M AZIZ UDDIN Vs. HAJI MAQBUL HUSSAIN

JUDGEMENT

(1.) This is an appeal under the Letters Patent by the defendant against the decision of a learned single Judge of this Court. It arises out of a suit brought against him by the plaintiff respondent for partition and separate possession over his share in the property described in the plaint, and for the closing of some windows and the opening of a door. The plaintiff claimed, in the alternative, that if it be found that the partition has already taken place, he may be awarded possession over the specific share owned by him. The defendant contended that the property had already been partitioned and that the suit was time-barred. The trial Court found that the house of the plaintiff was separate from the rest of the house, that the suit was barred by Art. 142, Limitation Act, as the plaintiff had not been in possession within 12 years of the suit and that it was not barred by Order 2, Rule 2, Civil P.C. On appeal, the lower Court went into the question whether the suit was barred by Order 2, Rule 2, Civil P.C., and found that it was barred and dismissed the suit. On appeal, this Court found that the suit was not barred by Order 2, Rule 2. It remanded the case for rehearing by the lower Court. The lower Court reheard it and found that the suit was not barred by Art. 14.2, and gave a decree for relief (e) and in respect of the main door of the house. The decree of the lower Court was confirmed by the learned single Judge.

(2.) The only point that has been urged by the learned Counsel for the appellant is that the suit is barred by Art. 142, Limitation Act. lie has contended that the plaintiff has failed to prove any specific acts of his possession within 12 years, and the suit therefore must be dismissed under Art. 142. lie has relied on Bihdhyachal Chand V/s. Ram Gharib Chand and several other cases. These decisions are not relevant to the present case. The plaintiff has not come in this suit with the allegation that he has been dispossessed at any time by the defendant. On the other hand, he alleges that he has been in joint possession with the defendant over the property in suit. The decisions relied on by the learned Counsel deal with the cases where the plaintiff came with an admission of his dispossession at the time of his suit and an allegation that he had been dispossessed by the defendant within 12 years; and where it was found that the plaintiff had not been in possession within 12 years of the suit. The cases, where the controversy about possession is between only two parties, namely the plaintiff and defendant, and where the plaintiff admits the defendant's possession, but alleges that he was dispossessed within 12 years of the suit by the defendant and the defendant contends that he has been in possession for more than 12 years and the suit is time barred, stand on entirely a different footing. There, if one party is not in possession, the other party is or must be held to be in possession. So in such cases, if the plaintiff fails to prove that he was dispossessed within 12 years, the inevitable inference and finding must be that his dispossession took place and the defendant has been in possession for more than 12 years before the suit. It is in such cases that the plaintiff cannot be allowed to say that if he has failed to prove his possession by evidence, his possession must be presumed, as the title is with him, because in spite of his title the other party is found to be in possession. The presumption that possession follows title is rebutted by the fact that the defendant is found in possession.

(3.) It was further contended by the learned Counsel for the appellant that the case must be decided on the plaintiff's evidence alone and the defendant's evidence should not be looked at because the onus was on the plaintiff. This argument is not sound. There can be no question of any decision on the basis of onus of proof where both the parties produce evidence. It is the duty of the Court to arrive at a correct finding on the whole evidence before it. If there is any lacuna in the plaintiff's evidence but; it is supplied by the defendant's evidence, it would, be not only unfair, but would lead to injustice if the Court were to depend on the plaintiff's evidence only where the onus lay on him. It is however open to the defendant not to lead any evidence where the onus is upon the plaintiff but, after having gone into evidence, he cannot ask the Court not to look at and act on it. It is his evidence and he is bound by it. If the defendant does not produce any evidence and the plaintiff fails to discharge the burden that lay on him, his suit would fail, as there is nothing else on which the Court may record any finding.