1. This is an appeal by the Secretary of State for India, represented by the Collector of Malabar, against the decision of the District Court of North Malabar allowing the claim of one Ponnampitath Parapraven Kunhamed Haji to certain lands, of which it had been intended by the Governor of Madras in Council to constitute a reserved forest under the 3rd and following sections of Madras Forest Act No. V. of 1882. A Forest Settlement officer was accordingly appointed and, it is to be presumed, proceeded as required by Section 6 of the Act, when the abovenamed Kunhamed (now respondent) came forward claiming to be the owner of the land in question. The Forest Settlement officer thereupon enquired into the case, and though he was not satisfied with the evidence adduced in support of the case set up for Government, viz., that the land in question belonged to the Kanot Nambiyar and was escheated to Government, rejected the claim of the present respondent on the ground that he had failed to establish his title, the burden of proof being on him and not on the Government, as the latter occupied the position of defendant in the case.
2. On appeal, the District Judge reversed the decision of the Forest Settlement Officer, remarking that though there was an absence of proof of jenm title on the claimant's part, there was sufficient evidence to justify the conclusion that his family had been in uninterrupted possession for more than 60 years, while on the other hand no escheat was proved.
3. The first ground now taken on behalf of the Government in the second appeal is that the District Court erred in throwing the burden of proof on the present appellant; and that as the respondent had failed to prove his title to the lands claimed by him, his claim was rightly dismissed by the Forest Settlement Officer.
4. I do not think it necessary for the disposal of this appeal to consider the general question on which side the burden of proof lies in cases of this kind; for, even assuming it to be on the claimant (respondent), I think he has proved a sufficiently lengthy possession to shift the burden on to the opposite party. The documentary evidence adduced by him in support of his possession and enjoyment of the property in question is found by both the Lower Courts to be genuine; and there is in these Exhibits IX to XLI enough proof of possession of different parts of the property in question by the respondent's family for a period of GO years, i.e., from 1820 to 1880 when the respondent admittedly ceased to exercise rights of ownership in the property 'owing to objections made by Government officers to his meddling with the land.' The District Judge's finding of the claimant's family's possession for 60 years is, no doubt, arrived at by taking the period from the Malayalam year 988, i.e, 1813, mentioned in Exh. IX as the date of a previous lease, whereas, as has been pointed out by the appellant's counsel, there is nothing in Exh. IX to identify the previously leased property therein mentioned with any portion of the property now in dispute. Consequently 1820, Malayalam year 995, is the date from which possession can be held to be proved by Exh. IX; but when such possession is proved by the other documentary evidence to have continued till 1876, I do not see why it should be considered to have ceased then or at any time prior to 1880, when was admittedly passed the order prohibiting the claimant's interference with the land. In the absence of proof to the contrary, it is to be presumed that the possession of land proved to have extended from 1820 to 1876 continued till the prohibitory order of 1880, and if so, the period does not fall short of 60 years. Moreover, the finding is not that the possession commenced in 1820, but merely that it is proved to have existed from that time. But is it necessary on the part of the claimant to give positive evidence of possession for 60 years As has been pointed, out by the respondent's Counsel, the period of 60 years prescribed by Article 149 of the Indian Limitation Act applies only to suits 'by or on behalf of the Secretary of State for India,' whereas the contention in the present case that the burden of proof is on the respondent is rested on the very circumstance that the latter and not the Secretary of State is the plaintiff in the suit. If so, it is not a suit 'by or on behalf of the Secretary of State' and therefore the period of 60 years prescribed by the Indian Limitation Act is inapplicable. On the other hand, if the suit were to be held to be one by or on behalf of the Secretary of State and the burden of proof held to be on him, as plaintiff, it must undoubtedly fail: as both the Lower Courts have found that the escheat alleged has not been proved--Exh. A being clearly worthless as evidence of the alleged escheat.
