1. The short point in this revision petition is, whether the order of the lower Court, by which the issues were recast is materially irregular. In order to perspective, the essential facts have to be stated.
2. O. S. No. 332 of 1966 on the file of the 1st Additional District Munsif, Kovvur was laid by the respondent on foot of her title; and the main relief sought is recovery of possession of a vacant site, which is part of R .S.No 108 situate at the village of Kannapuram in West Godavari District. The plaintiff claims to be owner of an extent of Ac. 2-54 cents comprised in the filed bearing the abovementioned survey number. She was granting portions of the land to poor persons at their quest. The grants were being evidenced by the letters which the plaintiff was obtaining from the grantees. It is pleaded by her that at about 15 years ago, the defendant asked for permission to occupy portion of the land, of the extent of 6 cents. The defendant was accordingly allowed to occupy the site as a licensee. Some time later, the defendant craved for leave and lince to occupy a further extent of 15 cents, and this too was granted that the defendant put up a titled house, and execution was taken by her to the user of the lands for the purpose. A notice was issued by her through her advocate on 27-7-1965, to which the decent replied on 23-8-1965 setting out plea that three was a gift by he of the site in question in 1945. The suit for ejectment based on title allowed the defendant's notice.
3. The defendants pleading by way of answer to the suit asserts that there was an oral gift by the plaintiff in his favour in 1945 and that he was in possession of the land since then in assertion of his own right. It is also urged that he perfected his title by long, continuos and adverse possession.
4. The issues in the suit were settled in due course. issue (1) as framed in the first instance reads:
'Whether the plaintiff has title to the suit sites within the statutory period before the suit?'.
Issue (2) relates to the question whether the defendant perfected his title to the lands by adverse possession. It is unnessarty to set out the gist of the other two issues framed by the Court.
5. On the application of the plaintiff, I. A. No. 716/69 the learned District Munsif, by his order dated 24th December 1969 deleted issue (1) and recast the other issues. It may be mentioned that the main controversy in this revision petition relates tot he deletion of issue (1), Though the other issues had been recast in the manner desired by the plaintiff there is virtually no dispute raised in regard to them.
6. The District Munsif expressed the view that there is no need to have a separate issue with regard to the plaintiff's title and possession of the suit property within the statytirty period. Accordingly issue (1) was deleted and the other issues were recast with certain verbal changes to which no exception is taken here.
7. The main contention urged before me is that it is incumbent on the plaintiff to prove her title, having regard to the pleadings and that the deletion of Issue (1) is irregular. Learned Counsel for the respondent submits that, as the justification pleaded by the defendant for his possession is the alleged gift of the plaintiff and or the acquisition of title by adverse possession the burden is on the defendant to make out affirmatively his title either on foot of gift or on the basis of adverse possession. If the defendant fails to prove the fit of adverse possession says Counsel for the respondent, the plaintiff's action for ejectment ought to be allowed without any further requirement of proof of her title.
8. It is not dispute that the gist of the plaintiff's action is that it seeks recovery of possession of immovable property on foot of her title. Art. 64 of the Limitation Act of 1963 relates to suits for possession of immovable property based on previous possession and not no title, whereas Art. 65 applies to the category off sets where the action is founded on title. The expression 'based on title' occurring in Art. 65 signifies a change made by the new Act of 1963.
9. The reasons for the changes brought about by Arts. 64 and 65 are to be found in third report of the Law Commission. It is considered that the provisions of Art. 142 of the old Limitation Act constituted a harsh and oppressive provision placing the owner of the property at a disadvantage in an action brought by him against a trespasser. The decision of Courts laid down a rule of law that loaded dice heavily against the owner who was disposed. The burden cast on the dispossessed owner made in incumbent on him not only to establish his title but it made it requisite that in an ejectment action, he should also make out that he was in position at some point of time within twelve years before the date of the suit. This possession, the Law Commission felt, called for legislative action, The recommendation of the Law Commission was inter ail, to this effect:
'If the defendant wants to defeat the right of the plaintiff, he must establish his adverse possession for over twelve years which has the effect of extinguishing the title of the owner by the operation of Section 28 of the limitation Act read with Art. 144, If he fails to do so, there is no reason for non-suiting the plaintiff merely because he was not able to prove possession within twelve years. In our opinion. Art. 142 must be restricted in its application only to suits based in its application. We therefore suggest that in order to avoid injustice and inequality to the true owner and to simplify the law, Art. 142 should be restricted to suits based on possessor title and owner of the property should not loose his right to its unless the defendant in possession is able to establish adverse possession.'
It was pursuant to the opinion thus expressed that the two Arts. 64 and 65 came to be enacted in the Act of 1963. There is a clear cut distinction between suits based on prior possession and suits abased on title. The former are governed by Art. 64 and to the latter category the provisions of Art. 65 are applicable.
