1. This appeal must succeed. The plaintiff is the Zemindar of the village and his title has been held established in both Courts. He alleges that the defendant was put in possession for certain purposes, unnecessary to mention, by leave and license. The defendant denied the license in his written statement and set up an adverse title. Mr. Baldeo Ram for the defendant says that it is not proved that the license was ever granted or revoked. In our opinion that is now immaterial. The plaintiff based his case upon it and from the moment that the defendant repudiated the license and set up adverse possession, it was no longer possible for the defendant to rely upon the license or to deny its revocation. He was in the position of a trespasser without any defence to the suit, unless he succeeded in establishing his title by adverse possession.
2. With reference to that part of the case, I propose to cite two passages from the judgment of the lower Appellate Court. Having held that the plaintiff had shown title the learned Judge said: 'It is equally obvious that the appellant failed to substantiate his allegation of adverse possession. It was not at all asserted when the title of the Zemindar was denied and his own asserted.' This being so, there is no finding of adverse possession and in our opinion the defence fails and the plaintiff is entitled to succeed. The reason why the Judge in the lower Appellate Court gave judgment for the defendant is contained in the following words which I propose to quote, for the reason that in my opinion, a false impression of what is the actual law has prevailed for a very considerable time in the lower Courts. There is at least one authority in the Law Reports of this Province by which the lower Courts, unless they happen to be familiar with the Privy Council decisions, may reasonably hold themselves bound, and it is high time that a clear indication was given as to the actual law as it stands at the present moment in this Province, as throughout India upon this question. The learned Judge says: 'In this case which was an action for ejectment, where the defendant advanced the plea of adverse possession, in my opinion, the onus lay on the plaintiff-respondent to prove not only his title but also his possession within twelve years of the suit. It was held in Inayat Husen v. Ali Husein 20 A. 182 : A.W.N. (1898) 19 : 9 Ind. Dec. (n.s.) 478 that the plaintiff should lay the foundation for his case by proving that he was in possession of the land within limitation.' In our view that is not the law and never has been the law in this or in any other Province in India. The matter was recently made perfectly clear by an important decision of the Privy Council reported as Secretary of State v. Chelikani Rama Rao 35 Ind. Cas. 902 : 39 M. 617 : 31 M.L.J. 324 : 20 C.W.N. 1311 : (1916) 2 M.W.N. 224 : 14 A.L.J. 1114 : 20 M.L.T. 435 : 4 L.W. 486 : 18 Bom. L.R. 1007 : 25 C.L.J. 69 : 43 I.A. 192 (P.C.). The importance of that decision is this: The Madras High Court in that particular case had followed a view which the Madras Court had been taking from time to time since the year 1885; the same view apparently as that which is declared in Inaynt Husen v. Ali Husein 20 A. 182 : A.W.N. (1898) 19 : 9 Ind. Dec. (n.s.) 478, namely, that in a suit by an owner of property for possession, to which Article 144 of the Limitation Act applied, the plaintiff had to show what is called a subsisting title. The Privy Council overruled that decision and in doing so clearly overruled the three antecedent decisions of the Madras High Court cited and relied upon in the judgment of the Madras High Court which was under review, and they did so in language contained in the opinion of Lord Shaw which to our mind is as binding upon . us and upon inferior Courts of this Province as any Statute can be. Their Lordships,' says Lord Shaw, 'are of opinion that the view thus taken of the law is erroneous. Nothing is better settled than 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.' Such a singular doctrine can be well illustrated by the case of India. ...It would be contrary to all legal principles thus to permit the squatter to put the owner of the fundamental right to a negative proof upon the point of possession.' We hold ourselves bound by that declaration of the law and compelled to say that Inayat Husen v. Ali Husein 20 A. 182 : A.W.N. (1898) 19 : 9 Ind. Dec. (n.s.) 478 and similar oases are no longer law, and inasmuch as the lower Appellate Court has held itself bound by Inayat Husen v. Ali Husein 20 A. 182 : A.W.N. (1898) 19 : 9 Ind. Dec. (n.s.) 478, we must reverse its decision.
