JUGRAJ Vs. STATE

JUDGEMENT

(1.) THIS is a second appeal against an appellate order of the Additional Commissioner, Jodhpur, dated 20.10.52 upholding the order of the Collector, Jodhpur, in a case under the Marwar Escheat of Property Ordinance, 1921.

(2.) WE have heard the parties at length and have examined the record as well. The proceedings commenced with an application submitted by Harak Chand on 26.7.1941 before the Hakim Bilara of the former Jodhpur State, wherein it was alleged that Punam Chand Oswal Lalwani had died heirless leaving behind one residential house which is in possession of Jugraj S/o Bakhtawar Mal Bohra who is attempting to secure patta in his own name. An enquiry was instituted wherein Jugraj preferred an objection that the house in question had been in his possession since three or four generations as it was purchased from Punam Chand by his ancestors. The Hakim Bilara vide his recommendation dated 14 4 -1948 submitted the case to the Judicial Superintendent Phalodi suggesting that as Punam Chand had died heirless leaving behind two houses which are in possession of Jugraj and Ladu Ram and as Jugraj is found to be a tenant of the deceased the houses may escheat to the Government. It appears that Jugraj filed separate objections before the Collector Jodhpur who, however, rejected the same on 25.7.1952. Thereupon Jugraj went up in appeal before the Additional Commissioner, Jodhpur, who also upheld the decision of the Collector, Jodhpur. Hence this second appeal. A perusal of the judgment of the lower courts makes it clear that the case was not approached there in a right perspective. It is an admitted fact that the appellants are in possession of the house in dispute since many decades. The appellants contention is that it was purchased by their forefathers from the deceased. This has not been proved by them as has been held by the lower courts. It has not been seriously argued before us that this finding of fact is not justifiable. It has, however, been argued that if the plea of purchase be held to be not proved the appellants would be entitled to retain their possession as their long and continuous possession should be deemed to have extinguished the title of the deceased by adverse possession. On behalf of the respondent it has been argued by the learned Government advocate that the possession was permissive and that there exists an entry in one babi wherein the appellants father is shown as having paid rent for the house in Svt. years 1950 1952 corresponding to 1893 -1895 A. D. The last owner of the property, Punam Chand, is alleged to have died in Svt. 1975 corresponding to 1918 A. D. The entry in the bahi to our mind is entirely meaningless. In the first place it is not contained in any of the account books maintained by the deceased, Punam Chand. Secondly it makes on mention of the property in respect of which the rent is alleged to have been deposited. As observed by Bentham "actual possession is a title to property which precedes all other and may hold the place of them. It will always be good against every man who has no other to oppose it." Possession is significant in two ways. It not only provides valuable testimony of ownership but is itself the foundation of a right to continue in possession. The lower courts have examined the case with a view to find out as to whether the appellants have been able to prove the alleged also or not. This is just like putting the cart before the horse. The property is admittedly in possession of the appellants since long. It was natural for the respondent to show that they had a better title to it and could recover possession from the appellants. Possession of land is prima facie evidence of ownership and he who sues for the recovery of the land of which another is in possession must recover on the strength of his own title. Possession can give a good title as against all but rightful owners, and it also continually tends to bar the rights of all who have a better and prior title. I rightful owners take no steps to assert their rights within the prescribed period their remedies would become barred and their title would be extinguished. In the present case we have no hesitation in observing that the respondents have failed to prove their title to recover possession form the appellants. We would, therefore, allow this appeal, set aside the orders of the lower courts and direct that escheat proceedings taken against that house of the deceased Punam Chand which is in possession of the appellant shall be dropped.