GOPAL MINI DASI Vs. KALI CHARAN KUNDU

JUDGEMENT

(1.) This appeal relates to the right to recover possession of some 80 bights of chur lands. The original action was instituted with regard to other lands also, and it was dismissed in toto by the Court of first instance holding that it was barred by limitation in that the plaintiff had failed to prove actual possession within 12 years of suit. This decision was reversed by the lower Appellate Court in so far as the 80 bighas already mentioned are concerned, and a decree was given to the plaintiff in respect of that area. The appellate decision has been assailed before us on one ground, namely, the ground that the District Judge was wrong in placing the burden of proof on the defendant. "The land being land yielded up by a liver," remarks the learned District Judge, burden of proof is on the defendant to show that possession was first taken of it by more than 12 years prior to the suit. Failing proof of this, the suit must be decided in accordance with the title to be presumed from the survey maps,"

(2.) Now, no doubt, the plaintiff in ejectment is bound to prove his title and possession within the statutory period. But the onus resting upon him may be discharged and shifted on to the other side if the plaintiff starts with a presumption is his favour. It is quite clear to our mind that, that is what has happened in the present case.

(3.) The facts found seem to be perfectly clear. The survey maps produced by the plaintiff have been held to show that the land appertains to the plaintiff s mouza. It was submerged and eventually re-farmed in situ. An attempt to re-claim it was then made by the erection of a bheri by the defendant and this was done "certainly not more than 12 years before 1907." Even yet the land is lying fallow and is presumably unfit for cultivation; and the learned District Judge says that there is no evidence that any one performed any act of possession over it for more than 12 years previous to the bringing of the suit. There can be no constructive possession implied in favour of any one but the true owner. The plaintiff is the true owner, and, therefore, possession during submergence, that is, till the reclamation by the erection of the bheri by the defendant, was his; and that reclamation took place within 12 years of the suit. Therefore, the plaintiff was clearly within time as regards these 80 bighas and was entitled to succeed. The view taken by the learned District Judge was, therefore, is, the circumstances of this case, substantially right and we think that the appeal must be dismissed with costs.