Norman Macleod, Kt., C.J.
1. The plaintiffs sued for an injunction against defendants restraining them from obstructing the plaintiffs or their men in the enjoyment of the plaint land. It was alleged that the plaint land belonged to plaintiff No. 1, and was in her vahivat; that her husband held are enjoyed the land as remuneration for his services as Sauadi; that defendant No. 1 had no right to' it; that the services were recently stopped and the land shown in attached Sanadi land; that the Khata was changed to the name of plaintiff' No. 1; and that full assessment was collected from her.
2. Defendants Nos. 1 and 2 by their written statement contended that the plaint land was assigned for Sanadi services and was in the possession of defendant No. 1; that defendant No. 1 had worked therein; that the plaintiffs were not in possession of it; that the land was the ancestral land of the family; that Lingoo and his brothers, Sakharam and defendant No. 1 divided the land; that Lingoo was being paid Rs. 20 for his services as Sanadi by his brothers; that on his death in 1907 defendant No. 1's son Kallappa was appointed a Sanadi by Government and was given the whole land for his remuneration by Government; that Kallappa got no money for his remuneration; that the services were stopped in 1911; that full assessment was being collected from Kallappa after the land was attached; that Kallappa performed the services whenever necessary till his death in 1914; that since then defendant No. 1 performed the services whenever necessary; that as the land was Sanadi whoever performed the services was the owner of the land; that the land became Kallapa's as the services were stopped when he was performing them; that thereafter defendant- No. 1 was the owner as he performed the services; that after Sakharam and Lingoo died in 1907, Sakharam's son, Rama, and Lingoo's widow Balabai (plaintiff) began to reside in defendant No. 1's house; that plaintiff began to manage the affairs of the family and took care of Rama; and that as she was the elderly person in the family and was managing the affairs defendant No. 1 consented to the change of Khata to her name.
3. The first issue was: 'Dues plaintiff prove that she has possession of the suit land ?' That was found in the affirmative. It is unfortunate that a further issue was not raised, whether defendants proved that they had title to the land because it would be open to the defendants in a suit of this character to resist an injunction being passed against them if they could show that the plaintiff in possession asking for an injunction had no title.
4. In Hanmantrav v. Secretary of State for India I.L.R.(1900) 25 Bom. 287 : 2 Bom. L.R. 1111 it was held that the plaintiff being in possession (not shown to have wrongfully originated), such possession was good against the whole world except the person who could show better title, and that the burden of proving such title lay on the defendant. Mr. Justice Ranade said: -
When a person in possession of land has been dispossessed and sues to recover it, the fact of his previous possession will not entitle him to a decree unless ho sues under Section 9 of the Specific Relief Act...within six months of the date of dispossession. If he sues after the six months have expired, he must) prove prima, fade title, In such a case he is entitled to a decree unless a superior title is proved on the other side
5. In this case the plaintiff is not suing for possession after dispossession, but she has proved a prima facie title coupled with possession. Therefore she is entitled to be protected against disturbance by an outsider, unless such outsider proves that he has a better title than the plaintiff. If this decree were to stand the defendants would be debarred from proving that they had a good title against the plaintiff to the land in dispute. We do not think tint is consonant with justice, Consequently we must set aside the decree and remand the case to the lower Court, so that the defendants may have an opportunity of proving that they have a superior title to the land in suit. As however they are responsible for this issue not having been raised in the trial Court, the appellants must pay the costs of the suit in this Court and in the Court below. Costs in the trial Court will be costs in the cause. Liberty to both parties to adduce additional evidence on that issue.