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Mahamadsaheb Ibrahimsaheb Vs. Tilokchand Abheerchand Marwadi - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtMumbai
Decided On
Case NumberSecond Appeal No. 26 of 1921
Judge
Reported in(1922)24BOMLR373; 66Ind.Cas.764
AppellantMahamadsaheb Ibrahimsaheb
RespondentTilokchand Abheerchand Marwadi
DispositionAppeal dismissed
Excerpt:
.....possession under that title, than the general presumption of law is that possession goes with the title.;possession of open sites goes naturally with the possession of the property to which they adjoin. if the defendant asserts his rights over those sites, he must show, in the absence of any evidence, that the sites ceased to be appurtenant to the property and that he has been in possession adversely against the owner of the property. in such a case, the fact of the plaintiff's title comes to his aid with greater force; and unless the defendant can show that he has been in possession adversely to the plaintiff' for more than twelve years, the plaintiff will be entitled to a decree. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes,..........charged in the magistrate's court.6. now a reference to the map in this case would show that the plaint sites lie adjacent to and appurtenant to the shop which was purchased by the plaintiff together with the sites and it certainly would not be necessary for him to preserve evidence that ever since the date of his purchase he was in active possession of those open sites. possession of those sites would naturally go with the possession of the shop, and when the defendant asserted his right over the open sites he would have to show in the absence of any evidence that these sites ceased to be appurtenant to the shop, and that he had been in possession adversely against the owner of the shop. therefore this is one of those eases in which the fact of the plaintiff's title comes to his aid.....
Judgment:

Norman Macleod, C.J.

1. The plaintiff tiled this suit to recover possession of the two open sites described in the plaint. He alleged dispossession by the defendant unlawfully about three years prior to the suit. The defendant alleged that the plaintiff was not the owner of the plaint property; that he had never been in possession or enjoyment of it; that the defendant had been in possession for many years as owner; that the suit was time-barred; and that the cause of action did not accrue in 1913. The main issues were: (1) Does the plaintiff prove that the plots in suit were purchased by him at the auction sale in 1893; and (2) Is it proved that the plaintiff was in possession within twelve years before the suit The first issue was found by the trial Court in the affirmative, the second, in the negative. The result was that the suit was dismissed.

2. In appeal the learned Judge was of opinion that the evidence of the witnesses on both sides was unworthy of credit. But the plaintiff having established his title over the plaint property he could rely upon the presumption that possession goes with the title. There being no satisfactory evidence in rebuttal the presumption must be given effect to.

3. This raises a question which has often been discussed in these Courts, and eventually it may have to come up for decision before a Full Bench No doubt if the suit comes under Article 142 of the First Schedule of the Indian Limitation Act time begins to run from the date of the dispossession. But if the plaintiff alleges he is dispossessed within twelve years of the suit, then the question must arise, according to the circumstances of each case, how far the plaintiff has correctly fixed the date of dispossession, and how far the onus lies on the defendant to show that that date was wrong. I may refer to Secretary of State for India v. Chelikani Rama Rao and Kuthali Moothavar v. Peringati Kunharankutty (1921) L.R. 48 I.A 395 where their Lordships said on the question of the onus probandi in cases where title has been proved :

Standing article in 'A' the alleged adverse possestion of 'B' must have all the qualities of adequacy, continuity and exclusiveness which should qualify such adverse possession. But the onus of establishing these things is upon the adverse possessor.

4. We take it that the general principle is, as laid down by the Privy Council in Rani Hemanta v. Maharaja Jagadindra : (1906)8BOMLR400 that it is for the plaintiff in a suit for ejectment to prove possession prior to the dispossession which he alleges. At the same time, on this question of evidence the initial fact of the plaintiff's title comes to his aid, with greater or less force according to the circumstances established in evidence. If it is proved that the plaintiff has title and obtained possession under that title, then the general presumption of law is that possession goes with the title.

5. In Ganpati v. Raghunath I.L.R. (1909) 33 Bom. 712; 11 Bom. L.R. 1087 the plaintiff sued to have it declared that the land described in the plaint belonged to him and to recover damages from, the defendant for wrongfully taking possession of it, and for possession. The learned Chief Justice at p. 717 after referring to the evidence with regard to possession, which had been found to be unsatisfactory, said:

Upon that finding as to the present state of facts and having regard to the statement of the defendant's father to which we have already referred, we have to consider whom the possession of the vacant laud must be presumed to have been with, in the absence of direct evidence. Now it is held in the case that the title to this land was in the plaintiff, and it is held that the defendant has made no permanent use of it inconsistent with its being the plaintiff's land. That being so, a case is made out for the application of the presumption stated by their Lordships of the Privy Council in Runjeet Ram Panday v. Goburdhun Ram Panday (1873) 20 W.R. 25 that possession goes with title. No contrary presumption adverse to the plaintiff can, we think, arise from the wrongful acts of the defendant's father in 1880, which were promptly repudiated by him when he was charged in the Magistrate's Court.

6. Now a reference to the map in this case would show that the plaint sites lie adjacent to and appurtenant to the shop which was purchased by the plaintiff together with the sites and it certainly would not be necessary for him to preserve evidence that ever since the date of his purchase he was in active possession of those open sites. Possession of those sites would naturally go with the possession of the shop, and when the defendant asserted his right over the open sites he would have to show in the absence of any evidence that these sites ceased to be appurtenant to the shop, and that he had been in possession adversely against the owner of the shop. Therefore this is one of those eases in which the fact of the plaintiff's title comes to his aid with greater force as far as the evidence goes with regard to the possession of the open sites; and eliminating all the oral evidence on both sides as being unsatisfactory, (and naturally, considering the position of these open sites, and the difficulty of proving active user, it would be unsatisfactory), we think the learned Assistant Judge was perfectly right in holding that possession went with the title. Therefore, unless the defendant could show that he had been in possession adversely to the plaintiff for more than twelve years, the plaintiff would be entitled to a decree. The decree of the lower appellate Court is varied by eliminating the direction as to past mesne profits. In other respects the decree is confirmed and the appeal dismissed with costs.


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