1. This appeal arises out of a suit for the possession of survey Nos. 55 and 57. The argument has taken some time as it depends upon the question whether there is any evidence for the findings of the lower Courts. But the facts are not many, and may be shortly stated.
2. There is, first, a preliminary point, that, with regard to survey No. 57, there has been no notice issued by this Court of an appeal having been admitted, and the question has been raised before me whether an appeal can be admitted only as to part of the contentions of the parties. I shall deal with this matter after I deal with survey No. 55 which depends on the merits of the case.
3. The last undisputed owner of survey No. 55 was one Shankarsa. He died in 1915. It is not disputed that on November 3, 1909, Shankarsa made a gift of the property to his maternal nephew Madhusa (who is defendant No. 1 in the suit), and that Madhusa sold it on August 27, 1915, to the plaintiffs' father, who died in 1918. The question is whether the plaintiffs have a subsisting title in the property in which the title is proved to have devolved upon him through the sale-deed of August 27, 1915, the deed of gift, dated November 3, 1909, and ultimately by succession from his father. Both the lower Courts have held that the suit is barred under Article 142 of the Indian Limitation Act.
4. Article 142 of the Indian Limitation Act relates to a suit for possession of an immoveable property when the plaintiff while in possession of the property has been dispossessed or has discontinued the possession : such a suit must be brought within twelve years of the date of the dispossession or discontinuance.
5. Both the Courts have, therefore, rightly held that the plaintiffs must prove possession within twelve years of the suit.
6. Apart from the question of onus with which I shall deal presently, the evidence as regards the possession of the property consists, on the part of the plaintiffs, of a witness, Exh. 78, who stated that defendant No. 1, that is, the donee under the gift of November 3, 1909, was staying with Shankarsa, while Shankarsa was ill, for a year or a year and a half before his death ; and that for two years or two years and a half after the death of Shankarsa, defendant No. 1 was staying in his house. The Court of first instance did not attach much importance to the evidence of this witness. But the lower appellate Court, being misled by a clerical error, apparently read this evidence as referring to the possession of defendant No. 4 and not defendant No. 1 ; and, so reading, it said :-' It is proved that after the death of Shankarsa, defendant No. 4 was in possession, vide statement of Gyanaba, Exh. 78. 'Mr. Murdeshwar for the appellant very fairly did not press that the learned Judge must be taken as having accepted the deposition of the witness or that defendant No. 1 must, therefore, be considered to have been held to have been in possession ; but he pressed his case only to this extent that the learned Judge, being under some misapprehension as to the effect of the deposition, it cannot be taken that defendant No. 4 was in possession. He also relied in this connection upon the decision in Govind v. Vithal I.L.R. (1895) Bom. 753 that if the lower appellate Court misconceives the evidence in the case, it may be a ground for interference in second appeal.
6. This is the only evidence in regard to possession on which the plaintiffs can rely,-barring the evidence, to which I shall refer later, from the presumption that the possession must be taken to be where the title is.
7. On the other hand, it is not contended on behalf of the defendants that there is any evidence of possession on their part. The learned Judge does, no doubt, refer to two pieces of evidence as proving the possession on the part of the defendants. First, he refers to Exh. 4, which is the municipal register of property. Exhibit 4 is dated either September 14, 1926, or November 15, 1927. So far as survey No. 55 is concerned, it states that defendant No. 6 is the owner; and in the column 'Owner's name,' the name of defendant No. 6 is mentioned. Then under the column ' nature and origin of title ' it is stated ' By right of purchase. Sale by the 4th defendant on the 31st of May 1915.' Defendant No. 6 in his written statement denies all knowledge about the subject-matter of the suit. The learned Judge has referred to defendant No. 6's written statement in somewhat inaccurate terms. Then the entry in Exh. 4 also refers to survey Nos. 56 and 57, and refers to them as ancestral property, which is contradictory of the findings of both the Courts, in regard to survey No. 57 : survey No. 56 not being the subject-matter of the suit, there is no evidence on the point. It is not claimed that these entries are such entries as must be considered to be records of rights. They are entries in the municipal records. I need go no further than the facts to which I have referred, for proceeding on the basis that these entries are not of much value on the question of possession; and, indeed the learned advocate for the respondents did not claim that they furnished any evidence on the question of possession. But the whole argument proceeded on the basis that it may be taken that there is no evidence one way or the other, except the evidence in Exh. 78, such as it is, and the presumption that possession follows title.
