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Mahomed Ali Khan and ors. Vs. Khaja Abdul Gunny and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1883)ILR9Cal744
AppellantMahomed Ali Khan and ors.
RespondentKhaja Abdul Gunny and ors.
Cases Referred and Beer Chunder Jobraj v. Deputy Collector of Bhullooah
possession - dispossession--adverse possession--presumption--onus probandi--limitation--joint owners, adverse possession between. - .....dispossession, it has more than once been held by the privy council that the plaintiff is bound to prove possession and dispossession within twelve years maharajah koowur singh v. nund lal singh 8 moore's i.a. 199 at p. 220; raja saheb perhlad sein v. budhu singh 12 moore's i.a. 275 337: s.c. 2 b.l.r. p.c. 111; beer chunder jobraj v. deputy collector of bhullooah 13 w.r. p.c. 23.7. we think further that as a general rule the plaintiff cannot, merely by proving possession, at any period prior to twelve years before suit, shift the onus to the defendant. in the case already cited maharajah koowur singh v. nund lal singh 8 moore's i.a. 199 at p. 220 the plaintiff had adduced evidence to show possession earlier than twelve years before suit; but the privy council treat it as immaterial,.....

Wilson, J.

1. In these suits the plaintiffs sought to have their rights declared to shares in 50 khadas of land, and to be put in possession of them jointly with the defendants. The defendants denied the plaintiffs' title and also pleaded limitation. The lower Appellate Court has decided in favour of the plaintiffs on the question of title, holding them entitled to be put into possession, but for limitation. It has, however, held that their claim is barred by limitation. The question before us is whether the rule of limitation has been correctly applied.

2. The facts found or admitted, so far as they are material for the present purpose, seem to be these: The plaintiffs and the defendants have a good title to the lands in question jointly. At the date of a Thakbust in 1859 they were in joint possession. The whole of the lands were then jungle, yielding, however, some kind of profit, which has been variously described.

3. At some time or times subsequent to that date, but more than ten years ago, a portion of the lands was brought under cultivation, and of the lands so reclaimed the defendants have been in possession from the time of their reclamation. It would appear that the amount reclaimed is some 10 or 12 khadas out of 50, though perhaps what the District Judge says on that point does not amount to an actual finding.

4. With regard to the law, the District Judge says: 'It clearly rests with plaintiffs to prove that a possession, which they admit to have been continuously adverse for upwards of ten years before the bringing of the first suit, did, during the preceding one year and eight months, not exist at all, or did not exist in adverse form. They must prove that a state of things different from what they admit to have existed for so many successive years did, as defendants allege it, not exist at any time during the two previous years.' And again: 'The plaintiffs have distinctly alleged (and this position is admitted by their vakeel) that the exclusive actual possession of defendants has throughout its existence been of an adverse character. It is for them to prove that this sort of possession only commenced within the twelve years prior to their suits.' And he concludes: 'I find that the plaintiffs have failed to discharge the onus on them, and to prove even prima facie that the adverse possession of the defendants commenced within twelve years of any of these suits.'

5. It appears to us that the application of the law of limitation to cases, such as the present, requires considerable care.

6. There is no doubt as to the general rule: That under the former Limitation Act the cause of action, and under the present law the event from which limitation is declared to run, must have occurred within the prescribed period, and that it lies on the plaintiff to show this. Accordingly, where the suit is for possession, and the cause of action is dispossession, it has more than once been held by the Privy Council that the plaintiff is bound to prove possession and dispossession within twelve years Maharajah Koowur Singh v. Nund Lal Singh 8 Moore's I.A. 199 at p. 220; Raja Saheb Perhlad Sein v. Budhu Singh 12 Moore's I.A. 275 337: S.C. 2 B.L.R. P.C. 111; Beer Chunder Jobraj v. Deputy Collector of Bhullooah 13 W.R. P.C. 23.

7. We think further that as a general rule the plaintiff cannot, merely by proving possession, at any period prior to twelve years before suit, shift the onus to the defendant. In the case already cited Maharajah Koowur Singh v. Nund Lal Singh 8 Moore's I.A. 199 at p. 220 the plaintiff had adduced evidence to show possession earlier than twelve years before suit; but the Privy Council treat it as immaterial, saying at page 220: 'The lands in question may have been part of mouzah Gopalpur, and, as such, may have been enjoyed by his (the plaintiff's) ancestor, and yet he may have lost, by lapse of time, his right to recover them.' To this extent we are unable to concur in the view indicated by the Chief Justice in Kally Churn Sahoo. The Secretary of State for India I.L.R., 6 Cal., 725.

