1. The plaintiff's suit is for possession of the plaint land. Inasmuch as he alleges dispossession by the defendant the onus is upon him to prove possession and dispossession within 12 years. The Courts below have dismissed his suit and he has preferred this second appeal.
2. The contention of Mr. C. V. Venkatachari for the appellant is that the lower Courts ought to have relied upon the presumption that possession follows title, and that the decision in Raja Shiva Prasad Singh v. Hira Singh  6 Pat. L. J. 478 which is also reported in 62 I. C. 1, is not correct. The Subordinate Judge in para. 7 of his judgment remarks:
Relying therefore on the Full Bench decision of the Patna High Court reported at p. 1 in Raja Shiva Prasad Singh v. Hira Singh  6 P. L. J. 478 where it was held that in a suit for ejectment where the evidence of possession within 12 years of the suit is found to be equally valueless on both sides, the plaintiff has failed to satisfy the burden of proof cast upon him of proving his possessions within that period by proving merely that title at some antecedent period existed in him.
3. This finding, Mr. Venkatachari contends, is an unsatiafactory one and inasmuch as the evidence let in on both sides was unsatisfactory, the Court ought to have drawn the presumption that possession follows title and should have given a decree to the appellant. The question for decision is in what cases would the Court be justified in relying merely upon the presumption that possession follows title and giving a decree to the plaintiff, when the suit is one for possession of property on the allegation that the plaintiff was dispossessed within 12 years of the suit. In other words, whether the Court would be justified in a case falling under Art. 142 of the Limitation Act to rely merely upon the presumption of law as to possession, when the plaintiff has not satisfactorily made out dispossession within 12 years. The onus being upon the plaintiff to make out possession and dispossession within 12 years, if he is unable to discharge the burden, the Court ought to dismiss the plaintiff's suit. In a case where the defendant does not adduce any evidence but puts the plaintiff to proof, if the plaintiff's evidence is unsatisfactory and the Court is not in a position to accept it, could it be said that, relying upon the presumption of law as to possession it is bound to give a decree in plaintiff's favour. I think each case would depend upon the nature of the property in dispute and the nature of the possession which the plaintiff is bound to prove. In a case where the plaintiff is not able to prove effective possession as in the case of an open site on which anybody could walk or throw rubbish or stack temporarily firewood, gravel or anything else like it, the Court would be justified, where the defendant does not adduce satisfactory evidence as to possession, in relying upon the presumption of law as to possession following title and giving a decree to the plaintiff on proof of his title and also in eases where the plaintiff proves his title but cannot prove effective possession as in the case of forest lands or vast wastes, the Court would be justified in relying upon the presumption of law alone as to possession and giving a decree to the plaintiff. This also applies to cases where the evidence on the side of the plaintiff and on the side of the defendant is unsatisfactory, and the Court is not in a position on the evidence to come to a conclusion as to possession. The decision of the majority of the Full Bench in Raja Shiva Prasad Singh v. Hira Singh  6 P. L. J. 478 is:
If it is found that the evidence produced by both the plaintiff and the defendant as to possession is unworthy of credit the plaintiff's suit must fail, inasmuch as the presumption which arises upon proof of title cannot be called in aid to give weight to evidence unworthy of credit any more than if no evidence at all had been given.
4. Dawson-Miller, C. J., observes at p. 491:
Assuming that there was no evidence worthy of credit on behalf of either party as to possession, which is what the District Judge found, assuming as it is assumed, and I think properly assumed in the judgment now under appeal, that the plaintiff in a suit for ejectment must prove not only his antecedent title but also his possession within 12 years of the suit, then in the absence of any credible evidence as to possession I consider that the plaintiff must fail and that the presumption arising from title cannot be called in aid to give weight to evidence unworthy of credit any more than if no evidence at all had been given.
5. I respectfully agree with the above observation. Mr. C. S. Venkatachari relies upon the dissenting judgment of Jwala Prasad, J., and contends that that ought to be followed. He also relied upon a judgment of my learned brother Ramesam, J., in S. A. No. 1421 of 1921. In that case Ramesam, J., has not discussed the case law at any length. The observations of learned Judges in each case should be taken along with the facts and circumstances of the case. In S. A. No. 1421 of 1924 the land in dispute was an open plot and was one which was not capable of effective possession. Reliance is also placed by Mr. Venkatachari on Mahamad Saheb v. Tilokchand 46 Bom. 920 No doubt some of the observations of the learned Chief Justice may appear to support his contention, but his observation at p. 924 gives a clue to some of the observations which otherwise might be held to apply to a case falling under Art. 144. The learned Chief Justice observes:
Possession of those sites would naturally go with the possession of the shop, and when the defendant asserted his right over the open sites he would have to show in the absence of any evidence that those sites ceased to be appurtenant to the shop, and that he had been in possession adversely against the owner of the shop.
6. When the property in dispute is an open site in front of a shop it is for the defendant to make out satisfactorily that he dispossessed the plaintiff and was in possession for more than the statutory period. In such cases the Court would be justified in applying the presumption of law to the plaintiff's case and giving him a decree on the ground that possession went with the title, even though his evidence as to possession is not in any way superior to the evidence adduced by the plaintiff. The learned Chief Justice further goes on to say:
Eliminating all the oral evidence on both sides as being unsatisfactory (and naturally, considering the position of these open sites, and the difficulty of proving active user, it would be unsatisfactory), we think the learned Assistant Judge was perfectly right in holding that possession went with title.
7. The observation 'considering the position of these open sites, and the difficulty of proving active user', makes the meaning of the learned Chief Justice clear, and that observation goes to show that Mahamad Saheb v. Tilokchand 46 Bom. 920 is not in conflict, with the decision in Raja Prasad Singh v. Hira Singh  6 P. L. J. 478 In Runjeet Ram Panday v. Goburdhan Ram Panday 20 W. R. 25 their Lordships of the Privy Council observe at p. 30:
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 respondent 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; and with the aid of it there is a stronger probability that the respoadent's case is true than that of the appellant.
8. The case in Madan Mohan Singh v. Braj Behari Lal  5 Pat. L. J. 592 need not be considered at length. That case was referred to by the referring Judges in Raja Shiva Prasad Singh v. Hira Singh  6 P. L. J. 478 and it was observed that it was not in conflict with the view of the Full Bench in Raja Shiva Prasad Singh v. Hira Singh  6 P. L. J. 478 As I said above there are only two exceptions to the well established principle of law that in a suit for ejectment it is for the plaintiff to make out satisfactorily that he was in possession within 12 years before suit and the dispossession was within that period, the first exception being where the Court is unable to make up its mind one way or the other on account of the conflicting evidence in the case in which case the Court may rely upon the presumption as to possession and decide in favour of the plaintiff, and the second exception, where the property is such that the plaintiff cannot prove effective possession for 12 years such as an open site, jungle land or a vast waste, if the evidence is not satisfactory on both sides, the Court may draw the presumption in favour of the plaintiff and give him a decree. This presumption that possession follows title is one which the Court in the circumstances of the case may draw. It is not one of those presumptions which the Court is bound to make in favour of the plaintiff. There is no other point in the case. The Second Appeal fails and is dismissed with costs.