5. The presumption of ownership from the fact of possession cannot be held to prevail where, as in the present case, the possession of the appellant is found to have commenced only in 1880, when was issued the order prohibiting the respondent from interfering with the plaint property. The finding that the respondent was in possession even till 1876 (which is within 12 years prior to the commencement of this litigation) is sufficient to shift on to the appellant the burden of proving title. Moreover in the District of Malabar and in the tracts administered as part thereof, the presumption is not that forest lands are the property of the Crown: Secretay of State v. Vira Rayan I. L. R. 9 M, 175.
6. It is true that, as contended by appellant, no evidence, documentary or oral, has been produced by respondent of the exercise of acts of ownership by him or his family over the 4 hills noted in the margin Vanancher. Ellarad. Mutrad. Chekkeri. Considering that the appellant denied the respondent's claim as a whole, I do not think that the mere fact of his not having taken objection to each item separately can be held to be a tacit admission that all the property included within the boundaries, specified in the claim put in by the respondent constituted one single estate. On the other hand, it is quite intelligible that the respondent failed to adduce evidence in support of his claim to these particular lands under the impression that the whole of the property in question was to be considered as a single estate, and that it was sufficient if he adduced evidence of his possession of different portions of such entire estate. He should, I think, be afforded as opportunity of proving that these lands were also in his possession till 1880, or that they are so situated as to justify the finding that they also belong to him. For this purpose, a plan is required showing all the lands included within the boundaries given in the claim petition (which is treated as the plaint in this case) in which map should be shown nominatim each and all of the lands the subject of this claim, and also (with inference to para. 6 of the memorandum of second appeal) any hill or land within these boundaries not claimed by the respondent. Further evidence may be adduced on either side before the District Judge, who will be required to consider the same together with the plan above referred to and submit his finding as to possession by respondent of the four hills, Yanancheri, Ellarad, Mutrad and Chekkeri in question, within two months after the receipt of this order when seven days after posting of the finding in this Court will be allowed for filing objections.
Muthusami Aiyar, J.
7. This is one of those second appeals which relate to a considerable tract of forest land in Malabar. The contest in this case is as to the claimant's title to the property in dispute. Both the Lower Courts concur in finding that the claim of escheat set up for the Crown has not been proved. They also agree in thinking that the claimant has proved adverse possession from 1820 to 1876. Differing however from the Forest Settlement officer, the District Judge finds further that the claimant has made out title as against the Crown by proving more than 60 years' possession. The question for consideration in this second appeal is whether the decision of the Lower Appellate Court is correct.
8. The first question argued before as is as to the burden of proof. I see no reason to doubt that it lay on the claimant in this case to prove his title in the first instance. The tract of land in dispute was constituted by the Government into a reserved forest under Madras Act V. of 1882, and a notification was published to that effect in 1886. Land at the disposal of Government for that purpose is defined in the Act to include all unoccupied land. The claimant himself admitted that since the Malayalam year 1055 (1880) he ceased to be in possession owing to the objections taken by officers of Government to his meddling with it. Whether the Government was since actually in, possession through its officers or only excluded the claimant from possession in 1880, the land was unoccupied for six years at the date of the proclamation within the meaning of the Act so as to cast the onus of showing title in the first instance on the claimant.
9. The next question urged upon us is that the finding on the question of title is one which we ought to accept with reference to provisions of Section 584 of the Code of Civil Procedure. The finding by the Court of First Instance is that from the Malayalam year 995 (1820) to 1876, the claimant has exercised a continuous series of acts of ownership in regard to some one or other of these hills. Referring to documents IX to XLI and the recital in document IX of a prior lease of 1813, the Lower Appellate Court observed that it was impossible to escape from the conclusion that the claimant's family had more than '60 years' uninterrupted possession of the hills which they claim. The first objection taken to this finding is that Ex. IX, dated 1820, which is the earliest document in evidence is neither proved nor legally admissible. It purports to be the counterpart of a lease more than 60 years old and comes from proper custody, and both the Lower Courts have considered it to be genuine. Moreover, no objection was taken to its reception in evidence in either of the courts below, and there is other evidence in proof of acts of subsequent enjoyment. This objection must be overruled.
