M. Madhavan Nair, J.
1. This appeal is in a suit for recovery of landed property with incidental reliefs. The Munsif dismissed the suit finding the plaintiff to have failed to prove possession with herself or her predecessor within 12 years of the suit. The Subordinate Judge, on appeal, decreed the suit holding her to have given sufficient evidence to show her possession within 12 years prior to the suit. Hence this second appeal by the 1st defendant.
2. Though the finding of the Subordinate Judge that 'there is sufficient evidence to show that the plaintiff has been in possession within 12 years prior to the date of the suit' was sufficient for decreeing the suit, he has cited Vaidhyanathaswamy v. Lakshmi Amma, 1962 Ker LT 577 and observed 'if the oral evidence on both sides is to be treated as equally unsatisfactory, the case should have been decided on the basis of the presumption arising from title'. Counsel for appellant challenged that proposition and canvassed its reconsideration. Counsel is not prepared to deny existence of a legal presumption of possession going along with title, but urges that such presumption would arise only in cases where proof of actual possession is impossible on account of the nature of the property as a forest land or a submerged land. To me it appears that if there exists a presumption of law that possession goes with title it must apply to all kinds of land. That legal presumption cannot be limited to lands of particular kinds any more than the legal presumption of paternity under Section 112, Evidence Act, can be limited to people of particular communities.
3. The evidence of a legal presumption that possession goes along with title cannot now be seriously doubted. It was ruled by the Judicial Committee of the Privy Council as early as in 1873 in Runjeet Ram Panday v. Goburdhun Ram Panday, (1873) 20 WR 25 at p. 30 (PC).
'Now the ordinary presumption would be that possession went with the title. That presumption cannot, of course, be of any avail in the presence of clear evidence to the contrary; .....'
4. The function of a presumption in law is stated in Salmond on Jurisprudence, 12th Edn., page 73, thus:
'This discordance between law and fact may come about in more ways than one. Its most frequent cause is the establishment of legal presumptions, whereby one fact is recognised by law as sufficient proof of another fact, whether it is in truth sufficient for that purpose or not. Such legal presumptions -- Praesumptiones juris -- are of two kinds, being either conclusive or rebuttable. A presumption of the first kind, sometimes called a praesumptiones juris et de jure, constrains the Courts to infer the existence of one fact from the existence of another, even though this inference could be proved to be false. A presumption of the second kind requires the Courts to draw such an inference even though there is no sufficient evidence to support it, provided only that there is no sufficient evidence to establish the contrary inference.'
Proof of title is the condition when only the presumption of possession can come to play and when it thus comes to play it requires the Court to find possession with the legal owner unless there is sufficient evidence before it to find contrariwise. It follows that if neither party has adduced any evidence as to possession, then the presumption stands uncon-troverted and must govern decision on possession.
5. The above proposition appears well affirmed in the decision of the Supreme Court in Kashi Bai v. Sudha Rani Ghose, AIR 1958 SC, 434, which concerned a suit for recovery of landed property after fixation of intermediate boundary where there was no proof of the plaintiffs possession, and all the evidence was that in the period 1917 to 1945 the defendant, the neighbouring owner, hud been in possession and enjoyment of the land, by working a coal mine therein, in the years 1917/1918, 1923 to 1926, 1931 to 1933, 1939 to 1944 to date of suit in 1945. Title to the land was found with the plaintiff. The Supreme Court observed that during the intervals that the defendant did not show physical possession with himself, possession must be held to have reverted to the owner, and therefore the plaintiff has to succeed. The facts of the case and the inference drawn thereon, which are material for understanding the decision, are at paragraphs 4 and 7 or the judgment, which may be quoted with advantage here.
'(4) On 24th March, 1945 Brojendra Nath Ghose, Vishwa Nath Prasad and Nagendra Nath Bose respondents 1-3 as plaintiffs 1-3 brought a suit (Suit No. 16 of 1945) against Sreemathi Kashi Bai, defendant 1, now appellant and against Manilal Becharlal Sengvi defendant 2 now respondent 10 for fixation of the intermediate boundary and for possession of the area trespassed upon by the defendants and for compensation for coal illegally removed by the latter and also for an injunction. They alleged that the defendants had wrongfully taken possession of the area in dispute shown in the map attached to the plaint and had illegally removed coal from their mine. The defendants in their written statement of 29th June, 1945, denied the allegations made by the plaintiffs. They pleaded that the area in dispute was acquired by Nanji Khongarji and Lira Raja and had been worked by them and they had been in sole exclusive, uninterrupted and undisturbed possession of the area openly to the knowledge of the plaintiffs in that suit and had therefore acquired title by adverse possession. The claim of ownership which they had set up as a result of acquisition from Bennett and Bellwood was negatived by the Courts below and is no longer in dispute before us, the sole point that survives being one of adverse possession.
