S.K. Ray, J.
1. This is the defendant's appeal from the reversing decision of Sri D.P. Shanna, Addl. Subordinate Judge dated 16-9-67 passed in T. A. No. 128/66. It arises out of a suit for declaration of plaintiff's right and title to the suit properties and confirmation or in the alternative for recovery of possession and for permanent injunction.
2. The suit-properties described in Schedule A of the plaint originally belonged to the husband of the original defendant, Sakhi Bewa. In execution of a money-decree against him and his brother, these properties were sold in auction and purchased by the plaintiff. Possession was delivered to him through Court on 18-6-41. He continued in possession thereof till 1956 when he engaged the defendant as a watcher for a remuneration of Rs. 30/-per year and in evidence of such arrangement, defendant executed Ext. 1 on 28-3-56. This document is nomenclatured as 'Jaguali Patra'. Subsequently the plaintiff being aware that the defendant was setting up an adverse claim to the disputed properties, filed the present suit on 23-12-63 for the aforesaid reliefs. This is the plaintiff's story.
3. Admittedly the properties in the suit belonged to her husband and was sold in execution of money-decree but despite such sale and consequent delivery of possession in execution case in favour of the plaintiff she continued in possession and the plaintiff never got actual physical possession thereof. She was paying rent throughout. Thus, she being in possession continuously for more than 12 years adversely to the plaintiff, has acquired title to it by adverse possession.
4. The trial Court dismissed the suit on the finding that the plaintiff never got possession through Court even though he purchased the same in Court auction. The defendant continued in possession thereafter and acquired title thereto by adverse possession. He further held that as the plaintiff has filed the suit for declaration of title and for recovery of possession the onus is on him to prove not only his title, but also his possession within 12 years of the suit, and he having failed to discharge the same, the suit is bound to fail.
5. The lower appellate court reversed the decision and decreed the suit. He held that Article 65 of the new Limitation Act is applicable to the case andaccording to him, the plaintiff having proved his title, is under no further obligation to prove his possession within 12 years of the suit. It is for the defendant who puts up a claim of acquisition of title by adverse possession to establish the same by clear and cogent evidence. In his opinion, the defendant failed to prove her possession adversely to the plaintiff for a continuous period of 12 years. He accepted Ext. 1 (Jaguali patra) as a piece of genuine document, but held that the said document having been executed by the defendant, her possession was permissive. The suit was, therefore, decreed.
6. The learned counsel for the appellants has advanced four points. His first contention is that Article 142 of the Limitation Act of 1908, and not Article 65 of the new Limitation Act is applicable to the case. According to it, the plaintiff has not only to prove his title, but also subsisting possession within 12 years of suit. Thus having applied the wrong Article of the Limitation Act he has thrown the initial onus on the defendant and has appraised evidence from that angle and so his decision has been vitiated. The second contention is that the defendant who is an illiterate lady, having denied execution of Ext. 1, and there being no endorsement on it that it was read over and explained to her and the scribe having also failed to depose about such legal requirements having been complied with, no legal liability should attach to her on basis of that document. The third contention is that the decision of the lower appellate Court is vitiated on account of the commission of a number of errors on record. Fourthly, it is contended that the appellate Court has not discussed the evidence of possession adduced on behalf of the plaintiff at all.
7. Coming to the first point, it would be seen that the present suit was filed on 23-11-63 and the new Limitation Act came into force on 1st January, 1964. Obviously therefore, the old Limitation Act is fully applicable to the case. It will appear from Para 4 of the lower appellate court's judgment that Article 65 has been applied, and the initial onus has been cast on the defendant. In subsequent paragraph of his judgment, he has appraised the evidence in the background of the legal perspective that after the plaintiff has proved his title, it was upto the defendant to prove her possession and he never construed the evidence from the point of view that the plaintiff apart from proving his title, is still to prove his possession within 12 years of the suit. This error in legal approach was due to erroneous application of Article 65 of the New Limitation Act. In dealing with the Article 142 of the Old Limitation Act, this Court has held in the case of Gumani Puntia v. Khatrabasi Puntia, 20 Cut LT 68 = (AIR 1954 Orissa 189), that
'In a suit for ejectment the plaintiffs suit must fail even though he might have established his title if the evidence of possession adduced by both parties is found to be unworthy of credit. In such cases the primary burden of showing that the plaintiff was in possession of the property within twelve years of the commencement of the suit is on the plaintiff and if the evidence of possession is rejected as unworthy of credit the party upon whom the burden lies can be in no better position than he had called no evidence at all.'
