E.S. Venkataramiah, J.
1. Defendant 1 in Original Suit No. 367 of 1957 on the file of the Civil Judge. Junior Division, Bijapur, is the appellant in this second appeal.
2. The plaintiffs who are four in number filed the above suit for a declaration that they were the owners of two guntas of land in Survey No. 229 of Kunte village, Bijapur Taluk, on which there is a bund and for possession. It is stated that on the said bund, there are some trees which are fairly old. The case of the plaintiffs is that they had become the owners of the above extent of land Survey No. 229 by virtue of their right which they had acquired by adverse possession over the statutory period prior to some day in the month of May 1955 on which day the defendants dispossessed the plaintiffs. In support of the above case, the plaintiffs pleaded that Survey No, 229 which belonged to defendant-1 was at a higher level and survey No. 242 which belonged to them was at a lower level and but for the bund which was admittedly on survey No. 229, rain water which would fall on survey No. 229 would flow into survey No. 242 causing damage to them, and, therefore, in order to prevent such flow of water, their ancestors put up this bund in Survey No. 229 over 100 years ago and since then the said bund had been exclusively in the possession of the plaintiffs continuously, adversely and as of right.
The plaintiffs, therefore, prayed for a decree declaring their title to the said bit of land and for possession of the same. Defendant-2 has no interest in the land in dispute. Defendant-1 pleaded that his father purchased survey No. 229 in court auction and got possession of the same through court in the year 1943, and that he had been in possession of the entire survey No. 229 including the strip of land measuring two guntas on which the above bund was situated since then. It appears that there was some dispute regarding the boundary mark between survey No. 242 and Survey No. 229 sometime prior to May 3955 and the matter was referred to the survey authorities. After survey, it was found that the strip of land in dispute with the bund and the trees thereon was within survey No. 22. (229?) The plaintiffs thereafter instituted the present suit for declaration of their title and for possession on the basis of their title by adverse possession. The trial court after recording evidence and hearing both the parties, decreed the suit and against the judgment and decree, defendant-1 filed an appeal before the District Judge, Bijapur, who by his judgment dated 28-2-1961 modified the decree passed by the trial court holding that the bund in question was the common property of the plaintiffs and defendant-1.
Against that decision, a second appeal was filed before this court in Second Appeal No. 392 of 1961. This court set aside the judgment and decree of lower appellate court and remanded the case to the lower appellate court for deciding the case after taking into account the oral evidence which had been let in by the parties. After remand, the matter was again heard by the learned District Judge and he confirmed the judgment of the trial court decreeing the suit as prayed for. Aggrieved by the said judgment and decree, defendant-1 has filed this second appeal.
3. Sri Mandagi, the learned counsel for the appellant, contended that the lower appellate court was wrong in corning to the conclusion that the plaintiffs had proved their title by adverse possession. He urged that even if the entire oral evidence adduced by the plaintiffs was accepted, no case of acquisition of title by adverse possession had been made out by the plaintiffs and in support of this submission, he took me through the oral evidence adduced by the parties. Sri K. A-Swami, the learned counsel for the respondents, contended that it was not permissible for the High Court in Second Appeal to investigate into questions of fact however perverse and erroneous they might have been and the findings on fact given by the court below should be treated as binding on the High Court in second appeal. The contention of Sri Swami over-looks the fact that we are concerned in this appeal with a case in which the plaintiffs are asserting their title on the basis of their adverse possession and the question whether a party is in adverse possession of a property or not is not a pure question of fact. It involves certain questions of fact which will have to be primarily decided by a court and the inferences which have to be drawn from those facts.
