1. The original suit from which this appeal arises was a suit in ejectment, the plaintiff alleging title under a sale deed, Exhibit B, dated 22nd November, 1898, from the two sons of one Sethuraman Servai, Kaliappan and Audiappan and alleging also possession up to 10th February, 1919, and a dispossession by the defendants on that day. The suit was brought on 18th February, 1920, for possession from the defendants and consequential reliefs. The Lower Court dismissed the suit on its finding that the plaintiff had not proved possession within 12 years of suit. The plaintiff appeals.
2. The suit site is punja No. 120 in Eravancheri village, Guttakainattu Taluk, Devakotta. It has of late years owing to its potential value as house-site become the subject of a scramble for possession which has led to claims well and ill-founded based on documents or otherwise being put forward by various people and to litigation thereon. In the course of hearing before us the remarkable fact was disclosed that never in the whole course of the history of this plot in the Courts had it been measured, and that parties had throughout adopted a hypothetical figure of area which bears small relation to the actual area. We have now had the plot properly measured and the correct area may be taken as 63,597 sq. ft. The plot appears to be an open site, regarded of late years as suitable for house-sites but for nothing else, and it has been dealt with as an area enclosing so many house-sites of 1,200 sq. ft. each. At one time it appears to have been cultivated, and plaintiff himself at one time asserted (see Ex. I, dated 3rd January, 1901) that he bought out a usufructuary mortgagee, Alagap-pan, so that presumably in those days there was some usufruct accruing from the land. Even if there was any such cultivation then and the plaintiff's allegation of having bought out a usufructuary mortgagee was not made merely to support a claim of title, any form of cultivation of the land seems to have ceased long before 12 years before suit. The plot is in a zernin tract, and if there had been cultivation, there must have been payment of a punja rent; but no one on either side has produced any proof of such payment.
3. One thing, however, seems clear, that in regard to a portion of the plot said to measure 7,200 kulis or square feet the possession of it had passed from the plaintiff, if he ever had it, by the litigation, Exhibit E series. [Their Lordships discussed the evidence and continued : ]
4. The net result of this discussion is that for the period of 12 years before suit up to the date of the alleged dispossession in 1919 there was no sort of effective enjoyment of the plot by any one, and the land had not been put to any sort of use which can be styled effective possession. The claims of each party to have been in effective possession before early in 1919 are unsupported by any reliable evidence and must be rejected.
5. The plaintiff on this footing argues that he is entitled to stand upon his title, and upon the legal presumption that possession follows title and continues until the title-holder is dispossessed. To see how far that will carry him, it is necessary to inquire : into his title. [Their Lordships examined the documentary evidence and continued : ]
6. The result will be that the plaintiff's title is prima facie good to the extent only of one-third of 63,597 minus 7,200; that is, 18,799 square feet in the north of the plot. It is not open to the plaintiff to plead for more than this. The question whether or not the decree-holder in Exhibit VII-E had or had not enforced his decree and obtained possession is irrelevant when the plaintiff must succeed, if at all, merely on title. It is not open to him claiming on title alone to claim that the Court should presume possession to any extent larger than that for which he has proved a valid title in himself. An invalid title carries with it no presumption of possession.
7. The defence case on title is weak. It does not start before 1909 when D.W. 2, the alleged pattadar under Exhibit IV, sells tinder Exhibit VIII to 7th defendant. D.W. 2 produced no title deed and claimed that the property was ancestral. All his pattas, he says, except Exhibit IV, were burnt in a fire, and later on he says he never had more than 2 pattas, one of which is lost and the other is Ex. IV. He executed no muchilikas. His theerva receipts were also burnt. Obviously no reliance can be placed on such a witness. This patta, Exhibit IV, which is here already noted as suspicious and insufficiently proved, is only 4 months before the date of Exhibit VIII and was probably cooked up for a title deed, and that was at the time when the Exhibit VII litigation was going on. The 7th defendant sold to 8th defendant in 1913 under Exhibit IX and 8th defendant agreed in 1918 to sell to defendants 1 to 4. In so far as possession is to be inferred from title, there is nothing produced by the defence to rebut the prima facie conclusion we have already drawn regarding the extent of plaintiff's title, and we find the plaintiff has proved a pre-existing valid title to 18,799 square feet in the north of the suit plot.
8. To sum up, so far as effective possession goes, neither party has established it earlier than 1919. So far as title goes, that of the plaintiff is superior to, and more reliable than, that of the defendants to the extent of 18,799 square feet in the north. To that exent the plaintiff's title carries with it a presumption that he was in such possession, as the land was capable of, which possession his vendors had and his possession was not effectively invaded till 1919, only two years before suit. He is entitled to have that possession restored.
