1. In this suit the plaintiff claimed that the disputed parcel of land was situate within his jama, and that he had been lately dispossessed from it by the defendants. The defendants, on the other hand, contended, that the land formed part of their jote, and that the plaintiff had never been in possession. In the first Court the Munsif, coming to the conclusion that the plaintiff had not been in possession of the land within twelve years, dismissed the suit. The plaintiff appealed and on the case coming before the District Judge, he arrived at the conclusion that, as the plaintiff had never measured the land, nor produced any documentary evidence through his landlord, that the land had been measured by the latter, nothing that he could produce in the way of oral evidence would be sufficient to justify a decree.
2. In this Court it has been urged upon us, that, under Section 110 of the Indian Evidence Act, as the plaintiff had proved possession for some time within twelve years before the suit, that possession by itself shifted the onus of proving title from the plaintiff to the defendants, and that in this case the onus was wrongly placed. Further it is said that the plaintiff was not debarred by the non-production of documentary evidence from proving his title in whatever way he deemed best.
3. In support of the first contention the learned pleader has referred to Gour Paroy v. Wooma Soonduree Debia 12 W.R. 472 and he has intimated to us that this decision is to be supported on the ground that it is based upon English law. We are of opinion that this contention is unsound. The same question was before their Lordships of the Privy Council in the case of Wise v. Amirunnessa Khatoon L.R. 7 I.A. 81 and their Lordships held, that land to which a plaintiff is unable to make out a title cannot be recovered on the ground of previous possession merely, except in a suit under Section 15, Act XIV of 1859, now Section 3 of the Specific Relief Act (I of 1877), which must be brought within six months from the time of dispossession. This decision in our opinion settles the matter.
4. In regard to English law it may well be that the difference of opinion referred to in the case of Asher v. Whitlock L.R. 1 Q.B. 1 will be settled in accordance with the decision in that case, but it is not quite certain that it would support the appellant's contention to the extent urged before us. The same point was also touched upon in the case of Danford v. Mc Anulty L.R. 6 Q.B.D. 645 and there Bramwell, L.J., said: 'A man in possession of land has a right to call upon a plaintiff in ejectment to prove his title; if the plaintiff does prove a prima facie title, then the man in possession must prove his. The rule is the same in respect of chattels; an action is brought to recover a chattel, the plaintiff must show a title to the chattel before he can call upon the defendant to prove his title.' But whatever may be the result of these cases, it is evident that, according to the law of this country, as authoritatively laid down by their Lordships of the Privy Council, mere anterior possession is not sufficient proof of title to dispossess a person in possession. We are, therefore, of opinion that this ground cannot succeed in second appeal.
5. In regard to the second point, we think that the appellant has made out a case sufficient to justify a remand. We are of opinion that the District Judge was not justified in restricting the plaintiff as to the manner in which he should prove his case, and that the case must go back in order that he should determine on the whole evidence on the record whether the plaintiff has a title to the land. Costs to abide the result.
6. I also concur in remanding this case. On the question of onus in a suit to recover possession of immoveable property not being a possessory suit under Section 9 of the Specific Relief Act, I have always held the opinion now expressed by my learned colleague, and in one case I was overruled by the learned Chief Justice and Morris, J. The judgment of the Privy Council which has just been referred to was not quoted in argument to us, and as that, in my opinion, settles the law, it does not become necessary, according to the usual rule, to refer the point for the decision of a Full Bench.