MAHAMADSAHEB IBRAHIMSAHEB Vs. TILOKCHAND ABHEERCHAND MARWADI

JUDGEMENT

(1.) The plaintiff tiled this suit to recover possession of the two open sites described in the plaint. He alleged dispossession by the defendant unlawfully about three years prior to the suit. The defendant alleged that the plaintiff was not the owner of the plaint property; that he had never been in possession or enjoyment of it; that the defendant had been in possession for many years as owner; that the suit was time-barred; and that the cause of action did not accrue in 1913. The main issues were: (1) Does the plaintiff prove that the plots in suit were purchased by him at the auction sale in 1893; and (2) Is it proved that the plaintiff was in possession within twelve years before the suit ? The first issue was found by the trial Court in the affirmative, the second, in the negative. The result was that the suit was dismissed.

(2.) In appeal the learned Judge was of opinion that the evidence of the witnesses on both sides was unworthy of credit. But the plaintiff having established his title over the plaint property he could rely upon the presumption that possession goes with the title. There being no satisfactory evidence in rebuttal the presumption must be given effect to.

(3.) This raises a question which has often been discussed in these Courts, and eventually it may have to come up for decision before a Full Bench No doubt if the suit comes under Art. 142 of the First Schedule of the Indian Limitation Act time begins to run from the date of the dispossession. But if the plaintiff alleges he is dispossessed within twelve years of the suit, then the question must arise, according to the circumstances of each case, how far the plaintiff has correctly fixed the date of dispossession, and how far the onus lies on the defendant to show that that date was wrong. I may refer to Secretary of State for India v. Chelikani Rama Rao (1916) L.R. 43 I.A. 192; 18 Bom. L.R. 1007 and Kuthali Moothavar V/s. Peringati Kunharankutty (1921) L.R. 48 I.A, 395, 404 where their Lordships said on the question of the onus probandi in cases where title has been proved : Standing article in A the alleged adverse possestion of B must have all the qualities of adequacy, continuity and exclusiveness which should qualify such adverse possession. But the onus of establishing these things is upon the adverse possessor.