It may be appropriate here to refer to the decision of the Supreme Court in Sree Meenakshi Mills Ltd.. Madurai v. Commr. of Income-tax, Madras : 1SCR691 . In that decision Venkatarama lyer. J. was considering a case which arose under the Income-tax Act. The question for decision was whether a question which was urged before the Supreme Court was a question of law or a question of fact in the context of Section 66 of the Indian Income-tax Act, 1922. The relevant portion of the said decision which is extracted below throws light on the question before us:--
'In between the domains occupied respectively of fact and of law, there is a large area in which both these questions run into each other, forming so to say, enclaves within each other. The questions that arise for determination in that area are known as mixed questions of law and fact These questions involve first the ascertainment of facts on the evidence adduced and then a determination of the rights of the parties on an application of the appropriate principles of law to the facts ascertained. To take an example, the question is whether the defendant has acquired title to the suit property by adverse possession. It is found on the facts that the land is a vacant site, that the defendant is the owner of the adjacent residential house and that he has been drying grains and cloth and throwing rubbish on the plot. The further question that has to be determined is whether the above facts are sufficient to constitute adverse possession in law. Is the user continuous or fugitive? Is it as of right or permissive in character? Thus, for deciding whether the defendant had acquired title by adverse possession, the court has firstly to find on an appreciation of the evidence what the facts are. So far, it is a question of fact. It has then to apply principles of law regarding acquisition of title by adverse possession, and decide whether on the facts established by the evidence, the requirements of law are satisfied. That is a question of law. The ultimate finding on the issue must, therefore, be an inference to be drawn from the facts found, on the application of tbe proper principles of law. and it will be correct to say in such cases that an inference from facts is a question of law. In this respect, mixed questions of law and fact differ from pure questions of fact in which the final determination equally with the finding or ascertainment of basic facts does not involve the application of any principle of law. The proposition that an inference from facts is one of law will be correct in its application to mixed questions of law and fact but not to the pure questions of fact.'
It is therefore clear from the observations of the Supreme Court in the above decision that an inference to be drawn in a case where the question for determination is whether a party has perfected his title by adverse possession or not, from the facts of such a case would be a question of law. I, therefore, propose to examine this case in the light of the above decision.
4. The plaintiffs who are seeking a declaration of their title have to establish their case. When they have admitted that the strip of land in question is a part of survey No. 229 within the holding of defendant-1 as per revenue records, they have to establish by conclusive evidence that they have perfected their title by adverse possession. The burden in such a case is very heavy on the plaintiffs. The oral evidence adduced in this case by the plaintiffs consists of the evidence of four witnesses including plain-tiff-1. Plaintiff-1 who has given evidence In support of his case as P. W. 1 has stated that the bund in question was put up more than 100 years ago by his ancestors. He has further stated that about 25 years prior to the date on which he gave evidence i. e. 23-2-1959, two neem trees which were standing on this bund were sold by him to one Gurappa who has been examined as P. W. 2. He has further asserted that the bund has always been in the possession of his family. He however does not speak to any act of possession in support of his case except the sale of two neem trees referred to above.
It may be mentioned here that the age of plaintiff-1 when he gave evidence was 45 years and he could not have given evidence with regard to what took place about 100 years ago. On this question there is no other evidence in the case. It is also not stated in the course of his evidence that the bund was put up by the ancestors of the plaintiffs without the permission of the owner of Survey No. 229. I asked Sri Swami, the learned counsel for the plaintiffs to show from the record as to the date on which the possession of the plaintiffs became adverse. He has not been able to give me the actual date on which the possession became adverse nor has been (able?) to show from the record that the construction of the bund by the ancestors of the plaintiffs, even though it may be true, was without the permission of the true owner. P. W. 1 however has admitted in the course of evidence that the land in survey No. 229 formerly belonged to his agnates.
It is quite likely that both the lands survey No. 229 and survey No. 242 might have been in the holding of a single family at some point of time. Any way it is not necessary to speculate on this aspect of the matter. A person who comes to court in assertion of his title by adverse possession must show to the satisfaction of the court that at some given point of time, the possession became adverse to the true owner. There is no such evidence in this case and in the absence of this material element it is very difficult to hold that the plaintiffs have been able to establish their title by adverse possession, A person who wants to prove his title by adverse possession, must prove that he has been in possession of the property adversely, openly, continuously and as of right over a period of twelve years. If any one of those factors is lacking, it cannot be said that he has made out a case of adverse possession.
5. Sri Swami however relied upon the evidence of P. Ws. 1 and 2 in proof of his case that at some point of time about 25 years prior to the date on which plaintiff-1 gave evidence, plaintiff-1 had sold two neem trees to P. W. 2 Gurappa which were on the bund in question. It is no doubt true that P. W. 1 has stated that he sold two neem trees about 25 years prior to P. W. 2 and P. W. 2 has stated he purchased two neem trees. It is not shown whether it was done with the knowledge of the true owner. There is no evidence on this question. Further that is the only stray act of possession spoken to by P. W. 1.
