Document Fragment View

Matching Fragments

"Assuming that there was no evidence worthy of credit on behalf of either party as to possession, which is what the District Judge found, and assuming, as it is assumed, and I think properly assumed in the judgment now under appeal, that the plaintiff in a suit for ejectment must prove not only his antecedent title but also his possession within twelve years of the suit then in the absence of any credible evidence as to possession I consider that the plaintiff must fail and that the presumption arising from title cannot be called in aid to give weight to evidence unworthy of credit any more than if no evidence at all had been given."

The correctness of the decision of the Full Bench is not in controversy; rather it has been assumed that this decision is correct and still holds the field. It is a well established rule of law that ordinarily in a suit for ejectment the plaintiff must prove not only his antecedent title and possession but also that he has been in possession within twelve years from the date of the institution of the suit. Such a suit clearly falls under Article 142 of the Limitation Act, and the plaintiff even with title must be unsuited if after his dispossession he had been out of possession for twelve years. The question is whether the doctrine laid down by the Full Bench applies to the facts of the present case, in other words, whether that doctrine governs all eases of possession after ejectment of the defendant, irrespective of the nature of the suit land, the claim laid by the plaintiffs, the nature of defence set up by the defendants and the evidence adduced by the parties. To be more precise, the question is whether it applies to a case where a person seeks to recover possession of the land lying within the ambit of his zamindary and the defendant does not plead an absolute title but claims only a limited interest of tenancy under him. Thus, the short question which the Ceurt is called upon to decide is whether in a suit for possession between landlord and tenant, Article 142 or Article 144 of the Limitation Act applies. Mr. N. L. Untwalia appearing for the appellants contended that even such suit is covered by the decision of the Full Bench in the case of Raja Shiva Prasad Singh (E), and accordingly Article 142 applies to the case. He argued that the decision in the case of Dhani Jha (B), above referred to, is correct and accordingly the plaintiffs must fail as they have failed to prove their possession within twelve years of the suit. Mr. Ganesh Sharma appearing for the respondents would have it that the proper Article is Article 144 and not Article 142. His contention is that the case of Raja Shiva Prasad Singh (E) is not a case between landlord and tenant, and the principle there enunciated should not be extended to cover a suit brought by a landlord for ejectment, of a person who claims to hold under him. He urged that the case of M. A. Rauf(A) above referred to was rightly decided, and the ratio there laid down applies to the present case. He referred to several decisions in which the decision of the Full Bench was not applied, I shall presently examine those cases.

13. In my considered judgment, the rule propounded in the Full Bench decision of Raja Shiva Prasad Singh (E) is not of universal application and should not be extended beyond the facts of that case, and the case of landlord and tenant is entirely different and does not come within the ambit of the doctrine therein laid down. The Full Bench decision dees not purport to lay down that in a suit for eject-ment on the ground of dispossession, the presump-tion of possession arising from admitted or proved title is not at all available. That decision has been distinguished in later decision of this Court, and paramountcy of title has been recognised in several cases. It is incontrovertible that ordinarily in a suit for ejectment the plaintiff must prove his antecedent title and possession within the statutory period. But cases may arise where possession may be inferred only from title and other circumstances of the case, even though the evidence may not conclusively establish actual physical possession. Only about three months after pronouncement by the Full Bench, Dawson-Miller, C. J., who delivered the majority judgment of the Full Bench, had to consider in the case of, A. I. R. 1922 Patna 432 (F), the extent and scope of the rule of law propounded by him therein. In the case of Tian Sahu (F) the plaintiff, who was the appellant in the High Court, purchased the land in suit from Mulehand Sahu in June 1917, and, according to his case, came into possession and was a few months later dispossessed by the defendant Matuk. The Munsif held that neither the plaintiff nor his predecessor Mulchand had in fact been in possession of the land at any period within twelve years antecedent to the suit, and he dismissed the claim. On appeal, the District Judge considered that the oral evidence of the parties as to possession was not satisfactory on either side, and he referred to certain discrepancies in the evidence which had been pointed out by the Munsif, and apparently the view which the District Judge arrived at was that, in so far as the oral evidence went, although he nowhere says that it was of no value, nevertheless, it was not such as without reference to probabilities and other circumstances arising in the case would be sufficient in itself to enable him to come to a satisfactory decision on the question of possession. The District Judge held that Matuk (defendant) entirely failed to prove the possession for twelve years before the suit. On the question of the plaintiff's title he came to the conclusion that as Mulchand's previous title and possession were admitted by Matuk, and as Mulchand admitted the execution of the kebala in favour of the plaintiff and as Mulchand had failed to prove that the kebala was void for any reasons and as Matuk had failed to prove adverse possession for twelve years, the appellant's (plaintiff's) claim should be decreed, and he allowed the appeal. From that decision the defendant appealed to this Court, and the appeal was heard before a single Judge. The learned Judge considered that the decision of the Full Bench of this Court in Raja Shiva Prasad Singh (E) governed the case, and relying upon that case he took the view that it was not open to the District Judge, who was the ultimate judge of the fact, to take into account either the probabilities of the case or any presumption that might arise in favour of possession remaining in the person who had proved his title. He, therefore, allowed the appeal and dismissed the plaintiff's suit. There was an appeal from this decision under the Letters Patent, and the judgment of the Bench was delivered by Dawson-Miller, C. J., who held that the finding in this case did not bring it under the rule laid down by the Full Bench in the case of Raja Shiva Prasad Singh (E). Explaining the significance of the Full Bench decision he observed as follows :

"The Full Bench case to which I have referred did not lay down the proposition that in no case could the probabilities and presumptions be taken into account. The rule there laid down was that it is only in cases where there is no evidence of the plaintiff as to dispossession or, what amounted in the opinion of the Full Bench to the same thing, where the evidence is valueless, that the plaintiff fails to make out his case by merely proving that he had an antecedent title and possession and it must not be considered that merely because where evidence was given by both sides and the learned Judge who had to determine the case had a difficulty upon that evidence or even considered that evidence not alto-gather satisfactory, that in such circumstances he was not entitled to give weight to the probabilities of the case or to any presumption which might properly arise from the fact that the plaintiff had previously been in possession and had title. I think it would be extending the doctrine laid down in that case too far if we were to say that merely because the Judge had some difficulty in arriving at a conclusion upon the evidence or that he did not consider the evidence altogether satisfactory, he was thereby precluded from looking either at the probabilities of the case as disclosed by other parts of the evidence or from the presumptions which might arise from the plaintiff's title".