10. The second objection to the finding is that the recital of a prior lease of 1813 in Exh. IX is no evidence of such lease. A reference to the document shows that it is doubtful if the plots mentioned in it as the subject of a prior lease are not different from those demised by the document, and there is nothing on the record to show that they are included in the property now in litigation. Again, such recitals are only evidence of reputation in the case of public or general rights, and the objection taken in appeal must prevail. There are, however, four presumptions which arise in favor of the claimant from the proved possession of his family from 1820 to 1876 and which materially support the finding of the judge. In the first place, the prior possession of the claimant's family raises a presumption of title in its favor. It is true that the Forest Settlement officer refers to evidence showing that the Government interrupted the claimant's possession in 1877 and was in possession from 1880 and that the judge does not apparently dissent from that view. It is clear, however, that the possession of the Government falls short of 12 years, and as both courts find that its claim of escheat is not proved, the presumption of ownership arising in favor of the Government from present possession is met by the presumption of ownership arising in favor of the claimant from prior possession. In Doe v. Cooke 7 Bing. 46. the plaintiff showed a presumptive title arising out of twenty-three years' possession, and the defendant set up a later possession of 10 years. It was held in the absence of proof of title on either side that there was presumption against presumption which threw on the defendant the burden of establishing, if he can, a title of a higher description.
11. Another presumption in favor of the claimant's title arises from the fact that though Exh. IX shows that his family was in possession in 1820, yet it does not show that it commenced in that year only. In a case like this in which he claimed that his family had the jenm title for 600 or 700 years or from time immemorial, there will arise a presumption that the possession of the family extended to a much earlier period than 1820 unless there is some circumstance in the evidence to indicate that the possession originated at a particular point of time. Though Act V of 1882 throws the onus of proof on the claimant in the first instance, yet it does not disable him from proving his title against the Crown in the same way in which he is entitled to prove it in a suit between party and party nor take away from him the benefit of presumptions arising in favor of his title from possession. In the Singampatti case, I. L. R 9 M 285,* possession was proved only until 1818 and for less than 66 years, and yet it was held by this Court that there was sufficient proof of title. Again, there is the farther fact that though the claimant's possession was interfered with in 1877 and his right of possession was disputed, yet he was not actually dispossessed until 1880 when he was finally prohibited from meddling with the lands in dispute. This again favours the contention that until he was wholly dispossessed, his possession must be taken to have continued. Further, it was observed in I. L. R 9 M 179, there was no presumption in Malabar that forest land belonged to the Crown. For these reasons, I do not think that the second objection can be supported.
12. The third ground of objection is that the District Judge has dealt with the several hills in dispute as if they formed together one estate and referred to no common characteristic nor peculiarity in support of his procedure. This objection would be valid in regard to these hills as to which there is no reliable evidence of prior possession from which title can be presumed. On the view that prior possession is prima facie evidence of title unless it is met by proof of title on the part of Government, I am unable to uphold the contention that 60 years' possession must be proved as regards each of the lands in dispute unless there was some common characteristic with reference to which possession of some hills may be treated as the possession of all.
13. The next objection is that as regards the four hills mentioned in the fourth ground in the memorandum of second appeal, there is no evidence of prior possession. There is no documentary evidence regarding any of them, and the judge has expressed no opinion as to the weight due to the evidence of witnesses 4 and 5, which is said to refer to Mutrad hill. I concur in the order proposed by my learned colleage in regard to the four hills.
14. With reference to the 6th ground of objection mentioned in the memorandum of second appeal, it is desirable to have a plan showing with precision the boundaries comprising the hills in regard to which the claim is rocognized.
15. For these reasons, I concur in the order proposed by my learned colleague.
[On the finding being returned, the court delivered the following:]
16. The finding of the judge is that the claimant has not proved that he was at any time in possession of any of the four hills now in question and that none of these hills is so connected with those found to be the claimant's as to justify a finding that these hills also belong to the claimant.
17. These findings have been objected to, but on looking into the evidence we find they are correct.
18. The result is that we disallow plaintiffs claim to these hills, i.e., Vanancheri, Ellarad, Mutrad, and Chekkeri and to this extent modify the decree of the Lower Appellate Court; while we uphold the decree in so far as it concerns the rest of the property claimed in this suit.
19. Each party will bear his own costs of this appeal.