Norman Macleod, Kt., C.J.
1. The plaintiff sued the Secretary of State for a declaration, an injunction, the refund of certain payments made and costs as stated in the plaint. He claims to be the owner of a certain gabhan in the village of Vadadla in the Broach District which he alleges came to him on partition of joint family property. He says that he built a house on the gabhan and that the said house is still in existence, but in 1912 some of his enemies made a false application to Government and there was a departmental inquiry and the District Deputy Collector held that the site belonged to Government and consequently the plaintiff was ordered to pay Rs. 3-14-8 as rent and local fund cess and Rs. 4 as fine, and was further ordered to pass a lease, and failing compliance the Government was to take possession of the site. Thereupon he made payments under protest, while appeals to the Collector and to the Commissioner and finally to the Government of Bombay were dismissed. He prayed, therefore that the Court might be pleased to declare that the house site was of the ownership of the plaintiff and that the orders passed by the Government officers might be cancelled. The defendant contended that the plaintiff had recently encroached upon the plaint gabhan by constructing a house thereon, that no title had been acquired by him by adverse possession, that the inquiry made by the Revenue Officers was proper and legal and therefore the suit ought to be dismissed.
2. The learned trial Judge held that for the plaintiff to succeed he had to prove adverse possession which in the case of crown lands was for a period of sixty years. The plaintiff had only proved twenty years. He, therefore, dismissed the suit.
3. In appeal reliance has been placed on the decision of this Court in Hanmantrav v. The Secretary of State for India I.L.R(1900) Bom. 287. In that case Mr. Justice Whitworth dissented from Sir Lawrence Jenkins, and on a reference to Mr. Justice Ranade that learned Judge agreed with the conclusion of the Chief Justice although not on the same grounds. Mr. Justice Ranade considered that the plaintiff' had not only possession, but possession accompanied with proof of title sufficiently strong to shift the burden of proof; that the plaintiff's possession was not wrongful and was founded on a prima facie title which was to be protected under Section 110 till defendant showed a better title. Sir Lawrence Jenkins referred to the case of Gangaram v. Secretary of State for India as distinctly showing that even in the case of a village site Government cannot rely on any general presumption and that as against the party in possession it must show title. The judgment of Mr. Justice Jardine in that case is a very short one and hardly gives one reason for thinking that the question whether Government could rely on any general Secretary presumption had been fully argued. In any event that question is not dealt with in the judgment which merely states as follows :
The plaint prayed that the Court would declare that the defendant had no title, and that the plaintiff had a title to the property in dispute. The learned Judge found, that the plaintiff had not proved his title; and this finding has not been contested, here. We are of opinion that the Judge was right in refusing the declaration of title.... The plaint, however, contained a prayer that the plaintiff might be awarded any other relief to which he might be entitled. If he had made reference to Section 42, ill. (g), of the specific Relief Act, or if the Court had noticed that illustration which refers to suits brought for confirmation of possession, it is probable that an issue would have been raised as to whether the plaintiff was entitled as against the defendant to be retained in possession. There is no evidence, on the record, of the defendant's title, and it is found by the Judge that the plaintiff has held possession for at least ten years and has built a shed on the land. These facts appear to us to bring the case within the ruling of their Lordships of the Privy Council in Ismail Ariff v. Mahomed Ghouse . We, therefore, modify the decree of the District Judge and further declare that the plaintiff is lawfully entitled to possession of the land in suit and the shed thereon'. Therefore it cannot possibly be said that that is a very satisfactory judgment on the question Whether in the case of an unoccupied village site the general presumption of title is with Government. Nor was any reference made of the Land Revenue Code which clearly shows that all unoccupied sites are the property of Government unless an individual can establish in his own right a title to such unoccupied property. A very similar question was dealt with by the Privy Council in Secretary of State for India v. Ghelhkani Rama Rao I.L.R(1916) Mad. 617. The question there was whether the Secretary of State was entitled to incorporate the lands in dispute into a reserved forest under the Madras Forest Act, such lands being islands formed in the bed of the sea near the mouth or delta of the river Godavari. The High Court of Madras held that 'though the title was originally in the Crown, still, as the