USSAN KAISM SAIT Vs. SCRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR OF MALABAR AT CALICUT

JUDGEMENT

(1.) The property in dispute in this case is a small piece of vacant ground outside the boundary wall of the plaintiff's premises, those premises having access to it and the adjoining road by a gate.

(2.) The suit by plaintiff is for a declaration of his right to the property outside his boundary wall. The Government registered the land as puromboke at the recent survey; and he claims it as his jenm property. Issues were framed as to the sustainability of the suit for mere declaration, the defendant, the Secretary of State, denying the plaintiff's possession as to the ownership of the property and as to the title set up by Government by adverse possession.

(3.) The first objection to the Lower Appellate Court's judgment is that it contains no distinct finding as to title, its discussion of the evidence being confined to a conclusion that the measurements in the plaintiff's documents could not be accurate, although the question whether they could be trusted as to any part of the disputed land was left open. If the measurements could not be trusted, the Lower Appellate Court should have considered whether it could not act on the principle that title goes with possession and it should have decided whether the plaintiff had discharged the burden of proof, which in view of his failure to establish his alleged right in connection with the survey was, it is, not disputed, on him. That, however, matters comparatively little. For the Lower Appellate Court has in fact found in favour of the defendant's possession and against that of the plaintiff in connection with the plea of prescription; and it would presumably have if it had looked at the case in the manner suggested, applied that finding to support a conclusion in favour of the defendant's title and also against the plaintiff's right to sue only for a declaration.