3. I now propose, as shortly as I can in justification of our view that the law is really settled and has only become unsettled by misunderstanding, to mention the history of the authorities upon this subject. The point arose in Parmanand Misr v. Sahib Ali 11 A. 438 : A.W.N. (1889) 155 : 6 Ind. Dec. (n.s.) 708., where it was disposed of by a three Judge Bench. It is important to observe that the character of the suit in that case was one to which Article 142 of the Limitation Act would have applied. 'There is a clear distinction,' they said, as to the onus of proof between oases where a plaintiff sues for possession of land by redemption of mortgage and cases where the defence to a suit for possession of land is twelve years' adverse possession by the defendant. In each case the plaintiff must plead his title, and if that title is in issue, he must make it out by at least prima facie evidence before the defendant can be put to proof of his defence. Where the defence is twelve years' adverse possession, the defendant must plead and make out the title he alleges, and thus show that the title of the plaintiff, which otherwise had been proved or admitted, was lost.'
4. In Jafar Husain v. Mashuq Ali 14 A. 193 : A.W.N. (1892) 551 : 7 Ind. Dec. (N.S.) 494 the same question as to burden of proof in oases of adverse possession arose in a suit to which also Article 142 of the present Act would have been applicable, and the Chief Justice in his judgment in that case again made the matter perfectly clear. He said: 'We are satisfied that where a plaintiff comes into Court alleging that he has been dispossessed within limitation, and when the defence is adverse possession, the question of limitation becomes a question of title; the plaintiff must at least give some prima facie evidence to satisfy the Court in the first instance that he was in possession within twelve years before the defendant can be called upon to make out his defence of twelve years' adverse possession.'
5. Whether the expression that the question of limitation becomes a question of title is accurate or not, that case makes it quite clear that there is a clear distinction between oases such as those covered by Article 142 where the plaintiff claims possession by reason of dispossession, and oases such as those covered by Article 144 where the plaintiff stands upon his title and leaves the defendant to show that he has lost it. And the decision which I have just cited from I.L.R. 14 Allahabad [Jafar Husain v. Mashuq Ali 14 A. 193 : A.W.N. (1892) 551 : 7 Ind. Dec. (N.S.) 494] was itself based upon a decision of the Privy Council re-ported as Mohima Chunder Mozoomdar v. Mohesh Chunder Neoghi 16 C. 473 (P.C.) 16 I.A. 23 : 5 Sar. P.C.J. 321 : 8 Ind. Dec. (n.s.) 312, where their Lordships held: That the claimants had shown that they were formerly proprietors of the land to which they alleged title but they had been dispossessed some years before the suit was brought by them and the land was occupied by the 'defendants who denied their title. That being so, the burden of proof was on the claimants to prove their possession at some time within the twelve years next preceding the suit.'
6. The action being one to which Article 142 of the Limitation Act applied, it was on the claimants or plaintiffs to prove their possession at some time within the twelve years. The reasoning of that decision, if it is not presumptuous to say so, is quite clear. Where a plaintiff comes into Court complaining of dispossession, and founds his cause of action upon a specific act of the defendant of that kind, it stands to reason that inasmuch as he is compelled to establish a cause of action of some kind within limitation he must show that he was in possession within limitation; otherwise he could not have been dispossessed, and dispossession is the grievance of which he complains. So that, in our opinion, at any rate down to the year 1897 the law as enunciated by this Court was based upon the decision of the Privy Council and ought to have been accepted without controversy. Unfortunately a case crept into the Law Reports which is difficult to explain and certainly never should have been reported, namely, the case upon which the learned Judge has acted in this particular decision. That is the case of Inayat Husen v. Ali Husen 20 A. 182 : A.W.N. (1898) 19 : 9 Ind. Dec. (n.s.) 478. We are not concerned to say whether or not the case in point was rightly decided, but the vice of the decision is contained in a sentence in the judgment which I propose to quote and which unfortunately formed a prominent feature of the head-note. 'It is contended,' said the Court, that the suit is governed by Article 141...and the burden of proof was on the defendants to establish adverse possession alleged by them, In our opinion in every suit for possession, the plaintiff must prove not only a legal title to possession, but a subsisting title not barred by the law of limitation.'
