Seshagiri Aiyar, J.
1. It is with some hesitation that I agree in the conclusion at which my learned colleague has arrived. The facts found may be thus summarised; (1) The property in dispute is a public pathway; (2) The plaintiff built the projection in front of the house between the years 1868 and 1888 and has been in possession. There is no evidence as to any acts of possession by the plaintiff or the Government prior to 1868. On these findings the courts below have come to the conclusion that the Government have a subsisting title. The decided cases lay down that where a private person proves that he has been in possession for over 12 years, the onus is on the Government to show that they had some possession within 60 years of the suit. I think there are two propositions involved in this--one, that from the fact of possession for a long time a presumption arises that the possessor was in enjoyment for a longer period than is actually covered by the evidence let in by him, and the other, that by way of corollary from the first, the onus is cast on the Government to show that they were in possession within the sixty years which they are entitled to under Article 149. I must take it that the finding that plaintiff was in possession between 1868 to 1898 must be read as meaning that his possession originated only in 1868. Even in this view, the Government has yet to establish that they were in possession within 60 years. It is possible that as against the Government some other person was in possession before 1868. That is the reason why the Government are required to prove a subsisting title. What to a certain extent, has reconciled me to the view that my learned colleague has taken is the fact that the property in question is a public pathway, and the presumption is that the public have been using every portion of it unless some one had encroached upon it and obstructed their user. If that presumption is given effect to, it must follow that prior to 1868, the public as beneficiaries of the Government who have set apart the property for their use has been in enjoyment; and that it was only in 1868 that this enjoyment was interfered with. It is mainly with reference to the peculiar nature of the property that I distinguish this case from Kutheperumal Rajah y. The Secretary of State for India I.L.R. (1907) M. 245 Krishna Aiyar v. The Secretary of State for India I.L.R. (1910) M. 173 20 M.L.J. 71 Venkatrama Aiyar v. The Secretary of State for India I.L.R. (1910) M 362 : 20 M.L.J. 74 and Narayanasami Pillai v. The Secretary of State for India : (1912)23MLJ162
2. The Second Appeal must be dismissed with costs.
Kumarasami Sastri, J.
3. The plaintiff is the appellant. He sued to recover possession of a portion of the koradu alleged by him to have been taken possession of and wrongfully demolished by the Government and for damages. Both the lower Courts have found that the portion of the koradu claimed by plaintiff, and demolished by Government was part of a public street and was encroached upon subsequent to the survey in the year 1868. The appellant contends that the finding of both courts is erroneous and based on insufficient evidence, but I see no reason for holding that the evidence on record is insufficient or that there has been any mis-appreciation of evidence.
4. It seems to me that on the findings that there was an encroachment and that it was not prior to the year 1868 the suit was rightly dismissed. Under Madras Act III of 1905 all public roads and streets are deemed to be the property of the Government and it is not disputed before us that the case should be treated on the footing that the street is Government property. The contention of the appellant's vakil is that as the appellant has on the findings of both courts proved possession for only 40 years it should be presumed that possession was with him prior to that and that it lay on the Government to show that they were in possession at any time within 60 years prior to the date of suit. Reliance has been placed on Krishna Aiyar v. The Secretary of State for India I.L.R. (1910) M. 173 : 20 M.L.J. 71 Venhatarama Aiyar v. The Secretary of State for India in Council I.L.R. (1910) M. 362 : 20 M.L.J. 74 and Narayanasami Pillai v. The Secretary of State for Inida : (1912)23MLJ162 . I do not think that these cases lay down an inflexible rule that in a suit against the Government for recovery of possession of immoveable property and damages for trespass, the plaintiff is entitled to succeed merely by showing possession for over twelve years before suit unless the Government can show possession or title within sixty years. All that they decide is that when possession whose origin cannot be definitely fixed has been proved against the Government for a long series of years (not less than twelve) it is reasonable to presume that such possession commenced at a period over sixty years ago so as to throw on the Government the onus of showing either a subsisting title or possession within sixty years.
5. In the present case the property encroached upon was a public street at the time of the encroachment and user by the public till the date of the encroachment will be equivalent to possession by the Government. I find nothing which would justify the inference that any body except the Government was in possession prior to the year 1868, the earliest possible year when the appellant or his predecessors in title could have got into possession.
6. The appeal fails and is dismissed with costs.