LILKU MAHTO Vs. AMAR MAHTO

JUDGEMENT

(1.) The facts leading up to this appeal are that the plaintiff-respondent got a deed of ijara executed in his favour by Mt. Sarpato Kaur, widow of Sheobux Mahto, in whose estate she had the limited interest of a Hindu widow. In her lifetime the defendants-appellants brought a declaratory suit asserting that they were the nearest reversioners of Sheobux and that the deed being without consideration and not for necessity was not binding on them as reversioners after the death of the widow. The Subordinate Judge decreed their suit finding in favour of the alleged reversioners on both issues. In appeal (F.A. No. 225 of 1926) a Bench of this Court held that the plaintiffs of that suit were not the nearest reversioners of Sheobux Mahto and that the suit was not maintainable at their instance. Accordingly they dismissed the entire suit. The judgment was pronounced on 6th January 1929. Meanwhile the lady died in March 1927, and the defendants- appellants of the present suit dispossessed plaintiff-respondent in 1928, the judgment of the Subordinate Judge in favour of the defendants-appellants being at that time still in force. In 1929 the plaintiff tried to resume possession but was resisted, and on 14 January 1930 he brought the present suit to recover possession asserting his right to hold possession until repayment of the rehan money and redemption of the rehan.

(2.) The Subordinate Judge before whom the suit came for decision, found that the rehan deed of 23 May 1919 was genuine but not valid and for consideration, and that the defendants had dispossessed the plaintiff at a time when they had in their favour the decision of the Subordinate Judge in the earlier litigation but had in fact no title. He was of opinion that the plaintiff, not himself having title, could not succeed merely on the weakness of the defendants title unless he brought his suit within six months of the dispossession and in accordance with Section 9, Specific Relief Act. On this view he dismissed the suit. In appeal the Additional District Judge reversed this decision being of opinion that previous possession even without title and even for a period short of a statutory period of 12 years entitled the plaintiff to a decree for possession against a trespasser. Of the decisions relied on by the Additional District Judge the majority either proceed on or can be supported by the principle of Section 110, Evidence Act: When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.

(3.) There are, however, two decisions which at first sight appear to go further, namely Sahodra Kuar V/s. Gobardhan Tiwari 1917 Pat 546 and Bodha Ganderi v. Ashloke Singh 1927 Pat 1. In both these cases the decision in the plaintiff's favour was apparently based on the fact of his previous possession and not on the inference of the existence of a title drawn from the fact of that possession; but in Ranjit Singh V/s. Johri Singh 1929 Pat 601, which cites and follows Bodha Ganderi v. Ashloke Singh 1927 Pat 1 and other authorities, the decision is ultimately founded on Section 110, Evidence Acts with the observations: The plaintiff brings a suit in ejectment. It is quite true that ho can only succeed by the strength of his own title. He satisfies the Court of the fact that he was in possession of the disputed property before he was forcibly dispossessed. Section 110 assumes that he might be taken to be the owner till the contrary is established. It follows therefore that if the case attracts the operation of Section 110, Evidence Act, the onus must be upon the defendants to show that the plaintiff who has proved that he was in possession before his forcible dispossession is not entitled to the disputed property.