TUKARAM BAJIRAO Vs. TUKARAM YESHWANT

JUDGEMENT

(1.) THE only question to be decided in this case is whether simply because the plaintiff proved his title to the property and the defendant did not prove when he actually began his forcible cultivation of the plaintiff's land, there is any presumption that possession was with plaintiff during the last 12 years before suit. The lower appellate Court has refused to draw any such presumption in plaintiff's favour, but, on the contrary, it has considered it more probable that because the defendant is admittedly in possession since 1915 he must have commenced his cultivation some time before that. I think this reasoning is faulty. The presumption is prospective rather than retrospective in operation The presumption of continuity has an operation in the. future, because it be shown that a particular state of things was existing at a particular time, that state of things will be presumed to continue in the absence of anything to the contrary.

(2.) THE present suit was filed in 1923 when the plaintiff was admittedly out of possession for eight years. The defendant alleges plaintiff was never in possession and that he himself was in adverse possession all along. The law presumes that possession follows title and does not favour forcible entry into possession by trespassers. Thus the question is whether the plaintiff should be presumed to have enjoyed possession of the land in suit during the four years preceding 1915 or the law will presume that the trespasser came upon the land at a much earlier point of time than that admitted by plaintiff. In short, the appellant admits defendant's possession for eight years while the defendant says he was in possession for 12 years and longer. The difference between the admitted possession and the period of limitation being so narrow (four years) the question of onus is important. Reading the findings of the lower appellate Court very carefully I am inclined to think that the inference properly arising therefrom is that the land was then lying vacant and not occupied by the defendant. The mere circumstance that land is fit for cultivation does not place the owner under an obligation to cultivate it on pain of losing it if left uncultivated. The owner may have no present use of the land. The law cannot be so unreasonable to compel every owner to cultivate the land. I cannot therefore agree with the lower appellate Court's finding that probably defendant was in possession prior to 1915. In Rani Hemanta Kumari Debi v. Maharaja Jagadindra Nath Roy Bahadur [1906] 16 M.L.J. 272 their Lordships of the Privy Council laid down the following proposition: Where in an ejectment suit the plaintiff alleged dispossession by defendant (as in this case) eleven years before suit, the onus of proving plaintiff's possession prior to his dispossession lies upon him and in this question of evidence, the initial fact of the appellant's title comes to his aid and with greater or less force according to the circumstances established in evidence.

(3.) THE plaintiff's appeal is allowed and the claim is decreed with costs throughout.