9. It is urged as a point of law by the defendants that the plaintiff cannot succeed on the mere plea of title when he comes into Court with an allegation of definite acts possession and dispossession and has failed to prove this. This plea is based on the fact that the plaintiff alleges acts of possession, of storing timber and putting up a prickly pear fence, neither of which acts we can regard as proved. The plea might have force if effective acts of possession by the defendants prior to the dispossession alleged in the plaint had been proved. But we find none such are established and they certainly cannot be presumed. The net result therefore is that the plaintiff's possession presumed by law upon his title has not been displaced by any act of dispossession prior to 1919, and his failure to prove specific acts of possession does not afford any proof of defendants' possession or any displacement of the possession which under the law is presumed, from his title. In these circumstances it is unnecessary to go at length into the law on the subject. It is true, of course, as a general rule that when the plaintiff seeks on the strength of title and dispossession to oust defendants in possession he must prove possession within twelve years of suit : Mohima Chunder Mozoomdar v. Mohesh Chunder Neoghi . But the possession to be proved is such possession as the property is capable of or such as has been the normal method of user. When each party who claims possession is unable to prove any act of effective possession and, therefore, the normal method of possession is not referable to any such act, possession must follow title, since the defendants are no more able than the plaintiff to claim effective possession for 12 years before suit. Possession in such circumstances is with the party holding title. The case in Rakhal Chandra Ghose v. Durgadas Samanta (1922) 26 C.W.N. 724 is strongly relied upon for the proposition that this presumption does not follow in a case where acts of possession have been pleaded and the evidence of both parties is equally unworthy of reliance. That ruling sought to carry further the proposition of the Privy Council in Runjeet Ram Panday v. Goburdhun Ram Panday (1873) 20 W.R. 25 30 (P.C.):
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; but, where there is strong evidence of possession, as there is here, on the part of the respondents--opposed by evidence, apparently strong also on the part of the appellant--their Lordships think that, in estimating the weight due to the evidence on both sides, the presumption may, under the peculiar circumstances of this case, be regarded.
10. The Calcutta Weekly Notes case cited as authority for its proposition Thakur Singh v. Bhogeraj Singh I.L.R. (1899) C. 25 Lala Singh v. Mir Latif Hossein (1915) 21 C.L.J. 480 and Fakira Lal Sahu v. Munshi Ramcharan Lal (1916) 1 Pat. L.J. 146. In the first of these cases we do not find the proposition contended for set out in the judgment although it does appear in the head-note. In the second case the Bench quotes Thakur Singh v. Bhogeraj Singh I.L.R. (1899) C. 25 as if it had in fact set out that proposition which we do not find set out. The character of the property in that case and the nature of the possession that would ordinarily be exercised over it is not noted. The third case makes a special exception in the case of land of a special character, such as waste, jungle or land under water. In the Calcutta Weekly Notes case the land appears to have been cultivable and in fact cultivated until a tank was excavated. If parties are to be held strictly to their pleadings, no doubt land over which acts of user are asserted is land over which acts of user may be and have been exercised and therefore can be ordinarily exercised. But we think the real test is whether in fact acts of user were being regularly exercised over it by one or the other party so as to constitute, in the words of the Calcutta Full Bench in Mahomed Ali Khan v. Khaja Abdul Gunny I.L.R. (1883) C. 744, 'such acts of ownership as are natural under the existing condition of the land,' during the critical period between 12 years before suit and the actual dispossession which forms the cause of action. And we find that none such were in this case in fact exercised. In such circumstances it does not seem to us proper that, where there has been no effective possession by any one, the title-holder should be deprived of what he has acquired merely because he equally with the other side has exaggerated his case in the pleadings. In a case like the present when effective enjoyment was not the customary method of exercising the right of possession, it must be held that the plaintiff by his title obtained such possession as the property was capable of, and therefore his possession goes with the title to the extent to which that title is found valid. [See Mohamad Saheb v. Tilokchand I.L.R. (1922) B. 920 and Venkata Sontayajulu v. Satyamarayana (1926) 25 L.W. 603.] For these reasons we think that the Lower Court's decree should be modified and the plaintiff given a decree for the possession of 18,799 sq. ft. in the north of the suit plot. The strip will be a quadrilateral figure whose northern boundary is the northern boundary of the suit plot, whose east and west sides are of equal length along the east and west sides of the suit plot and whose area is 18,799 square feet. In view of the fact that neither party has put forward a true case, we direct that each party bear his own costs in both Courts. Plaintiff's plan will be attached to and form part of the decree.