8. That title ordinarily carries with it a presumption of possession has been laid down in Mahamadsaheb v. Tilokchand I.L.R. (1922) Bom. 920 : 24 Bom. L.R. 373 Rani Hemanta v. Maharaja Jagadindra : (1906)8BOMLR400 Runjeet Ram Panday v. Goburdhun Ram Panday (1873) 20 W.R. 25 Ramanathan Chettiar v. Lakshmanan Chettiar I.L.R. (1903) Mad. 622 and Madan Mohan Singh v. Braj Bihari Lal (1920) 5 P.L.J. 592 This is the converse of Section 110 of the Indian Evidence Act.
9. The learned advocate for the respondents stated his points, with reference to these cases, under two heads :-First, that under Article 142, the Privy Council have laid down in Dharani Kanta Lahiri v. Garbar Ali Khan (1912) 25 M.L.J. 95 that the plaintiff in such a case must affirmatively prove dispossession within twelve years ; and it is for him to prove the date of the dispossession or discontinuance of his possession,-from which it follows that he must prove prior possession. The answer to that is, that the plaintiff does prove possession by the presumption arising from his title: in the Privy Council case which is relied upon 'the plaintiffs failed to prove a title against the defendants' (p. 100).
10. The point is made very clear in the judgment of Chief Justice Black-burne in M'Donnell v. M'Kinty (1847) 10 Ir. L.R. 514 entirely concurred in by Baron Parke, and the Court of Exchequer in Smith v. Lloyd (1854) 23 L.J. Ex. 194 to which I will presently refer more fully. These cases are cited in Madan Mohan Singh v. Braj Bihari Lal. There, too, the defendant's argument was that (p. 593)
as the plaintiffs' suit was based on their allegation of prior possession lost by dispossession, it fell clearly within the scope of Article 142, and that consequently it was for the plaintiffs to prove not only their title to the land, but their subsisting title on the date on which they instituted the suit ; in other words, it was obligatory on the plaintiffs to prove that they were in possession within twelve years of the suit.
11. And Das J.'s short answer to the argument is (p. 593):
The starting point for limitation under Article 142 is the date of dispossession or discontinuance, not the date when the plaintiff ceases to occupy the land.
12. The parallel between that case and the present case is extremely close. The learned Judges of the Patna High Court have dealt with the argument that there was discontinuance of possession (in the case before them) as soon as the person ceased to occupy the land. In that respect, the present case is stronger. There is no evidence here that the person entitled to occupy the land ceased to occupy it. There is no evidence as to cessation of possession. Had the defendants proved that the plaintiff or the person entitled to possession was no more in possession, the position might have been different. But I need not consider such a case.
13. There might be several aspects that the case might take. The aspect taken by the present case is that we have no proof as to whether the real owners were in possession or whether somebody else was in possession, or whether anybody at all was in possession. With this distinction in mind I proceed to the quotation from the decision on which the learned Judges of the Patna High Court rely. That decision deals with 3 & 4 Will. IV, c. 27, Section 2, which enacts that.no Person shall...bring an Action to recover any Land. but within Twenty Years next after. the right accrued' and Section 3 which enacts that.when the Person claiming such Land, shall, in respect of the Estate or interest claimed, have been in Possession of such land,. and shall, while entitled thereto, have been dispossessed. or have discontinued such Possession, then such Right shall be deemed to have first accrued at the time of such Dispossession or Discontinuance of Possession.
14. Article 142 exactly corresponds to these sections. It was said by Blackburne C.J. in M'Donnell v. M'Kinty (p. 526):
The word 'discontinuance' I understand to mean an abandonment of possession by one person, followed by the actual possession of another person. This, I think, must be its meaning ; for if no one succeed to the possession vacated or abandoned, there could be no one in whose favour or for whose protection the Act could operate. To constitute discontinuance, there must be both dereliction by the person who has the right, and actual possession, whether adverse or not, to be protected.... In confirmation of these remarks, I may here refer to all the authorities which have been cited, and which prove, if proof was required, that actual possession is the object of the statute, and that to apply its provisions to any other case would be to violate its plain meaning and policy.
