JIRA BEWA Vs. UMA CHARAN SAHA

JUDGEMENT

(1.) This appeal arises out of a suit in which the plaintiffs sue for khas possession of Survey Plot No. 201 of Mouza Tarak Baria on declaration of title. The plaintiffs claim the land as owners of Touzi No. 247. The defence is that the defendants hold the land as tenants under the owners of Touzi No. 1068 in the same mouza. There was a rehearing of the suit on remand and the Courts below have now found that the plaintiffs have title to the land in suit and further that they wore in possession within twelve years of the suit. They have expressly found that the land was first cultivated by the defendants in 1320 and that the adverse possession of the defendants did not begin before that date. In the result the Courts below have found that the plaintiffs suit is not barred by limitation. In the present appeal by the defendants the only point that is urged is the point of limitation. It is contended that the learned Court of appeal below has decided this question from a wrong point of view, that it should have held that the onus of proof that the plaintiffs were in possession within 12 years of the suit was upon them and that they having totally failed to discharge that onus, the suit was barred by limitation.

(2.) The learned Subordinate Judge has dealt with the question in this way: he fully agreed with the original Court and found that the plaintiffs had title to the land in suit. Then he says: Now to see whether the plaintiff's title has been barred by adverse possession of the defendants.

(3.) Then he goes on to discuss the evidence on the side of the defendants. He finds first that the defence is not supported by the settlement khatian. Then he discusses three Chittas of 1289, 1291 and 1315 of the owners of Touzi No. 1068 and he finds that they do not show that the defendants exercised any act of possession in those years. As already mentioned, the conclusion that is come to is that the plaintiffs story that the land was first cultivated by the defendants in 1320 is true; before that it was lying waste. It is contended on behalf of the appellants that the learned Subordinate Judge should have thrown the onus upon the plaintiffs to prove that they were in possession within 12 years before the suit. The onus is undoubtedly upon the plaintiffs. But, when evidence has been gone into that onus may be discharged by reference to the evidence on either side including the evidence that has been adduced for the defence. In the present case it has been found as a matter of fact that the land was patit up to 1320 and that the defendants first cultivated in that year. The learned advocate for the appellants has referred to the "case of Rakhal Chandra Ghose V/s. Durgadas Samanta A.I.R. 1922 Cal. 557. But in that case a tank was excavated by the defendant more than 12 years before the suit and prior to that cultivation was being carried on by certain persons with whom the land had been exchanged by the defendant. Reference has also been made to the case of Mohini Mohan Roy V/s. Promoda Nath Roy [1896] 24 Cal. 256. In that case the finding of fact were held to be insufficient and the case was remanded for further hearing. It is contended that the learned Court of appeal below should have considered whether the plaintiff had succeeded in showing that the land is incapable of enjoyment. I doubt if any land is altogether incapable of enjoyment. But in any case I do not think that it is necessary that, before plaintiff can raise in his favour the presumption that possession follows title, he must show that the land was incapable of enjoyment. He can get the benefit of that presumption if he succeeds in showing, even by the evidence on the side of the defence, that as a matter of fact no act of enjoyment has been exercised. This is consistent with the ruling in the case of Rakhal Chandra Ghose V/s. Durgadas Samanth A.I.R. 1922 Cal. 557. I may also refer to the case of Gopal Chandra Maiti V/s. Sm. Manmohini Dasi . There it was remarked: In the case of jungle land, for example, it is not enough for the plaintiff to prove his title but he can make a case by showing as an additional fact, either that the land in question was incapable of possession by anyone, or that in fact no "one was interfering with his right. It is possession, not user, that has to be shown.