S. Barman, J.
1. The plaintiff is the appellant, -- In this second appeal, -- from a confirming decision of the learned District Judge, Berhampur, whereby he confirmed a decision of the learned Munsif, Aska, and dismissed the plaintiff's suit against the defendants which, originally, was for permanent injunction with the alternative prayer for possession subsequently converted to suit for possession, in the circumstances hereinafter stated.
2. The plaintiff's case, -- shortly stated, -- was this: The suit lands stood recorded in the name of the plaintiffs father in 1941; in 1942 plaintiff's father died; in 1953 the final record-of-rights dated October 2, 1953 shows that the suit lands stood in the name of the plaintiff (Ext. 1). The defendants challenged the said entry in the record-of-rights, and filed a revision in the Board of Revenue on the basis of an unregistered sale deed dated February 20, 1942 stated to have been executed by the plaintiff's father in favour of the defendants: the said revision to the Board of Revenue, -- challenging the entry in the plaintiff's name in respect of the suit land,-- was dismissed; thereafter on September 29, 1954 the plaintiff filed the suit for permanent injunction or in the alternative for possession; later, in course of the trial the prayer for injunction was given up and it was converted into a suit for possession. The defence, taken in the suit, was that the plaintiff's father had sold the suit lands to the defendants by the said unregistered sale deed (Ext. C), for a consideration of a sum of Rs. 50/-, which therefore required no registration.
3. The trial Court held that the plaintiff failed to prove possession within 12 years from the institution of the suit, and accordingly dismissed the plaintiff's suit; there was, however, no categorical finding by the trial court that any title passed to the defendants under the said unregistered sale deed (Ext. C). In appeal, the learned lower appellate Court found that the defendants were in possession; he also did not give any finding regarding passing of title to the defendants under the said unregistered sale deed (Ext. C); the learned lower appellate court upheld the decision of the trial court dismissing the plaintiff's suit. Hence this Second appeal.
4. The points..--urged on behalf of the plaintiff appellant,--are that the plaintiff had established his title to the suit lands; that there is no finding that the title to the suit lands passed from the plaintiff's father to the defendants; that the defendants failed to rebut the presumption of correctness of the entry in the final record-of-rights of 1953 (Ex. 1) showing that the suit lands stood in the name of the plaintiff. Indeed, except defendant No. 1 who deposed before the trial court as D. W. 1,--there was no other witness examined, on behalf of the derdts. to rebut the presumption of correctness of the entry in the record-of-rights, whereas the plaintiff called as many as 4 witnesses who all spoke about the plaintiff's title and his having continued in possession.
5. It is incontrovertible that ordinarily in a suit for ejectment the plaintiff must prove his antecedent title and possession within the statutory period; but cases may arise where possession may be inferred only from title and other circumstances of the case, even though the evidence may not conclusively establish actual physical possession; the presumption of possession arising from title is not available where the land is capable of actual possession by cultivation or otherwise and there is no evidence of possession or the evidence adduced is unworthy of credit; but this presumption is available in all cases, namely, where the evidence is equally strong and apparently equally well balanced on both sides so that it is difficult to determine where the truth lies; further where the evidence, on both sides, is weak or unsatisfactory, but not valueless or wholly incredible, in such cases, the plaintiff can succeed on the strength of his title alone. (Sudhansu Sekhar Singh Deo v. Haribansa Singh, ILR 1960 Cut 395).
In the light of the aforesaid principle ot law, it is to be determined whether or not the plaintiff's case was not one of worthless or incredible evidence about possession, but it was one of weak or unsatisfactory character. If the plaintiff had succeeded in adducing evidence which was not valueless or worthless or wholly incredible evidence about possession but of weak or unsatisfactory character, even then the plaintiff is entitled to the presumption of possession arising out of the ownership.
6. In support of the plaintiff's claim,-- that he is In possession,--the learned counsel for the plaintiff-appellant strongly relied on a finding of the learned lower appellate Court contained in the last sentence of paragraph 4 of his judgment which he quoted as follows:
'It is now beyond controversy that at least five years prior to the institution of the suit, the plaintiff was in possession.'
It was, however, strongly urged on behalf of the defendants respondents that the said finding of the learnedlower appellate Court was a mistake, in that the said particular sentence in the judgment was inconsistent with theother portion of the same judgment. After carefully considering whether, in fact, the said sentence, quoted above,occurring in the learned lower appellate court's judgment,is inconsistent with the other portions of the judgment, am of opinion that there is no such a inconsistency.In fact, the evidence of P. Ws. 1 and 2, who deposed inApril 1959 before the trial court, is that the defendantNo. 1 is in possession for four or five years, that is tosay, since 1954, after the suit was filed on September 29,1954. In summing up, the learned lower appellate Courtcame to the conclusion that possession was with the defendants, for the reasons stated in his judgment, and accordingly the learned lower appellate Court held that thelearned trial court was justified in dismissing the case ofthe plaintiff.
