(VISHNUBHOTLA) VENKATA SOMAYAJULU Vs. SISTA SURYANARAYANA

JUDGEMENT

(1.) The plaintiff's suit is for possession of the plaint land. Inasmuch as he alleges dispossession by the defendant the onus is upon him to prove possession and dispossession within 12 years. The Courts below have dismissed his suit and he has preferred this second appeal.

(2.) The contention of Mr. C. V. Venkatachari for the appellant is that the lower Courts ought to have relied upon the presumption that possession follows title, and that the decision in Raja Shiva Prasad Singh V/s. Hira Singh [1921] 6 Pat. L. J. 478 which is also reported in 62 I. C. 1, is not correct. The Subordinate Judge in para. 7 of his judgment remarks: Relying therefore on the Full Bench decision of the Patna High Court reported at p. 1 in Raja Shiva Prasad Singh V/s. Hira Singh [1921] 6 Pat. L. J. 478 where it was held that in a suit for ejectment where the evidence of possession within 12 years of the suit is found to be equally valueless on both sides, the plaintiff has failed to satisfy the burden of proof cast upon him of proving his possessions within that period by proving merely that title at some antecedent period existed in him.

(3.) This finding, Mr. Venkatachari contends, is an unsatiafactory one and inasmuch as the evidence let in on both sides was unsatisfactory, the Court ought to have drawn the presumption that possession follows title and should have given a decree to the appellant. The question for decision is in what cases would the Court be justified in relying merely upon the presumption that possession follows title and giving a decree to the plaintiff, when the suit is one for possession of property on the allegation that the plaintiff was dispossessed within 12 years of the suit. In other words, whether the Court would be justified in a case falling under Art. 142 of the Limitation Act to rely merely upon the presumption of law as to possession, when the plaintiff has not satisfactorily made out dispossession within 12 years. The onus being upon the plaintiff to make out possession and dispossession within 12 years, if he is unable to discharge the burden, the Court ought to dismiss the plaintiff's suit. In a case where the defendant does not adduce any evidence but puts the plaintiff to proof, if the plaintiff's evidence is unsatisfactory and the Court is not in a position to accept it, could it be said that, relying upon the presumption of law as to possession it is bound to give a decree in plaintiff's favour. I think each case would depend upon the nature of the property in dispute and the nature of the possession which the plaintiff is bound to prove. In a case where the plaintiff is not able to prove effective possession as in the case of an open site on which anybody could walk or throw rubbish or stack temporarily firewood, gravel or anything else like it, the Court would be justified, where the defendant does not adduce satisfactory evidence as to possession, in relying upon the presumption of law as to possession following title and giving a decree to the plaintiff on proof of his title and also in eases where the plaintiff proves his title but cannot prove effective possession as in the case of forest lands or vast wastes, the Court would be justified in relying upon the presumption of law alone as to possession and giving a decree to the plaintiff. This also applies to cases where the evidence on the side of the plaintiff and on the side of the defendant is unsatisfactory, and the Court is not in a position on the evidence to come to a conclusion as to possession. The decision of the majority of the Full Bench in Raja Shiva Prasad Singh V/s. Hira Singh [1921] 6 Pat. L. J. 478 is: If it is found that the evidence produced by both the plaintiff and the defendant as to possession is unworthy of credit the plaintiff's suit must fail, inasmuch as the presumption which arises upon proof of title cannot be called in aid to give weight to evidence unworthy of credit any more than if no evidence at all had been given.