judgment of the trial Court decreeing the plaintiff's suit. The respondent-plaintiff instituted the suit alleging inter alia that he is the owner of the building bearing door Nos. 364, 366 and 367, Ward No. 14 in Adoni Municipality. In the recent street survey operations, the street in front of the above door numbers has been demarcated as S. S. No. 610. There is a pial in front of dopr Nos. 366 and 367 measuring 3' X 223/4' and the pial adjoins and abuts the main building bearing door Nos. 366 and 367 and is a part of the said building. There as a site measuring 3' X 6' in front of Door No. 364 and this site extends up to the street running in front of the above door numbers. The pials and the open site in front of the said door numbers belonged to the plaintiff. He has been the owner and in possession and enjoyment of the same since a long time. The survey carried on included the pial and the open space in the public street. The plaintiff, therefore, claimed declaration of his title and consequently correction of survey records. The suit was resisted by the 1st defendant on the ground that in accordance with the survey carried on, the place underlying the pial and the open space in dispute are part of the public street. The plaintiff has not prescribed his title to the same. Both the Courts below on evidence have found that the plaintiff has been in possession of the pial and the open space for more than 12 years. They therefore cast the burden upon the 1st defendant to prove that it had subsisting title and that the 1st defendant was in possession within 60 years of the defence they set up. Since there was no evidence adduced by the State Government the plaintiff's suit was decreed. It is this concurrent view of the Courts below that is now assailed in this Second Appeal.

(2.) .The principal contention of the learned Government Pleader is that section 110 of the Evidence Act does not apply to the Government and consequently no presumption can be made. He relied upon a decision of this Court in State of Andhra Pradesh v. Fakiru Bi, (1962) 1 A.L.T. 494. and argued that the plaintiff has not proved his title and that his title cannot be found on presumptions and probabilities. I do not think that this argument is valid. Section 110 of the Evidence Act reads as follows ;- " 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 section embodies the well-recognised principle that possession is prime facie proof of ownership. A person in possession is entitled to remain in possession until another person can disclose a better title. Under section 110 of the Evidence Act, therefore, once the plaintiff proves that he has been in possession of the suit property the burden of proving that the plaintiff is not the owner is on the 1st defendant who affirms that the plaintiff is not the owner. The section does not make distinction between the Government and a private citizen. Section 110 is, therefore, equally applicable where a Government claims to be the owner or challenges the ownership of the plaintiff who is in possession of the property. It is not disputed that the plaintiff has been in possession of the suit property. The onus, therefore, under section 110 of the Evidence Act was on the 1st defendant to prove that the Government had a subsisting title to the suit property. In Krishna Aiyar v. Secretary of State for India, (1910) I.L.R. 33 Mad. 173 : (1910) 20 M.L.J. 71. a Bench of the Madras High Court held that : "Where in a suit for declaration of title against the Government the plaintiff proves possession for a period of more than 12 years, the Government must prove that it has a subsisting title. When the Government fails to prove such title or possession within sixty years, the plaintiff is entitled to a declaration of title and not merely to a declaration that he is lawfully in possession of such land."

(3.) In this case it is not denied that the plaintiff has proved that he and his predecessors-in-title have been in possession of the suit property for more than 12 years. In such a suit for declaration of title, therefore, if the plaintiff proved that he has been in possession for over 12 years and if the defendant fails to establish his title or possession within sixty years the plaintiff would be entitled to get a decree. In this case the defendant has not adduced any evidence at all to prove its subsisting title. The case of State of A.P. v. Fakiru Bi, (1962) 1 A.L.T. 494. is not relevant for the point in consideration.