1. The main question in the appeal to the District Court was, as is stated by the District Judge, whether the defendant has been in possession, and, if so, how long, and whether adversely, of the land claimed by the plaintiff in this suit.
2. The question whether possession is adverse or not is sometimes one of simple fact, but it may be a question of law or a mixed question: see Lachmeshwar Sing v. Manowar Hossein 19 C. 253; 19 I.A. 48
3. In deciding the question the District Judge appears to have based his conclusion upon two circumstances. First, he says that in 1880 there was a starting point of adverse possession, because the defendant's father pulled down the plaintiff's house and expelled him; and, secondly, he says, that at the time of his view of the site, towards the end of 1907, the land in dispute was enclosed so as to form part and parcel of the defendant's premises and is actually part of the plinth of his house.
4. It does not appear to us that those two circumstances standing by themselves can in this case afford a safe basis for the conclusion that the defendant has been in adverse possession, for, as is stated in the judgment of the first Court, the defendant's father was punished for pulling down the plaintiff's house in 1880. The judgment of the Magistrate, filed as Ex.--55, shows that th accused Anant admitted in that case that the house belonged to the minor, that he had pulled it down and he said that he would get it built again. In face of this admission, which we take as an admission that Anant would not wrongfully claim the land from the plaintiff but would restore it to his possession with a new house upon it, we are unable to agree with the District Judge that there is a good starting point for a claim of adverse possession, and in the absence of any finding of fact by the District Judge as to positive acts of exclusive possession by the defendant for the statutory period prior to suit, we are unable to accept the opinion expressed by him that the plaintiff has been out of possession and that defendant in possession since 1880.
5. We must, therefore, remand the case to the District Court for a fresh finding upon the issue.
6. Whether the defendant has been in possession, if so, how long, and whether adversely?
7. The finding must be returned within two months. Parties should not be allowed to adduce any fresh evidence.
8. In this case the plaintiff sues to have it declared that the land described in the plaint belongs to him and to recover damages from the defendant for wrongfully taking possession of it. He alleged that the defendant took possession of it wrongfully two moth before suit.
9. The plaintiff obtained a decree in the first Court but in the lower appellate Court on an issue, which raised substantially the question, whether the plaintiff or the defendant had been in possession of the land prior to the alleged date of dispossession by the defendant, the learned Judge found that the defendant had been in possession.
10. We were not satisfied with that finding and, therefore, remanded the case again to the lower appellate Court for a fresh finding as to possession. On the facts found now as to the nature of the property and after perusal of the judgment of the Magistrate in a criminal case instituted in 1880, which contained certain statements made by the defendant's father, we are of opinion that the issue as to possession ought to be decided in favour of the plaintiff. The criminal proceedings to which we have referred were instituted by the plaintiff's mother in consequence of the defendant having committed certain wrongful acts upon the plaintiff's property, and pulled down part of the plaintiff's house. On the charge of mischief, the defendant pleaded that he had merely entered upon the house of the plaintiff because it had tumbled down and he had to repair it. But he admitted that he had no interest in the house which belonged to the plaintiff who was separate from him.
11. Now the house in question stood in a walled compound which contained also the house of the defendant. It appears that the plaintiff's house was not re-built after it had been pulled down in 1880 and the District Judge finds as follows:
The house originally belonging to plaintiff and defendant's house, originally formed one self-contained property isolated on all sides from other property by boundary walls. These boundary walls are not new, though one has been repaired within the last ten years. The position of things is such that any person owning the only residence in the enclosure must make use of the whole enclosure including the property claimed by the plaintiff. To this extent defendant is in possession. He has made no permanent use of it inconsistent with its being the plaintiff's or any one else's land, and therefore had it not been for its isolation and inclusion in defendant's property, I should have been inclined to hold as is so often the case in the country with townlets, that no one was in exclusive possession.
12. 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 land 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. Goburdhan Ram Panday 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. For, as observed by their Lordships of the Privy Council in The Trustees Executors and Agency Company v. Short (1888) 13 App. Cas. 798; 58 L.J. 4; 59 L.T. 677; 37 W.R. 433; 53 J. p. 132:
If a person enters upon the land of another and holds possession for a time, and then, without having acquired title under the statute, abandons possession, the rightful owner, on the abandonment, is in the same position in all respects as he was before the intrusion took place. There is no one against whom he can bring an action. He cannot make an entry upon himself. There is no positive enactment; nor is there any principle of law which requires him to do any act, to issue any notice, or to perform any ceremony in order to rehabilitate himself. No new departure is necessary. The possession of the intruder, ineffectual for the purpose of transferring title, ceases upon its abandonment to be effectual for any purpose. It does not leave behind it any cloud on the title of the rightful owner.
13. Such use as the defendant is held to have made of the vacant ground of the plaintiff since the year 1880 is no evidence of adverse possession: see Framji Cursetji v. Goculdas Madhowji 16 B. 338
14. We, therefore, reverse the decision of the District Judge and restore that of the Subordinate Judge.
15. Plaintiff to have costs throughout.