Apparently, the learned lower appellate Court made a confusion in that while considering the statutory period of possession he took into consideration the period when the defendant was in possession for five years after the filing of the suit on September 29, 1954 he obviously missed the point that the defendants' possession during the pendency of the suit is immaterial. The circumstance, --that the defendants came to be in possession of the suit lands by trespassing thereon during the pendency of the suit, -- does not affect the plaintiff's position. All that the plaintiff was required to show was that he was in possession within 12 years prior to the institution of the suit, that is to say, at any time, between 1942 and 1954 (when the suit was filed) and it is exactly on this point that the learned lower appellate court came to finding beyond controversy that for at least five years prior to the institution of the suit, the plaintiff was in possession as quoted above.
The undoubted position -- that there is no mistake in that sentence in the learned lower appellate Court's judgment,-- is further supported by the circumstance that at the time when the suit was filed by the plaintiff on September 29, 1954, there was the prayer for permanent injunction, restraining the defendants from interfering with the plaintiff's possession; that it is clear that the plaintiff was still in possession at the date of institution of the suit on April 29, 1954. It was only after the plaintiff was dispossessed by the defendants during the pendency of the suit that the plaintiff came to convert the suit into one with the prayer for restoring him into possession These circumstances clarify the alleged (not real) inconsistency in the said sentence of the learned lower appellate Court quoted above; there is no inconsistency in his finding of facts. The learned lower appellate Court was clearly wrong in law in taking into account the period of defendant's wrongful possession on trespass after the suit was filed as aforesaid.
7. In view of the entry in the record-of-rights, showing that the suit lands stood in the name of the plaintiff as late as 1953, -- the onus is on the defendants to prove that the said entry in favour of the plaintiff was not correct. I have carefully considered the evidence of both sides on this aspect of the question. In my opinion, the plaintiffs evidence on this point is not incredible nor is the plaintiff's evidence so valueless or worthless as to be discarded. Assuming the plaintiff's evidence on the point was of weak or unsatisfactory character, even so, he is entitled to the presumption of possession in his favour arising out of ownership.
8. As regards the defendants' stand on the unregistered sale deed dated February 20, 1942 (Ext. C) said to have been executed by the plaintiff's father, who died the same year in 1942, -- the alleged signature of the executant (plaintiff's father) is denied by the plaintiff; the defendants did not choose to examine the scribe of the document, nor did they call any of the attesting witnesses, although one of them was admittedly alive. The defence explanation for not calling him was that he was a leper. This is an unsatisfactory explanation because even the leper attesting witness could have been examined on commission, which was not done. That apart, the defendant No. 1 himself could not read the document. A person unable to read a document cannot give secondary evidence of its contents, even though the contents of the document might have been read over to him. It was contended on behalf of the plaintiff-appellant that the document, thus, was not proved. Moreover the attention of this court was also drawn to certain suspicious circumstances, inter alia, that although the stamp paper was purchased on January 21, 1942 the alleged sale deed was not executed until a month thereafter on 20-2-1942; that there is also no evidence that the plaintiff's father died in 1942 nor is there anything to show on which particular month or date in 1942 the plaintiff's father died; the exact date of death of the plaintiff's father is material in this case for deciding the genuineness of the alleged sale deed (Ex. C). That apart, there are said to be some interpolations in the document itself, on which adverse comments were made on behalf of the plaintiff appellant.
On the question of alleged delivery of possession pursuant to the alleged sale deed, certain rent receipts were produced on behalf of the defendants being Ext. A series. These rent receipts all relate to a period after the institution of the suit, and accordingly they do not support the defence case.
9. Considering all the circumstances, taken together the defence story, -- both with regard to their alleged title and alleged possession -- is not believable; whereas the entry in the final record-of-rights of 1953, (Ext. I), showing the suit lands standing in the name of the plaintiff,-- considered with the plaintiff's evidence, as discussed above, supports the plaintiff's case both with regard to his possession as also his title.
The defendants failed to discharge the onus of proof on them, and failed to rebut the presumption of correctness of the said entry in the record of rights in favour of the plaintiff. The plaintiff's evidence on the point is acceptable for the reasons as aforesaid. This my view, is supported by the said Division Bench decision of the Court in ILR 1960 Cut 395 cited above,
10. I am therefore, of opinion that the view takenby both the courts below is contrary to law. The decisionof the courts below is set aside, and the plaintiff's suitis decreed in his favour. This appeal is, accordingly, alowed with costs throughout.