1. The question in dispute in the two cases out of which these appeals arise is as to whether the plots of land with which they are respectively concerned appertained to the putti of the plaintiff, or to that of the defendants. It is not necessary to enter into the history of this litigation, which has been pending since the year 1890. Suffice it to say that when the cases came for the last time before the Subordinate Judge of Tirhut on appeal, that officer held that they were barred by limitation, and accordingly dismissed them.
2. The view held by the Court of First Instance was that in both cases the land in dispute was of such a character that neither party had been in regular possession of it. The learned Munsif says: 'The disputed lands in suit No. 147 are admittedly putti (waste) lands over which neither party cared to exercise acts of possession till shortly before the institution of the suits, and the attempt at definite and lasting possession on both sides gave rise to the disputes. It might very well be that the defendants' tenants coming to live near the lands now and then passed over them or kept cowdung on them, and in the same way the plaintiff and his co-sharers also might have tied their cattle on them, These acts having been occasional, neither party cared to oppose the other. When the plaintiff, however, proceeded to lay claim to them definitely by acts of ownership, and especially by the butwara proceedings, the defendants opposed them. As regards the disputed lands in suit No. 40 I am inclined to think that the defendant, Munha Singh, in his evidence before Babu Rajendra Nath, spoke the truth when he said that the lands were formerly swamps. When these swamps became culturable in certain seasons only of the year, it is very probable that now a man on plaintiff's behalf and now a man on defendants' behalf grew crops on such bits as could be sown, the man on behalf of either party sowing such crops as he found convenient, regard being had to the season and the consistency of the soil at the particular period. This accounts for the fact that the witnesses on neither side give any consistent account of the cultivation of the kinds of crops. As in the case of the disputed lands in suit No. 147, so in this case, too, when the swamps gradually became fit for regular cultivation and either partly attempted it, it gave rise to disputes which culminated in the butwara proceedings and in these suits. Under such circumstances I think I should hold that possession goes with title. Dharm Singh v. Hurpershad Singh (1885) I.L.R., 12 Cal., 38.'
3. The Munsif had previously remarked that he found it difficult to rely upon the general statements of the plaintiff's witnesses as to possession, and that the evidence of the witnesses for the defendants was also equally unworthy of reliance. Upon the merits of the case the Munsif found that the plaintiff was entitled to recover a portion of the land for which he sued.
4. The learned Subordinate Judge was, we think, right in holding that the Court of First Instance did not correctly apply the case of Dharm Singh v. Hurpershad Singh (1885) I.L.R., 12 Cal., 38, and that the true application of that case would be where the evidence of possession is strong on both sides and apparently equally balanced, in which case preference should be given to the evidence on the side of the party with whom the title was found. At the same time he does not appear to have considered the case from the point of view from which we think it ought to have been considered in the light of what the Munsif says about the character of the lands in dispute.
5. As to the question what in fact was the character of the lands he does not say anything, and we do not know whether he differed from the Court of First Instance on that point. The learned Subordinate Judge seems to lay down as a general proposition that if the evidence of the plaintiff, on whom lies the onus to prove possession, be not worthy of reliance, he cannot succeed even if he had a good title. There are, however, certain classes of cases to which a general proposition of this kind would not be applicable, because it may be that the lands in dispute are of such a character that they do not permit of actual enjoyment in any of the ordinary modes. We would refer to the case of Mahomed Ali Khan v. Abdul Gunny (1883) I.L.R., 9 Cal., 744: 12 C.L.R. 257, decided by a Full Bench of this Court. That was a case of jungle lands, as to which it was stated that the plaintiff and the defendant ha good title jointly; that at the date of a thakbast in 1859, they were in joint possession; that the whole of the lands were then jungle, yielding, however, some kind of profit which had been variously described; that at some time or times subsequent to that date, but more than ten years before the institution of the suit a portion of the lands was brought under cultivation, and that of the lands so reclaimed the defendants had been in possession from the time of their reclamation. The Court below had held that it was for the plaintiffs to prove that they had been in possession within twelve years prior to the suit and found that they had failed to discharge the onus. It was pointed out by this Court that, although there was no doubt as to the general rule that it lay upon the plaintiff to show possession within twelve years, possession is not necessarily the same thing as actual user. 'The nature of the possession to be looked for,' it was said, '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 29] 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 be is shown to have been dispossessed.' It was again remarked: '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 enquire on whom the burden of proof of the date of the change lies.' After considering this point, the learned Judges observed that the presumption which would arise would be in no sense a conclusive one; that its bearing upon each particular case must depend upon the circumstances of the case; and that it was always liable to be rebutted by evidence. They considered that, having regard to the circumstances of that case, the question of limitation ought to be considered together with all the evidence, and they remanded the case to the Court below in order that it might be so considered.
6. We desire to draw the attention of the learned Subordinate Judge to that case, as it does not appear to us that he has considered these cases from the points of view therein indicated, and in our judgment if the Munsif is correct in his view as to the character of the lands in dispute, it is essentially necessary to the right decision of the question of limitation in the present eases that it should be considered with the whole of the evidence in the case. It is necessary that he should in the first place consider whether there is, as the Munsif found, anything special in the character of the lands, and if he finds that they have such a special character, he should inquire into the nature of the possession which either party enjoyed, and then determine the question of limitation upon the whole of the evidence in the case.
7. We very much regret the necessity of prolonging this already unduly protracted litigation; but we feel that it is necessary in the ends of justice to make this remand.
8. We accordingly remand these cases to the Subordinate Judge for retrial with reference to these observations.
9. Costs will follow the result.