8. But possession is not necessarily the same thing as actual user.

9. The nature of the possession to be looked for, and the evidence of its continuance, must depend upon the character and condition of the land in dispute. Land is often either permanently or temporarily incapable of actual enjoyment in any of the customary modes as by residence or tillage or receipts of a settled rent. It may be incapable of any beneficial use, as in the case of land covered with sand by an inundation; it may produce some profit, but trifling in amount, and only of occasional occurrence as is often the case with jungle land. In such cases it would be unreasonable to look for the same evidence of possession as in the case of a house or a cultivated field. All that can be required is that the plaintiff should show such acts of ownership as are natural under the existing condition of the land, and in such cases, when he has done this, his possession is presumed to continue as long as the state of the land remains unchanged, unless he is shown to have been dispossessed.

10. Lands again may by natural causes be placed wholly out of reach of their owners; as in the case of diluvion by a river. In such a case, if the plaintiff shows his possession down to the time of the diluvion, his possession is presumed to continue as long as the lands continue to be submerged. Kally Churn Sahoo v. Secretary of State for India I.L.R. 6 Cal. 725; Mono Mohun Ghose v. Mothura Mohun Roy I.L.R. 7 Cal. 225.

11. When lands which have been in such a condition as to be incapable of enjoyment in the ordinary modes are reclaimed and brought under cultivation, the change is in many instances gradual and difficult of observation while in progress. Diluviated land may take years to reform. Jungle land is often brought under cultivation furtively by squatters clearing a patch here and a patch there at irregular intervals of time. So that it may be a matter of extreme difficulty to prove as to any piece of land, the exact date at which its condition became altered. And as the plaintiff, who has complied with the conditions we have indicated, is in the absence of dispossession presumed to continue in possession as long as the state of the land remains unchanged, it is essential to inquire on whom the burden of proof of the date of the change lies.

12. The true rule appears to us to be this: That where land has been shown to have been in a condition unfitting it for actual enjoyment in the usual modes at such a time, and under such circumstances that that state naturally would, and probably did, continue till within twelve years before suit, it may properly be presumed that it did so continue, and that the plaintiff's possession continued also, until the contrary is shown. The presumption seems to us to be reasonable in itself, and in accordance with the legal principles now embodied in Section 114 of the Evidence Act.

13. It remains to consider the case of Radha Gobind Roy v. Inglis 7 C.L.R. 364 decided by the Privy Council. We do not understand that case as establishing the broad proposition contained in the head note, which would be in conflict with the earlier decisions of the same tribunal. The land in dispute in that case had formed part of the bed of a bhil or lake; the title to the bhil and its bed was found to be in the plaintiff, and he had been in possession so long as the land was covered with water. The bhil gradually dried up and the defendant occupied the land so formed. The date of the drying up of the land and of its occupation by the defendant were in controversy, but these things had certainly happened recently. Their Lordships, having disposed of the other questions which were raised, say: 'The question remains, whether the disputed land had or had not been occupied by the defendant for twelve years before the suit was instituted, so as to give him a title against the plaintiff by the operation of the Statute of Limitation. On this question, undoubtedly the issue is on the defendant. The plaintiff has proved his title; the defendant must prove that the plaintiff has lost it by reason of his, the defendant's adverse possession. And immediately below it is said: 'The Subordinate Judge does not appear to have had his attention directed to the very important question when the new land formed.' The present case is in its facts closely analogous to that case; and the view which we take of the, law certainly accords with the decision of the Privy Council.

14. The presumption of which we have spoken is in no sense a conclusive one. Its bearing upon each particular case must depend upon the circumstances of the case; and it is always liable to be rebutted by evidence. But having regard to the time at which the whole land was jungle, and the comparatively small quantity which up to the time of suit seems to have been cleared, we think that it ought to be considered in this case together with all the evidence; and we remand the case to the lower Appellate Court in order that the question of limitation may thus be again considered.