15. Then Baron Parke's words delivering the judgment of himself, Pollock C.B. and Alderson and Martin, BB. in Smith v. Lloyd (1854) 23 L.J. Ex. 194 are (p. 194 ):
We have not the slightest doubt that the title of the grantees of the mines is not barred in this case under the 3 & 4 Will. 4, c. 27, Section 3, for we are clearly of opinion that that statute applies not to cases of want of actual possession by the plaintiff, but to cases where he has been out of it, and another in possession for the prescribed time...we entirely concur in the judgment of Chief Justice Blackburne in M'Donnell v. M'Kinty, and the principle upon which that decision is founded.
16. This was said in a case where the question arose on these facts (p. 194):. a century ago, the owner of the fee simple of a close, with a stratum of coal and other minerals under it, conveyed the surface to one under whom the plaintiff claims reserving the minerals and a right of entry to get them to another under whom the defendant claims.
17. The question that arose was whether the right of entry was barred by simple non-user for more than forty years, no other person having worked or been in possession of the mines.
18. There is in the case before me no evidence as to who was in possession, -whether the owner or some third party, or no one at all. The presumption from ownership is that the owner is in possession ; and, therefore, the only evidence in this case is that the owner was in possession. That possession continued till there was 'abandonment of possession followed by the actual possession of another person'. The possession of the plaintiffs or their predecessor-in-title by reason of the presumption must be taken to have been from 1915 to 1918, and it was then for the defendants to prove that that possession of the plaintiffs was lost,-that the plaintiffs discontinued possession.
19. For these reasons, it seems to me, that on the evidence it must be taken to have been proved that the plaintiffs were in possession till the time of their father's death in 1918. It is not proved that there was any discontinuance of possession on their part or on the part of their predecessor-in-title, prior to 1918. From some time after 1918 the plaintiffs admit in the plaint that they were not in possession. It should, therefore, have been held that the suit was not barred by limitation. The appeal will consequently be allowed with costs throughout as far as survey No. 55 is concerned.
20. The preliminary objection to which I referred has reference to survey No. 57. The position is this. The learned advocate for the respondent admits that Mahamodsaheb v. Tilokchand I.L.R. (1922) Bom. 920 : 24 Bom. L.R. 373 applies to survey No. 57, inasmuch as it was an open site : he seeks to distinguish Mahamadsaheb's case from being applicable to survey No. 55, inasmuch as in survey No. 55 there is a house, whereas survey No. 57 is an open site : his argument is, that cases like Mahamadsaheb v. Tilokchand Ramanathan Chettiar v. Lakshmanan Chettiar and Madan Mohan Singh v. Braj Bihari Lal apply only to open sites, such as survey No. 57, but not to such a site as survey No. 55 which contains a house.
21. So that in regard to survey No. 57 practically it is not contested that the decision under appeal is erroneous.
22. The point then is whether having regard to the order admitting the appeal this appeal must be taken to be restricted to survey No. 55 or whether there is an appeal in regard to both the survey Nos., 55 and 57.
23. Under Rule 3 of the Appellate Side Rules, page 9, I refer the questions whether it is competent to a Court of Appeal under Order XLI, Rules 11 and 12, of the Civil Procedure Code, to restrict an appeal to some specified ground in admitting the appeal, and whether if an appeal is admitted the whole appeal and not only any selected part of the appeal is open to discussion. The first question was considered in Lukhi Narain Serowgy v. Sri Ram Chandra Bhuiya (1911) 15 C.W.N. 921 and answered in the negative.
24. On the decision of these questions by a division or other bench as the Chief Justice might direct, the matter will be again placed before me for final orders in respect of the appeal.
25. The learned advocates have very properly consented to this course being adopted for the purpose of a final decision being speedily arrived at.
26. For the decision of the full bench see below.
27. After the decision of the full bench the matter was placed before Tyabji J. on August 18, 1933, for final orders, when his Lordship delivered the following judgment.
28. In accordance with the decision of the full bench, the whole of this appeal is allowed with costs throughout. Barlee J.'s order cannot be construed as a dismissal of that part of the appeal which referred to survey No. 57 in respect of which no notice was issued.