1. This appeal arises out of a suit for declaration of title to, and recovery of possession of, one bigha of land.
2. The disputed one bigha has been found to be an ascertain to another 12 cottas of land. The 12 cottas of laud was found by the Court of first instance to belong to the plaintiffs. The lower Appellate Court, however, was of opinion that the plaintiffs could not succeed, because they had not set up a case of accretion but had set up a case of re-formation in situ, and he gave also other reasons for deciding the question of title against the plaintiffs.
3. It is unnecessary, however, to discuss the question of title as we think that the finding upon the question of limitation disposes of the case. It has been found by the learned Subordinate Judge that the plaintiffs' suit is barred by limitation as they had failed to prove possession within 12 years of the suit.
4. It is contended before us on the assumption that the plaintiffs are the rightful owners, (as it most be assumed for the purpose of considering the question of limitation without deciding the question of title), that in order to constitute dispossession of the rightful owner by a trespasser, it is not sufficient to show the trespasser's possession but it is also necessary to show the cessation of the owner's possession. Our; attention is drawn to a finding of the Court of first instance, namely, that the nature of the disputed land is such that it is not improbable that for sometime both the plaintiffs and the defendant No. 1 used the land, for neither party was in actual personal possession and none of the grain-dealers or boat-makers or boat repairers who actually used the land was in occupation of the whole of the land, and as they had but transitory interest in the land in their occupation, they would not ordinarily question the right of entry of another person upon a different portion of the disputed land. The mere fact that the defendant No. 1 through his tenants did some acts of possession on the disputed land would not necessarily amount to the plaintiff's dispossession.'
5. It is true, as pointed out by Banerji, J, in the case of Sheikh Sohnur Ali Hazirika v. J. Huttman 1 C.W.N. 277, that there is no dispossession unless there is termination of the possession of the rightful owner followed by the actual possession of another.
6. In the case of Jones v. Chapnan (1849) 2 Ex. 803 at p. 821 : 18 L.J. Ex. 456 : 154 E. R.717 : 76R.K. 794 Maule, J., observed:
If there ate two persons in a field, each asserting that the field is his, and each doing tome act in the assertion of the right of possession, and if the question is, which of those two is in actual possession, I answer, the person who, has the title is, in actual possession, and the other person is a trespasser.
7. Upon the facts as found by the Court of first instance, both parties were in possession through temporary tenants, each exercising acts of possession over different portions of the land for temporary periods. The learned Subordinate Judge, however, on appeal has not accepted that case for the plaintiffs. He has considered the evidence adduced by the plaintiff and disbelieved it. He finds 'there can, therefore, be no doubt that from 1306 at least the defendant No. 1 has been in possession on his own behalf.' The suit was instituted 15 years after 1306. further on, the learned Judge finds that the plaintiffs were dispossessed by defendant No. 1.
8. It is contended, however, that even if the plaintiffs' witnesses were disbelieved, the learned Judge ought to have considered whether the evidence of the defendants as to possession was such as to constitute ouster of the plaintiffs, having regard to the character of the land and the nature of possession said to have been exercised, and, if not, whether there was not any presumption in favour of the rightful owner.
9. But the case of the plaintiffs themselves was that before 1310, the land was actually in the cultivation of their tenants, that in 1310 there was a surrender and that subsequently the plaintiffs were in possession by letting out the land to grain-dealers and for the purpose of boat repairs and other acts. The plaintiff's case, therefore, was not that the land was incapable of enjoyment though the land was not cultivated. The defendant's case was that he was in continuous possession of the entire land (as part of his jama) through tenants. If, therefore, according to both parties, definite acts of ownership were exercised over the land the Court must decide the case upon the evidence adduced by the parties without resorting to any presumption.
10. In the case of Ram Bandhu v. Kusu Bhattu 5 C.L.R. 481 Garth, C. J., observed: 'As long as reliable evidence of acts of ownership is forth coming, there is no difference between the proof of possession in the case of jungle or uncultivated lands, and that in the case of cultivated lands, any such proof is often times forthcoming.... But it does sometimes happen that neither party to a suit has exercised any acts of ownership at all over the-land in question which are capable of proof; and then in the doubt created by such absence of proof, or of reliable proof, the Court is obliged to resort to evidence of title, and to presume that the party who has the title has also the possession. But in the present case there would seem to be evidence of at least some acts of ownership; and if so, it would be right for the Court to decide the case upon that evidence, so far as the question of possession is concerned, without resorting to the proof of title.'
11. It may be pointed out, that the words reliable evidence' 'or reliable proof' in the decision quoted above appear to have been used in the sense of definite and unequivocal acts of ownership which can be acted upon, because the learned Judges observed: 'But in the present case there would seem to be evidence of at least some acts of ownership' the matter was before this Court in second appeal and this Court directed the lower Court to decide the case upon the evidence of possession. This Court in second appeal could not possibly express any opinion whether the evidence was 'reliable' in the sense that the evidence should be believed.
12. In the present case the land was not jungle land, and although uncultivated subsequent to 1310, it was the case of both parties that the, land was let to grain-dealers and for the purpose of boat-repairs and other acts, and, as stated above, the finding, of the Court of first instance that both parties exercised possession by letting out small and different portions of the land to different tenants for temporary periods has not been accepted by the Court of Appeals below.
13. We think, having regard to the definite findings that the plaintiffs were dispossessed by the defendants, and that the defendants have been in possession (by which we think was meant exclusive possession) for a period of 16 years before the suit, the suit must be held to be barred by limitation.
14. The appeal accordingly fails and is dismissed with costs.