VASTA BALWANT Vs. SECRETARY OF STATE FOR INDIA

JUDGEMENT

(1.) The plaintiff sued the Secretary of State for a declaration, an injunction, the refund of certain payments made and costs as stated in the plaint. He claims to be the owner of a certain gabhan in the village of Vadadla in the Broach District which he alleges came to him on partition of joint family property. He says that he built a house on the gabhan and that the said house is still in existence, but in 1912 some of his enemies made a false application to Government and there was a departmental inquiry and the District Deputy Collector held that the site belonged to Government and consequently the plaintiff was ordered to pay Rs. 3-14-8 as rent and local fund cess and Rs. 4 as fine, and was further ordered to pass a lease, and failing compliance the Government was to take possession of the site. Thereupon he made payments under protest, while appeals to the Collector and to the Commissioner and finally to the Government of Bombay were dismissed. He prayed, therefore that the Court might be pleased to declare that the house site was of the ownership of theplaintiff and that the orders passed by the Government officers might becancelled. The defendant contended that the plaintiff had recently encroached upon the plaint gabhan by constructing a house thereon, that no title had been acquired by him by adverse possession, that the inquiry made by the Revenue Officers was proper and legal and therefore the suit ought to be dismissed.

(2.) The learned trial Judge held that for the plaintiff to succeed he had to prove adverse possession which in the case of crown lands was for a period of sixty years. The plaintiff had only proved twenty years. He, therefore, dismissed the suit.

(3.) In appeal reliance has been placed on the decision of this Court in Hanmantrav v. The Secretary of State for India (1900) I.L.R. 25 Bom. 287. In that case Mr. Justice Whitworth dissented from Sir Lawrence Jenkins, and on a reference to Mr. Justice Ranade that learned Judge agreed with the conclusion of the Chief Justice although not on the same grounds. Mr. Justice Ranade considered that the plaintiff" had not only possession, but possession accompanied with proof of title sufficiently strong to shift the burden of proof; that the plaintiff s possession was not wrongful and was founded on a prima facie title which was to be protected under Section 110 till defendant showed a better title. Sir Lawrence Jenkins referred to the case of Gangaram v. Secretary of State for India as distinctly showing that even in the case of a village site Government cannot rely on any general presumption and that as against the party in possession it must show title. The judgment of Mr. Justice Jardine in that case is a very short one and hardly gives one reason for thinking that the question whether Government could rely on any general Secretary presumption had been fully argued. In any event that question is not dealt with in the judgment which merely states as follows : The plaint prayed that the Court would declare that the defendant had no title, and that the plaintiff had a title to the property in dispute. The learned Judge found, that the plaintiff had not proved his title; and this finding has not been contested, here. We are of opinion that the Judge was right in refusing the declaration of title.... The plaint, however, contained a prayer that the plaintiff might be awarded any other relief to which he might be entitled. If he had made reference to Section 42, ill. (g), of the specific Relief Act, or if the Court had noticed that illustration which refers to suits brought for confirmation of possession, it is probable that an issue would have been raised as to whether the plaintiff was entitled as against the defendant to be retained in possession. There is no evidence, on the record, of the defendant s title, and it is found by the Judge that the plaintiff has held possession for at least ten years and has built a shed on the land. These facts appear to us to bring the case within the ruling of their Lordships of the Privy Council in Ismail Ariff v. Mahomed Ghouse (1893) L.R. 20 I.A. 99. We, therefore, modify the decree of the District Judge and further declare that the plaintiff is lawfully entitled to possession of the land in suit and the shed thereon". Therefore it cannot possibly be said that that is a very satisfactory judgment on the question Whether in the case of an unoccupied village site the general presumption of title is with Government. Nor was any reference made of the Land Revenue Code which clearly shows that all unoccupied sites are the property of Government unless an individual can establish in his own right a title to such unoccupied property. A very similar question was dealt with by the Privy Council in Secretary of State for India v. Ghelhkani Rama Rao (1916) I.L.R. 39 Mad. 617. 631. The question there was whether the Secretary of State was entitled to incorporate the lands in dispute into a reserved forest under the Madras Forest Act, such lands being islands formed in the bed of the sea near the mouth or delta of the river Godavari. The High Court of Madras held that "though the title was originally in the Crown, still, as the possession of the claimants for twenty years prior to the notification was found, it rested upon the Crown to prove that it had a subsisting title by showing that the possession of the claimants commenced or became adverse within the period of limitation, i. e., within sixty years before the notification." Their Lordships of the Privy Council were of opinion that" the view thus taken of the law was erroneous." Their Lordships said : " Nothing was better settled then that the onus of establishing title to property by reason of possession for a certain requisite period lies upon the person asserting such possession. It is too late in the day to suggest the contrary of this proposition. If it were not correct it would be open to the possessor for a year or a day to say I am here; be your title to the property ever so good, you cannot turn me out until you have demonstrated that the possession of myself and my predecessors was not long enough to fulfil all the legal conditions ". Therefore it seems to me that there is no force in the argument that Section 110 of the Indian Evidence Act must be applied and that because the plaintiff showed he had been in possession for a period of twenty years, the onus was then thrown on the Secretary of State of proving that the plaintiff was not the owner. That would be, as far as I can see, going directly against the dictum of the Privy Council I have just referred to. The Secretary of State is able to show by the general law that he is the owner of the land in question and in order to oust him the plaintiff in this case has to prove either that he has got a title better than the title of the Secretary of State or that he has obtained a title by adverse possession, that is to say, by possession for sixty years.