V.B. Raju, J.
1. This second appeal arises out of a finding of the first appellate Court that the suit open land is of the ownership of the plaintiffs by reason of their adverse possession for more than sixty years and that it does not belong to the defendant namely the State of Bombay.
2. No doubt the adequacy and sufficiency of evidence is always a question of fact and cannot be argued in second appeal. But whether user amounts to adverse possession is a question of law. It is also a question of law whether there is evidence of possession as distinguished from evidence of mere user. The concept of possession is an abstract one and it is not sufficient merely to prove user by tethering cattle as held in Framji Cursetji v. Goculdas Madhovji I.L.R. 16 Bombay 338 In that case in addition to tethering cattle some construction had also been made. But in spite of that it was held that the user by tethering cattle and the construction of a temporary structure would not amount to possession in the case of open land. Whether that would be sufficient or not to constitute possession is a question of law. It is true that we are here dealing with a blind alley in the middle of seven houses. In second appeal I must accept the appreciation of evidence by the first appellate Court. There is therefore evidence to show user of the site by tethering cattle for more than sixty years. But in my opinion that would not constitute possession. There is no evidence to prove that the user is exclusive user. It is true that the plaintiffs say that they are owners of the property. Ownership must of course be exclusive. But it is for the Court to decide who is the owner. If there is evidence of exclusive user then perhaps we can infer adverse possession.
3. It may be that there is no evidence on behalf of the Government to show that the suit site belongs to the Government. But there is a presumption under Section 37 of the Land Revenue Code unless that presumption is rebutted by the plaintiffs. It is true that one of the witnesses for the defendant has stated that only the owners of the houses in the Falia can make the use of the Falia open land. He is giving evidence as to what rights the owners of the houses in the Falia have. He is not giving evidence on any question of fact. The question as to who can make uses of the Falia is a question for the Court to decide. It is not a fact on which evidence can be given. In any case this is a suit filed by the plaintiffs to establish their ownership by adverse possession and the burden is on them to prove the title by adverse possession for the requisite period. They led evidence in respect of user by tethering cattle. Such a user does not amount to possession and cannot give rise to adverse possession. No evidence has been led about adverse nature. On both these grounds I must hold that the plaintiffs have failed to prove their title by adverse possession.
4. The Learned Counsel for the respondents has relied on Section 110 of the Indian Evidence Act. That section would come into operation if possession is proved. But in case of mere user without possession that section does not come into operation.
It is true that there is a blind alley in the present case. The suit open site in a blind alley can belong to some or all the owners of the houses in the Falia or it may be public street. There is a presumption under Section 37 of Land Revenue Code which can be rebutted under the said Code by the plaintiffs by leading evidence to prove possession for the requisite period. But this has not been done. As already observed the evidence of user is not evidence of possession and certainly it is not the evidence of adverse possession.
I, therefore, allow this second appeal and dismiss the plaintiffs suit. There will be no orders as to costs.
Certificate for leave to appeal under Clause 15 of the Letters Patent is grarrfed.