7. Where that statement of the law came from it is impossible to say. It is sufficient to say that it is inconsistent with the Privy Council decision in Mohima Chunder Mozoomdar v. Mohish Chunder Neoghi 16 C. 473 (P.C.) 16 I.A. 23 : 5 Sar. P.C.J. 321 : 8 Ind. Dec. (n.s.) 312 and has been definitely overruled by the Privy Council in Secretary of State v. Chelikani Rama Rao 35 Ind. Cas. 902 : 39 M. 617 : 31 M.L.J. 324 : 20 C.W.N. 1311 : (1916) 2 M.W.N. 224 : 14 A.L.J. 1114 : 20 M.L.T. 435 : 4 L.W. 486 : 18 Bom. L.R. 1007 : 25 C.L.J. 69 : 43 I.A. 192 (P.C.). Inasmuch as the attention of the Privy Council was directed to the several Madras decisions it is not likely that Inayat Husen v. Ali Husen 20 A. 182 : A.W.N. (1898) 19 : 9 Ind. Dec, (n.s.) 478 was cited to them. It so happens that each of us sitting alone on different occasions has taken the same view of the law as we think is now established. I happen myself to have expressed my opinion in a judgment which was reported as Muhammad Kamil v. Habibullah 37 Ind. Cas. 794, where the District Judge had taken the same view as the District Judge in this case and had based himself upon the same authority, and recognizing the danger of holding this view I went out of my way to point out that the Privy Council had really removed all possible misunderstanding upon the question and that any cases in this country which had laid down the law to the contrary must be taken to be no longer binding. I observe that in his supplement to the most recent addition of his book Mr. Rustomji refers to that report and says that my observation must be received with some degree of caution. I hope that advice will always be followed with every observation of mine which hap-pens to find its way into reported oases. The only value of a reported case is the bearing of the principle enunciated upon the particular facts of the case and, therefore, the observations in the judgment must always be received and examined with a degree of caution. But inasmuch as what I said has been referred to in the text book in question, I have taken the trouble again to review the citation of oases in Mr. Rustomji's note and the various deci-sions on which I had arrived at the conclusion I had formed. I cannot find anything in Mr. Rustomji's note to shake the view which I have expressed more than once that the Privy Council decision in Secretary of State v. Chelikani Rama Rao 35 Ind. Cas. 902 : 39 M. 617 : 31 M.L.J. 324 : 20 C.W.N. 1311 : (1916) 2 M.W.N. 224 : 14 A.L.J. 1114 : 20 M.L.T. 435 : 4 L.W. 486 : 18 Bom. L.R. 1007 : 25 C.L.J. 69 : 43 I.A. 192 (P.C.) has in effect overruled the Madras oases and Inayat Husen v. Ali Husen 20 A. 182 : A.W.N. (1898) 19 : 9 Ind. Dec. (n.s.) 478. And I think it is not saying too much to ask the inferior Courts, when this question arises again, as it undoubtedly frequently arises, to pay attention to these observations and to examine the Privy Council decision and no longer to hold themselves bound by the decision in Inayat Husen v. Ali Husen 20 A. 182 : A.W.N. (1898) 19 : 9 Ind. Dec. (N.S.) 478.
8. I agree generally. The finding of the lower Appellate Court is: 'The fact remains that the plaintiff is the Zemindar and the defendant has been in long possession of the land.' It has also found that the possession of the defendant has not been proved to have been adverse. That being so, it seems to me that since the publication of the ruling of the Privy Council reported as Secretary of State v. Chelikani Rama Rao 35 Ind. Cas. 902 : 39 M. 617 : 31 M.L.J. 324 : 20 C.W.N. 1311 : (1916) 2 M.W.N. 224 : 14 A.L.J. 1114 : 20 M.L.T. 435 : 4 L.W. 486 : 18 Bom. L.R. 1007 : 25 C.L.J. 69 : 43 I.A. 192 (P.C.), the plaintiff must succeed inasmuch as the defendant has failed to prove his adverse possession. I concur in the order proposed.
9. By The Court.--For these reasons our order is that the appeal must be allowed with costs including in this Court fees on the higher scale.