10. Adverting to the dichotomy discernible in the two Articles, learned Counsel for the plaintiff-respondent endeavored to sustain that the issue calling on the plaintiff to make out her title was rightly deleted by the lower Court. The argument of the Counsel rests on a fallacy. The principles is firmly embodied in reported decisions that a party outset by a person who has no better right, is with reference to the person so ousting entitled to recover by virtue of the possession he had held before the ouster even though that possession was without any title. This principle was laid down by Subramania Ayyarr. J. in Mustapha Saheb v. Santha Pillai, (1900) ILR 23 Mad 179 at p. 182. It is a will recognised doctrine of law that possession is a substantive right or interest which has certain legal incidents and advantages apart form title. The provisions of Art. 64, in my opinion must be correlated to this concept or doctrine which enables the person in possession to seek the aid of the Court in the recovery of possession when he action is founds nots title but no possession alone. In case of this discipline,. an iniquity into the question of title is out of place or irrelevant unless the defendant pleads to juts tertii. The legal position relevant to a suit of this depiction is defined in Perry v. Clisssold, 1907 AC 73.
11. What when is the position in the case on hand? The action is based on title. It is not based on the mere averment that the plaintiff is possession of property has been dispossession . The plaintiff seeks the aid of the Court to regain possession by virtue of her title. that the defenat, who was in occupation by her leave and license, has become a trespasser because of the repudiation of plaintiff's title. What are the basic facts that the plaintiff has to prove in order to obtain the possession of her lands?
12. It is patient to notice at the outset that the right to the recovery of possession upon which the action rests in incidental to the plaintiff's ownership or title. The plaintiff asserts her title as the foundation of her action. In a passage cited from 'Salmond on Torts' (13th Edition) at page 1173 of Nari Service Society v. K. C. Alexander, : 3SCR163 the learned author said;
'But usually the plaintiff in an action of jectment is not in possession he relied upon hiss right to possession unaccompanied by actual to possession, In such a case he must recover by the strength of his own title, without any regard to the weakness of the defeants. The result therefore is that in action of ejectment the just stertii is in practice a good defence'
In the decision of the Supreme Court referred to be, Hidayatuallh, J as his Lordship then was observed at page 1174:
'Therefore, the plaintiff who was peaceably in possession was entitled to remain in possession and only the State could evict him. The action of the Society was a violent invasion of his possession and in the Law as it stands in Indian the plaintiff could maintain a possessor suit under the provisions of the Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised.'
The following propositions emerge as a result of the decision of the Supreme Court and the relevant provisions of the Limitation Act:
In a possessor suit under the Specific Relief Act, no adjudication on the question of title can arise.
In a suit based on prior possession but not on tile, the defendant can plead to just tertii in which case the enquiry in title becomes justifiable issue.
In an action in ejectment based on title, the defendant who is in adverse possession is obliged to make out acquired title pleaded by him.
13. The question that is posed here is whether the plaintiff who invokes the Courts aid, is not obliged to substantiate the basic fact of his ownership. In this not an indispensable prerequisite for obtaining a decree in ejectment? The defendant has become out with a positive plea that he has title to the property either on foot of gift or on the basis of acquired title and the onus is on him to prove the positive case relied on why him. If he succeeds in establishing his title, no further question arise and the non-suit of the plaintiff is the inevitable result upon a finding of the defendant's title. In the contingency of the defendant's failure to substantiate his title. is the plaintiff entitled to a decree in ejectment without any proof of his title? Counsel for the respondent submits that the plaintiff end not furnish any proof of ownership and upon the failure of the defeants, a decree indictment has to follow. I am unable to subscribe to the proposition in its general or unqualified form.
14. The issue ass receipt by the lower Court rightly place the burden on the defenat of making out hiss title. The initial burden is on him. If hiss evidence is found inadequate, it appears to me the Court cannot dispossess the defendant solely on the basis of his failure. The plaintiff would have to make out the basic fact on which hr claim rests. viz., her title. It may be that in the light of the defendant' failure. the onus placed on the plaintiff to proof of title is not stringent as the challenge of the defendant has roved unavailing. Though the burden on this plaintiff sits light, it his nevertheless to be discharged.
15. Mr. Krishnamurti, however, urged that on a proper reading of the written statement, there is an implied admission of title of the plaintiff, The argument of the learned counsel is that there is an unequivocal statement that at the inception. the title vested in the plaintiff and that the plea is that three is a displacement of that plaintiff's title fails the necessary implication is that the plaintiff's title must be deemed to be subsisting and effective. In this view he submits that there is no need for the instance on the proof of the plaintiff's title which the circumstancess, is nothing but a superfluity. There is a good deal of force in this submission As pointed out by me earlier the inability of a defendant to make out hiss title may not, by itself, justify the granting of the decree of ejectment without proof of the plaintiff's title. That is the principle, that governs suits of this kind. But having regard to the pleading in this case, the conclusion must be that upon the failure of the defendant to prove the displacement or the extingusihment of the plaintiff's title. the latter must succeed. I am consequently of opinion that in the light of the pleading in this case it is not necessary to call upon the issues now framed by the lower Court are adequate and are in conformity with the rules as to onus of proof. The revision is, therefore dismissed ; but I make no order ass to costs.
16. Revision dismissed.