15. We desire to abstain from saying anything that might seem to fetter the judgment of the learned Judge in dealing with the question upon the whole materials before him; but there are two matters which may have an important bearing upon the case, and to which we think it right to draw attention. In the first place the nature of the profit derived by the joint owners from the land as jungle should be considered. If it should be that they were in receipt of a settled rent, regularly paid like an agricultural rent, the presumption in question might have little, if any, bearing on the case; if the profit was of a different description, the result might be materially different. Secondly, in considering any transaction prior to the time from which the plaintiff admits the defendants possession to have been adverse, it should be borne in mind that the case is one between joint owners, and many acts which would be clearly adverse and might amount to dispossession as between a stranger and the true owner of land, would, between joint owners, naturally bear a different construction.

Richard Garth, C.J.

16. I am sorry that I cannot concur entirely with the view which has been taken of the law by my learned brothers.

17. So far as the result of this particular case is concerned, and the order which my learned brothers have made in remanding it to the Court below, I am quite content to defer to their judgment. It may be, and I trust that in the generality of cases it will be, that the difference of opinion which exists between us may not tend to much diversity of practice. But what I cannot regard as sound law, (although I shall of course duteously accept it after this judgment as our rule of action), is the principle which has been laid down by the rest of the Court upon the subject of presumption.

18. We are agreed that under the old, as well as the present, law of limitation, the plaintiff is bound in cases of this nature to prove a possession and a dispossession within twelve years before suit; and we are also agreed, as I understand, that this proof need not always consist of evidence of acts of possession on the one hand, or of the act of dispossession on the other.

19. Thus it is admitted that in the case of jungle land, or of land covered by water, the Court may, and generally, should presume in the absence of evidence to the contrary, that a possession enjoyed by the plaintiff before the twelve years, has continued until within the 12 years; and in the same way, when the plaintiff has proved his possession within the twelve years, and the defendant has been afterwards found upon the land, the act of dispossession by the defendant may be properly inferred.

20. But what I do not understand, and what I confess I cannot bring myself to believe is, that there exists in this country an arbitrary rule of law, applicable to jungle land or to land covered by water, or in fact to land of any particular kind or character, which does not also apply, according as the circumstances of each case may render it necessary, to land of all kinds.

21. I know of no law in this country, whether statutory or otherwise, which lays down or justifies such an arbitrary rule; the Privy Council, so far as I am aware, have never suggested such a rule, and it seems to me that the true solution of the question is to be found in the well-known principle of law, which, so far as I know, prevails, and may be applied here as properly and beneficially as it is in England, that a seisin or possession of land, which is once proved to exist in a particular person, may be, and often should be, presumed to continue until the contrary is shown.

22. This is only one branch of the still more general rule, which is laid down in Section 1141 of the Evidence Act,--that a state of things once proved to exist is presumed to continue--(See Taylor on Evidence, Section 98 and Section 123, Edition of 1848). The particular rule, as applied to seisin or possession of land, is thus shortly laid down by Mr. Best in his book on Evidence, page 505: 'Where seisin of an estate has been shown, its continuance will be presumed.'

23. Of course this is only a disputable presumption, and one which is entitled to more or less weight, according to the circumstances of each case; and it must be applied at all times with discretion and caution. Where land is actually used and occupied, and the occupier, whoever he may be, is well known in the neighbourhood, there is rarely any occasion to resort to presumption.

24. And where the Court has every reason to believe, that the plaintiff would have no difficulty in proving by direct evidence a possession, if it had been really enjoyed, it would naturally attach little or no weight to any rule of presumption. But if it is shown on the other hand, even in the case of cultivated land or house property, that the plaintiff, who had formerly been in undisputed evidence, had died, or had left the country, or for other reasons was unable, or unlikely to be able, to produce actual evidence of possession, the presumption might then legitimately be resorted to, and entitled to more or less Weight according to circumstances.

25. This I understand to be the view of Mr. Justice Melvill in the case of Pandurang Govind v. Bal Krishna Hari 6 Bom. H.C.A. C. 125 at p. 128 in which, after affirming what we all admit to be the law, that the burthen of proof in cases of this kind is upon the plaintiff, that learned Judge says: 'The burthen of proof being upon the plaintiff, what is he required to prove? Simply, that the cause of action accrued within the period of limitation made, applicable to the suit. This is by no means equivalent to saying that a plaintiff in an action of ejectment must prove that he has been in possession within twelve years. He may not have been in possession within twelve years, and yet the cause of action may have accrued within that period. If a man buy a piece of open ground, he is not bound to enclose it or to build upon it, or formally to take possession of it; nor, if he do formally take possession of it, is he bound by subsequent acts to proclaim the continuance of his possession. So long as the land remains unoccupied, his rights are not interfered with, and he is not called upon to assert them. He has no cause of action, and there is no person whom he could sue. His cause of action accrues when another person takes possession of the land, and not before. If he has omitted to take possession of the land himself, he may not be able to treat the intruder as a trespasser; but he can bring all action to eject him at any period within twelve years from the date of the intruder's occupation of the land.' I do not understand these expressions to apply exclusively to waste land, or to land of any other special character; but to all cases where the production of direct evidence of possession is either difficult or impossible.