(7) On behalf of the appellant the learned Attorney-General submitted that the carrying on of the mining operations in the area in dispute even though intermittent as found by the Courts below could only lead to one inference that the possession of the area as well as of the mine was of the appellant and as she had prescribed for the requisite period of 12 years, her possession had matured into ownership by adverse possession. In our opinion the operations carried on by the appellant were inconsistent with the continuous, open and hostile possession or with the assertion of hostile title for the prescribed period of 12 years necessary to constitute adverse possession. It was contended that for the purpose of adverse possession in regard to a coal mine it was not necessary that it should have been worked for 12 years continuously and it was sufficient if the appellant had carried on mining operations for a period of 12 years even with long stoppages as in the instant case. But we are unable to accept this contention. Even though it may not be necessary for the purpose of establishing adverse possession over a coal mining area to carry on mining operation continuously for a period of 12 years, continuous possession of the mining area and the mine would be a necessary ingredient to establish adverse possession. What has been proved by the appellant is that the two inclines opened by Bennett were worked in 1917 or 1918 by the predecessor in interest of the appellant, there were no mining operations till 1923 when they were restarted and were continued till 1926. The operations ceased in 1926 and were recommenced in 1931 and carried on till 1933 when they ceased again till 1939 and whether they were carried on in 1939 or not is not quite clear but there were no operations from 1939 to 1944 when they were recommenced by the appellant. During the period when there were no mining operations no kind of possession of the appellant has been proved and thus the presumption of law is not rebutted that during the period when the operations had ceased to be carried on the possession would revert to the true owner.'
The above dictum shows clearly that, when the plaintiff has proved his title but has not proved any act of possession at any time within 12 years of the suit, and the defendant has not proved possession with himself except at some intervals within 12 years of the suit, the presumption that possession follows title comes into play in aid of the title-holder. It is as if the question is not whether the plaintiff who has proved his title has proved his possession also, but whether the defendant had proved possession with himself for all the 12 years preceding the suit. In other words, the presumption acts as prima facie proof of possession of the person who has proved title to immovable property.
6. I am afraid that the contention that the presumption applies only to cases of impossibility of actual possession as with forests or submerged lands involves a fallacy. Law never insists or expects an impossible thing to be done. If, on account of the nature of the property, possession cannot be proved, it is too much to say that law expects any proof of actual possession, as would be the case when the presumption is drawn and onus is cast on the contestant to rebut it. It follows that in the case of such properties, possession is irrelevant and rights have to be adjudged only on the basis of title.
7. Counsel urged that the reversal in Ponnamma Vally v. Achuthan Unni, 1966 Ker LT 86 of my dictum in 1962 Ker LT 577 applying the presumption to cases of boundary disputes really amounts to a negation of the presumption to such and similar cases. The argument appears to have some force and merits examination. Though I have doubted in Varkey v. Joseph, 1966 Ker LT 93 the correctness of the abovesaid reversal, nothing further seems to have been said on the question, as no later pronouncement has been cited before me.
In the Limitation Act, 1908, Article 142 prescribed for a suit for recovery of immovable property a period of limitation of 12 years from date or dispossession or discontinuance of possession by the plaintiff, and Section 3 of the Act directed every suit instituted after the period of limitation to be dismissed although limitation has not been set up as a defence. On these provisions, the Courts held that the plaintiff in every suit is bound to show his suit to be within time and that Article 142 required the plaintiff in a suit for recovery of possession of land to show that he had possession of the land within 12 years of the suit. But there was nothing in the Section or the Article to indicate that, in the discharge of such onus, the plaintiff is not entitled to rely on the legal presumption that arises from proof of his title to the land. If on proof of title a legal presumption of possession with him arises, that is verily prima facie proof of possession. The boot will then be on the leg of the defendant to controvert it. This aspect appears to have been overlooked by many a learned Judge in decisions, and that, in spite of the pronouncement of the Privy Council in a suit to recover lands in Mt. Allah Rakhi v. Shah Mohammad Abdur Rahim, AIR 1934 PC 77 at p. 81 = 61 Ind App 50 that where there is no doubt that the title to the lands was in the plaintiff the onus was on the defendant to prove the adverse possession relied on. The following observation of the Privy Council in Hafiz Mohammed Fateh Nasib v. Sir Swarup Chand Hukum Chand, AIR 1948 PC 76 at p. 80 is also pertinent here:
'The proper test to be applied in a case of this nature is whether the predecessors of the plaintiff, for a period of 12 years or more exercised such dominion over the property in suit as to justify the inference of fact that they were in possession of the whole. It was not necessary that they should prove affirmatively that their predecessors had actually been in physical possession of every square inch of his land, but it should have been considered whether the acts of possession which had been proved would legitimately show that the predecessors of the plaintiff had enjoyed dominion over this property in the manner in which such dominion is normally exercised. Their Lordships agree that this is the correct test to apply. In my opinion, the above observation of the Privy Council applies well to a suit to settle a boundary dispute, where title to the respective lands (survey numbers) is admitted or proved. The presumption of possession following title must discharge the onus, if at all, on the plaintiff to prove his possession and therefore the decision has to rest 'on title unless the defendant proves his prescriptive title by adverse possession in regard to the encroached area.' (See 1962 Ker LT 577 at p. 586). It is unfortunate that the above dictum happened to be reversed in 1966 Ker LT 86. It is fortunate that Article 142 of the Limitation Act, 1908, which gave rise to decisions that ignored the presumption of possession following title, has been omitted in the new Limitation Act, 1963. However, in the light of the clear pronouncement of the Supreme Court on the operation of the presumption in AIR 1958 SC 434, cited above, I do not see any ground for reconsideration of my views expressed in 1962 Ker LT 577.
8. In the result I accept the decision of the Subordinate Judge as right. This second appeal fails and is dismissed hereby.