JAI CHAND Vs. GIRWAR SINGH

JUDGEMENT

(1.) This appeal must succeed. The plaintiff is the Zemindar of the village and his title has been held established in both Courts. He alleges that the defendant was put in possession for certain purposes, unnecessary to mention, by leave and license. The defendant denied the license in his written statement and set up an adverse title. Mr. Baldeo Ram for the defendant says that it is not proved that the license was ever granted or revoked. In our opinion that is now immaterial. The plaintiff based his case upon it and from the moment that the defendant repudiated the license and set up adverse possession, it was no longer possible for the defendant to rely upon the license or to deny its revocation. He was in the position of a trespasser without any defence to the suit, unless he succeeded in establishing his title by adverse possession.

(2.) With reference to that part of the case, I propose to cite two passages from the judgment of the lower Appellate Court. Having held that the plaintiff had shown title the learned Judge said: "It is equally obvious that the appellant failed to substantiate his allegation of adverse possession. It was not at all asserted when the title of the Zemindar was denied and his own asserted." This being so, there is no finding of adverse possession and in our opinion the defence fails and the plaintiff is entitled to succeed. The reason why the Judge in the lower Appellate Court gave judgment for the defendant is contained in the following words which I propose to quote, for the reason that in my opinion, a false impression of what is the actual law has prevailed for a very considerable time in the lower Courts. There is at least one authority in the Law Reports of this Province by which the lower Courts, unless they happen to be familiar with the Privy Council decisions, may reasonably hold themselves bound, and it is high time that a clear indication was given as to the actual law as it stands at the present moment in this Province, as throughout India upon this question. The learned Judge says: "In this case which was an action for ejectment, where the defendant advanced the plea of adverse possession, in my opinion, the onus lay on the plaintiff-respondent to prove not only his title but also his possession within twelve years of the suit. It was held in Inayat Husen v. Ali Husein 20 A. 182 : A.W.N. (1898) 19 : 9 Ind. Dec. (n.s.) 478 that the plaintiff should lay the foundation for his case by proving that he was in possession of the land within limitation." In our view that is not the law and never has been the law in this or in any other Province in India. The matter was recently made perfectly clear by an important decision of the Privy Council reported as Secretary of State v. Chelikani Rama Rao 35 Ind. Cas. 902 : 39 M. 617 : 31 M.L.J. 324 : 20 C.W.N. 1311 : (1916) 2 M.W.N. 224 : 14 A.L.J. 1114 : 20 M.L.T. 435 : 4 L.W. 486 : 18 Bom. L.R. 1007 : 25 C.L.J. 69 : 43 I.A. 192 (P.C.). The importance of that decision is this: The Madras High Court in that particular case had followed a view which the Madras Court had been taking from time to time since the year 1885; the same view apparently as that which is declared in Inaynt Husen v. Ali Husein 20 A. 182 : A.W.N. (1898) 19 : 9 Ind. Dec. (n.s.) 478, namely, that in a suit by an owner of property for possession, to which Article 144 of the Limitation Act applied, the plaintiff had to show what is called a subsisting title. The Privy Council overruled that decision and in doing so clearly overruled the three antecedent decisions of the Madras High Court cited and relied upon in the judgment of the Madras High Court which was under review, and they did so in language contained in the opinion of Lord Shaw which to our mind is as binding upon ? us and upon inferior Courts of this Province as any Statute can be. Their Lordships," says Lord Shaw, "are of opinion that the view thus taken of the law is erroneous. Nothing is better settled than that the onus of establishing title to property by reason of possession for a certain requisite period lies upon the person asserting such possession. It is too late in the day to suggest the contrary of this proposition. If it were not correct it would be open to the possessor for a year or a day to say: I am here, be your title to the property ever so good, you cannot turn me out until you have demonstrated that the possession of myself and my predecessors was not long enough to fulfil all the legal conditions. Such a singular doctrine can be well illustrated by the case of India. ...It would be contrary to all legal principles thus to permit the squatter to put the owner of the fundamental right to a negative proof upon the point of possession." We hold ourselves bound by that declaration of the law and compelled to say that Inayat Husen v. Ali Husein 20 A. 182 : A.W.N. (1898) 19 : 9 Ind. Dec. (n.s.) 478 and similar oases are no longer law, and inasmuch as the lower Appellate Court has held itself bound by Inayat Husen v. Ali Husein 20 A. 182 : A.W.N. (1898) 19 : 9 Ind. Dec. (n.s.) 478, we must reverse its decision.

(3.) I now propose, as shortly as I can in justification of our view that the law is really settled and has only become unsettled by misunderstanding, to mention the history of the authorities upon this subject. The point arose in Parmanand Misr v. Sahib Ali 11 A. 438 : A.W.N. (1889) 155 : 6 Ind. Dec. (n.s.) 708., where it was disposed of by a three Judge Bench. It is important to observe that the character of the suit in that case was one to which Article 142 of the Limitation Act would have applied. "There is a clear distinction," they said, as to the onus of proof between oases where a plaintiff sues for possession of land by redemption of mortgage and cases where the defence to a suit for possession of land is twelve years adverse possession by the defendant. In each case the plaintiff must plead his title, and if that title is in issue, he must make it out by at least prima facie evidence before the defendant can be put to proof of his defence. Where the defence is twelve years adverse possession, the defendant must plead and make out the title he alleges, and thus show that the title of the plaintiff, which otherwise had been proved or admitted, was lost."