MOHIMA CHUNDAR MOZOOMDAR Vs. MOHESH CHUNDAR NEOGI

JUDGEMENT

(1.) THIS is an appeal from a decree of the High Court of Bengal dated the 6th of March, 1886, reversing a decree of the lower Court of the 10th of June, 1884. The action in this case was brought to recover possession of certain lands which need not be particularly described. It is sufficient to say that they are lands in the possession of the Respondents. A great deal of evidence has been given on the one side and the other as to the original title to these lands which were claimed by the Plaintiffs as part of "Rajapore," and by the Defendants as part of "Machuakandi." It appears to be unnecessary to go into that title. The question is whether, assuming the Plaintiffs to have been at some time lawfully in possession, the plaint which was filed on the 30th of July, 1883, was filed within twelve years as required by the 42nd article of the Limitation Act of 1877, from the date of their did-possession or discontinuance of possession.

(2.) IT is conceded by the Plaintiffs that in fact they were dispossessed, or their possession was discontinued from the year 1875, a period of eight or nine years prior to the bringing of this suit, and that the Defendants have ever since been in undisturbed possession; but they allege that they were in possession within four years or more immediately prior to that date.

(3.) NOW , merely making a short comment on the first passage which has been just read, it appears to their Lordships that the question for decision is not whether or not the title of the Defendants was created just after the disturbance or otherwise, but when were the Plaintiffs dispossessed or when did they discontinue possession? The Plaintiffs by their own witnesses have admitted, in fact, that their possession was discontinued, at all events, in July, 1875. By one of their witnesses, their principal witness, gomashta Panaulla, it appears that in fact they were dispossessed in the year 1873. Many witnesses were examined on behalf of the Plaintiffs in this case, to prove their possession within the four years prior to 1875, but it is not necessary to go through their evidence in detail. These witnesses may be grouped in fact into two classes: witnesses who either are or have been in the employment of the Plaintiffs, or witnesses who have been tenants upon the lands-witnesses who in fact had been dispossessed by the Respondents, whose evidence therefore, when it has to be balanced against other evidence of a contrary tendency, is subject to the remark that it is in accordance with their interests. It is a very singular fact in this case that there appears to be no documentary evidence whatsoever in support of the case which has been made by the Plaintiffs here, to show their possession or their receipt of rent for a period within twelve years before the time when the action was brought. Many documents were proved in support of their title to the lands some years previous to that date, but none to prove their possession. The statement by the witnesses in reference to the cyclone in the year 1872 and the destruction of their house and the place where they alleged all the papers were kept, and the scattering of those papers, is certainly one which cannot be relied on in a case of this kind as proving that documentary evidence of value in support of their possession had ever existed, nor as affording a sufficient reason for its non-production. It is also a singular circumstance in reference to the destruction of their cutchery house by the cyclone in the year 1872 that all the earlier papers, namely, the papers which were referred to at great length in the case as proving the title of the Plaintiffs as distinguished from their possession are all forthcoming. How it is that they were not destroyed with all the other papers in that cyclone is not explained, but it is a remarkable thing, and throws the greatest possible doubt and suspicion on the allegation in reference to the destruction of the papers, that papers of that class should be all forthcoming, and that the material papers, those relating to possession, are not produced at all. Bearing in mind that the lands are all cultivated and in the possession of tenants, there is also another class of papers which certainly ought to have been produced, and have been either in the possession of the Plaintiffs, if they really existed, or in the possession of their tenants, but which have not been produced. These papers are, amongst others, the receipts for the rents alleged by the Plaintiffs and their tenants to have been paid for the years between the cyclone of 1872 and the year 1875, when they allege their possession first determined; these, although alleged to exist, were not produced. The learned Judge then says: "When I showed above that the Plaintiffs are the rightful owners of the disputed land, it is for the ryot defendants to show that they are entitled to retain possession of these lands." That, as a proposition of law, is one which hardly meets with the approval of their Lordships. This is in reality what in England would be called an action for ejectment, and in all actions for ejectment where the Defendants are admittedly in possession, and a fortiori where, as in this particular case, they had been in possession for a great number of years, and under a claim of title, it lies upon the Plaintiff to prove his own title. The Plaintiff must recover by the strength of his own title, and it is the opinion of their Lordships that in this case the onus is thrown upon the Plaintiffs to prove their possession prior to the time when they were admittedly dispossessed, and at some time within twelve years before the commencement of the suit, namely, for the two or three years prior to the year 1875, or 1874, and that it does not lie upon the Defendants to show that in fact the Plaintiffs were so dispossessed.