possession of the claimants for twenty years prior to the notification was found, it rested upon the Crown to prove that it had a subsisting title by showing that the possession of the claimants commenced or became adverse within the period of limitation, i. e., within sixty years before the notification.' Their Lordships of the Privy Council were of opinion that' the view thus taken of the law was erroneous.' Their Lordships said : ' Nothing was better settled then that the onus of establishing title to property by reason of possession for a certain requisite period lies upon the person asserting such possession. It is too late in the day to suggest the contrary of this proposition. If it were not correct it would be open to the possessor for a year or a day to say 'I am here; be your title to the property ever so good, you cannot turn me out until you have demonstrated that the possession of myself and my predecessors was not long enough to fulfil all the legal conditions ' '. Therefore it seems to me that there is no force in the argument that Section 110 of the Indian Evidence Act must be applied and that because the plaintiff showed he had been in possession for a period of twenty years, the onus was then thrown on the Secretary of State of proving that the plaintiff was not the owner. That would be, as far as I can see, going directly against the dictum of the Privy Council I have just referred to. The Secretary of State is able to show by the general law that he is the owner of the land in question and in order to oust him the plaintiff in this case has to prove either that he has got a title better than the title of the Secretary of State or that he has obtained a title by adverse possession, that is to say, by possession for sixty years.
4. In my opinion, therefore, the appeal fails and the suit must be dismissed with costs.
5. I agree. I do not think that Hanmantrav v. The Secretary of State for India I.L.R (1900) Bom. 287can be considered as a conclusive decision on the question whether mere possession of land that appears to have been formerly unoccupied throws the onus of showing a title upon the Secretary of State. There was a disagreement on this point between the two learned Judges who first heard the appeal, and the referring Judge, Mr. Justice Ranade, though he concurred with the Chief Justice in disposing of the appeal in favour of the plaintiff in that case yet differed from him on the important point whether the possession entitling the plaintiff to defeat Government's claim need be possession according to title or might be possession quite independent of any such question of title. Mr. Justice Ranade held that, though the plaintiff may rely upon his previous possession, it must be of such a character as leads to a presumption of title; that mere previous possession less than the limitation of law requires is insufficient except in a possessory suit; and that mere wrongful possession is insufficient to shift the burden of proof. Sir Lawrence Jenkins on the other hand Faweett J. h. eld that Section 110 of the Indian Evidence Act obviously does not require possession according to title. This difference of opinion is referred to in Ameer Ali's Law of Evidence in British India, 6th Edition, page 698, and deprives the decision of any effect as a binding judgment on the main point under discussion.
6. In the present case we have the fact that the land in dispute is a gabhan or village site and it has long been asserted by Government that according to the custom of the Country the proprietary right in any village site vests in Government unless it has been unmistakeably purchased : see the Circulars referred to in Mr. Joglekar'a Land Revenue Code, page 57. This assertion is supported in this case by the existence of the gabhan. Register of 1866, Exhibit 78. For unless Government were interested in such village sites, there would be no reason for them to keep a register tabulating such of these sites as belonged to particular persons in the village. Then we have Section 37 of the Bombay Land Revenue Code, which, in my opinion, undoubtedly does put Government on a superior footing to a private individual in regard to a claim to lands which originally were waste or unoccupied. The evidence in this case shows that the particular site was waste or vacant until at any rate 1898. The learned District Judge has disbelieved the evidence that plaintiff adduced to show that previously to his building a house there were the ruins of a wall upon it. He has also believed the defendant's evidence that the site was formerly an open space and was not used by the plaintiff before it was built upon by the latter. No attempt has been made before us to dispute these findings. In these circumstances I think a legitimate presumption arises that the title to this particular site vests in Government under the old customary law and Section 37 of the Bombay Land Revenue Code, and the presumption displaces the original presumption arising in favour of the plaintiff under Section 110 of the Indian Evidence Act. Accordingly I think the District Judge came to a right conclusion and 1 agree in dismissing the appeal with costs.