27. I observe that Mr. Justice Melvill in a later case Moro Desai v. Ramchandra Desai I.L.R. 6 Bom. 508 at p 510 seems to consider that the Privy Council in the case of Radha Gobind Roy v. Inglis had proceeded upon a view of the law, which was inconsistent with some earlier decisions of that learned tribunal, and also with what had been the practice in the Indian Courts for many years.

I am sorry to say that I myself fell into a similar mistake, if it was a mistake, in the case of Kally Churn Sahoo v. The Secretary of State for India I.L.R. 6 Gal. 725 which has been alluded to in the judgment of my learned brothers. I supposed, but on a closer examination of the cases I think I erroneously supposed, that there was some difficulty in reconciling their Lordships' view in Radha Gobind's case with that which they had laid down in the case of Maharajah Koowur Singh v. The Secretary of State for India 8 Moore's I.A. 199 and other cases alluded to by my brother Wilson .

28. I endeavoured in the case of Kally Churn Sahoo to explain this apparent inconsistency, but I think I was wrong, and for this reason: this last case, as I now believe, proceeded upon the well-known rule to which I have alluded, that a title and seisin when once established must be presumed to continue in those cases at any rate where there is no direct evidence of possession, and where such evidence is, from the nature of the case, either difficult or impossible to obtain. In Radha Gobind's case the defendants, who apparently had first brought the bed of the bhil in question into cultivation, were presumably better able than the plaintiffs to prove when and how the cultivation had commenced; and the case, when one looks at the circumstances of it, was just one of those in which the legal presumption with which I have been dealing might be usefully and properly applied.

29. On the other hand, in the case of Maharajah Koowur Singh, we find that so far from evidence of possession not being forthcoming, a considerable body of evidence was adduced on both sides. No less than eight witnesses were examined on that subject for the plaintiff, and nine or ten for the defendant, and their Lordships, after considering that evidence and the balance of probabilities on either side, decided in favour of the defendant. It is obvious that this was not a case in which the sort of presumption, which I have described could properly or reasonably have been applied, and I may observe before leaving the consideration of that case that I do not read one part of their Lordships' judgment in the sense that has been attributed to it by my learned brothers--I allude to the sentence: 'The lands in question may have been part of mouzah Gopalpur, and, as such, might have been enjoyed by his ancestor, and yet he may have lost by lapse of time his right to recover them.' I do not understand this to mean, and upon looking at the context I think it clearly does not mean, that in the view of their Lordships the plaintiff's ancestor had ever in fact been in possession. They meant to say that even if he had been in possession, he might have lost, by lapse of time, his right to recover the property.

30. And I think also that the two other cases decided by the Privy Council Rajah Sahib Perlhad Sein v. Budhoo Singh 12 Moore's I.A. 275: S.C. 2 B.L.R.P.C. 111 and Beer Chunder Jobraj v. Deputy Collector of Bhullooah 13 W.R. P.C. 25 must be looked at in the same light. In Both of those cases we find that evidence was called on both sides; and that their Lordships came to a distinct conclusion upon that evidence. There was no necessity, therefore, and no reason, so far as I can see, for acting upon the principle for which I am now contending.

31. But in Radha Gobind's case there was reason for acting upon that principle, and it appears indeed to have been the first case, amongst all those to which our attention has been called during the argument, in which it became necessary for their Lordships to resort to that principle. It will be found that in the generality of cases of this kind, the parties as a rule can and do produce more or less direct evidence of possession, and when they do so, the Court naturally and properly acts upon that evidence without resorting to any principle of presumption.

32. For these reasons I hope, as I stated in the first instance, that the difference which exists in this case between my learned brothers and myself will prove to be one rather of principle than of practice.

1[Section 114: The Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct, and public and private business in their relation to the facts of the particular case.]

Court may presume existence of certain facts.

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