In AIR 1940 Mad 798 (FB) (Official Receiver of East Godavari at Rajamundry v. Chava Govindaraju), it has been held as follows :
'It is wrong to say that a person who proves title in a suit for ejectment has the right to the decree sought unless the defendant proves adverse possession for 12 years. The plaintiff is not entitled to succeed unless he shows in addition to title, that he has been in possession of the property within 12 years of the suit. The burden lies upon the plaintiff to prove that he was in possession within 12 years of suit; the onus is not upon the defendant to prove adverse possession for a period of 12 years.'
The decision of the Orissa High Court referred to above further enunciates that where the evidence on question of possession led by both parties though not unworthy of credit was evenly balanced and the court finds it difficult to prefer one to the other, the presumption that possession follows title may be applied as a presumption of fact. It is essential that the evidence must be scanned and scrutinised in the aforesaid legal perspective. The lower appellate court having viewed the evidence in wrong perspective, by casting the initial and ultimate onus on the defendant to prove her adverse possesssion, his finding is bound to end in error. The first point, therefore, succeeds.
8. Now I will take up the second and the third points together, as they are inter-connected. It is always the requirement of law where a document is purported to have been executed by a Paradanashin or illiterate woman, that the parties relying upon it and seeking to bind the lady with the contents thereof, must not only formally prove the document but must in addition prove that the contents were read over and explained to the lady-executant. In accepting Ext. 1 and relying upon it, the lower appellate court should have been satisfied that these requirements of law have been fulfilled in this case. That apart, he has differed from the Munsiff who refused to rely on it by saying
'In the judgment, the learned Munsif has committed an error of record by observing that Ext. 1 was written by P. W. 2 on the instruction of plaintiff. This weighed with the learned Munsif that P. W. 2 had admitted that at the instance of plaintiff he has written Ext. 1. But nowhere the scribe has said like that.....'
A ground has been taken that it is the lower appellate court who is guilty of that very kind of error which he imputes to the trial court in his judgment as extracted above. P. W. 2's evidence was placed before me. In the examination-in-chief he said,
'..... I wrote Ext. 1 as per instructions of the defendant.....'
At another place, he has said 'the plaintiff told me the terms of Ext. 1'. Lastly at the fag end of his cross-examination, he has further stated 'I wrote this in Ext. 1as per instruction of the plaintiff'. In view of the quoted testimony of P. W. 2, it is clear that the learned lower appellate Court has committed an error of record in this respect by observing that it is the Munsif who committed an error of record by reading something in the deposition of P. W. 2 which was not there. Accordingly, acceptance of Ext. 1 as a genuine document by the lower appellate Court, differing from the Munsif in this respect is vitiated in view of the aforesaid commission of error of record.
9. Lastly, the lower appellate court has recorded a finding that the defendant has failed to prove her title by adverse possession without a discussion of the oral evidence adduced on her behalf. It is open to a party claiming adverse possession not only to rely on the positive evidence called by him, but also on any fact elicited in cross-examination of the other party or his witnesses which lends support to his case of adverse possession. As has been stated above, there is no discussion of evidence of the defendant and as such, the finding regarding adverse possession cannot be upheld. For the aforesaid reasons, I am satisfied that the lower appellate Court's decision cannot be upheld.
In the result, therefore, I set aside the Judgment and decree of the lower appellate Court and send the case back to him for re-hearing and fresh disposal of the appeal in accordance with law keeping in mind the factual and legal aspects indicated above. Costs will abide the result.