6. The next submission made by Sri Swami is that adjacent to the bund in question in Survey No. 242 which belonged to the plaintiffs, there was a well and a sugar cane kiln. It may be so. It does not advance the case of the plaintiffs any further. Those two items are admittedly in survey No. 242 and there is no dispute about the title to survey No. 242. P. Ws. 3 and 4 who have been examined in this case also do not state as to when the possession of the plaintiffs became adverse. No doubt they have stated that the trees on the bund have been in the enjoyment of plaintiff-1, but dp not say why they say so. Plaintiff 1 himself has not given any other evidence on that point except the stray act of selling two neem trees to P. W. 2 several years ago. There is no other evidence regarding the enjoyment of the bund. Even if the entire oral evidence adduced by the plaintiffs'' is accepted, it cannot be said that the plaintiffs ' have established all the facts which are necessary to establish title by adverse possession.
7. The learned District Judge however in the course of his judgment relied on the observation of the Supreme Court in Ambika Prasad Thakur v. Ram Ekbal Rai (AIR 1966 SC, 605) in order to come to the conclusion that the plaintiffs and members of their family were in continuous possession of the bund in question for nearly 100 years. The Supreme Court has no doubt observed in that decision as follows:--
'.........If a thing or a state of things is shown to exist, an inference of its continuity within a reasonably proximate time both forwards and backwards may sometime be drawn. The presumption of future continuance is noticed in illustration (d) to Section 114 of the Indian Evidence Act. 1872. In appropriate cases, an inference of the continuity of a thing or state of things backwards may be drawn under this section, though on this point the section does not give a separate illustration. The rule that the presumption' tion of continuance may operate retrospectively has been recognised both in India, see Anangamajari Chowdhrani v. Tripura Sundari Chowdhrani. (1886) 14 Ind. App. 101 at p. 110 (PC), and England, see Bristow v. Cormican, (1878) 3 AC 641 at pp. 669, 670, Doe v. Young, (1845) 8 QB 63 = 115 ER 798. The broad observation in Manmatha Nath v. Girsh Chandra Roy : AIR1934Cal707 and Hemendra Nath v. Jnanendra Prasanna : AIR1935Cal702 , that there is no rule of evidence by which one can presume the continuity of things backwards cannot be supported. The presumption of continuity weakens with the passage of time. How far the presumption may be drawn both backwards and forwards depends upon the nature of the thing and the surrounding circumstances.'
Having observed so, the Supreme Court refused to draw the presumption that the plaintiff in that case was in possession of the property between 1882 to 1909. That was a case in which the question involved was one of ownership and possession of a bit of land. Having noticed the ruling of the Supreme Court, the learned appellate Judge failed to apply the decision to the case on hand correctly. In this case, as I have already stated there is hardly any evidence regarding possession and enjoyment of the property by the plaintiffs except one stray instance of P. W. 1 selling two neem trees to P. W. 2 about 25 years prior to the date of his evidence. On the question of construction of the bund, there is no evidence in the eye of law worth the name on record. In the circumstances of the case, it was not correct for the lower court to have drawn an inference under Section 114 of the Indian Evidence Act. that on proof of possession of the bund for sometime even if such proof was forthcoming (it is not necessary for me to examine whether that finding is correct or not), that for 100 years prior to that date or for a period of 12 years the plaintiffs and their ancestors were in possession of land in dispute. The decision of the Supreme Court makes it clear that the presumption of fact under Section 114 of the Evidence Act in a case of this type can be extended to a period which is reasonably proximate both forwards and backwards. Certainly a period of even 12 years cannot be considered to be a reasonably proximate period backwards. I, therefore, feel that on the evidence adduced by the plaintiffs even if it is to be accepted in full, it is impossible to come to the conclusion that the plaintiffs have made out a case of title by adverse possession to the suit land. Sri Swami further contended that if the suit is dismissed, his clients would be put to great trouble because it is likely that defendant-1 might remove the bund and allow rain water to flow on the plaintiffs bund causing irreparable loss to them. This plea cannot be examined in this case. It is open to the plaintiffs, if they are so advised, to take such proceedings as may be available to prevent any loss which is likely to be caused by the action of defendant-1. I do not want to express any opinion in that behalf in this case.
8. In the result, the judgment and decree of the court below are set aside and the suit of the plaintiffs dismissed. In the circumstances of the case, the parties will bear their own costs in all the three courts.