Back
1925 Supreme(Cal) 211
CALCUTTA HIGH COURT
Greaves, J., Cuming, J.
Panchanon Sarkar & Ors. - Appellant
Versus
Basanta Kumari Dasi & Ors. - Respondent
Decided On : 11-03-1925
In ejectment suits, the plaintiff must prove possession within 12 years of the suit date, and possession follows title.
Headnote:
Ejectment - Possession - Limitation Act - Article 142 - AIR 1922 Cal 557 - 10 C.W.N. 630 - Secretary of State v. Krishnamani Gupta [1902] 29 Cal. 518 - Basanta Kumar Roy v. Secretary of State for India AIR 1917 P.C. 18 - Runjeet Ram Pandey v. Goburdhun Ram Pandey [1873] 20 W.R. 25 (P.C.) - Thakur Singh v. Bhogeraj Singh [1900] 27 Cal. 25
Fact of the Case:
The plaintiff sued for recovery of possession of certain chur lands, claiming that the land formed part of his zamindari mauza Arara. The defendants resisted, asserting that the land belonged to their mauza chur Lankar and that they had acquired title by adverse possession.
Finding of the Court:
The trial Court found the suit barred by limitation as the plaintiff failed to prove possession within 12 years of the suit date. The District Court, however, held in favor of the plaintiff, establishing his right and title to a portion of the disputed land and shifting the onus of proof to the defendants.
Issues: The main issue was whether the plaintiff proved possession within the statutory period, and the allocation of the burden of proof between the parties.
Ratio Decidendi: The court emphasized that in ejectment suits, the plaintiff must prove possession within 12 years of the suit date. It also highlighted the duty of both parties to produce relevant evidence and the principle that possession follows title.
Final Decision: The case was remanded to the District Court to determine if the plaintiff proved possession within 12 years. The appellant was entitled to costs in the Court of Appeal.
JUDGMENT
Cuming, J. - The facts of this appeal are as follows:
The plaintiff in the suit) sued for recovery of possession of certain chur lands. His case was that the land in dispute formed part of his zamindari mauza Arara. The land has been washed away some time after the revenue survey and from the year 1310 (October 1903) began to re-form and the plaintiff took possession and remained in possession through a tenant This tenant's holding was sold in execution of a decree for rent and purchased by the plaintiff. When he went to take possession in 1318 (1911) he was resisted by the defendants. Hence the suit which was instituted on the 6th October 1915. The defence was that the land in suit appertained to the defendants' mauza chur Lankar, that the plaintiff never possessed than lands. The land bad re-formed 30 years before the date of suit and the defendants had acquired a title by adverse possession.
2. The trial Court found that the suit was barred by limitation. The plaintiff had failed to prove that the land had re-formed in 1310: on the contrary they had re-formed 30 years ago and defendants had been in possession all the time. The plaintiff had failed to prove that he had been in possession within 12 years of the date of suit and hence he dismissed the suit.
3. On appeal to the District Court the learned District Judge held that the plaintiff had established his right and title to 18 bighas of the disputed land which were a re-formation in situ of. his estate, mauza Arara. He held that the lands were re-formed in 1903 and that it was not established by the evidence that the 18 bighas were re-formed over 12 years before the date of suit. It was for the defendants to produce what evidence they could to show that they had been in possession for 12 years.
4. Further that in a case like this, where the plaintiff proves his right and title by reference to ancient documents and the defendants are in possession, it is the duty of both parties to produce all the relevant evidence, which is in their power and it) is the duty of the Court to balance the evidence finally and to give the award to the parties on whose side there is a fair preponderance of evidence. He finally allowed the appeal to the extent of 18 bighas.
5. The defendants have appealed to this Court. On their behalf Mr. Guha has contended shortly, that the plaintiff sues in ejectment. The case is governed by Article 142 of Schedule I of the Limitation Act, and it is for the plaintiff first to prove that he was in possession within the statutory period. The learned Judge in the Court below had not approached the ease from the point of view, but had wrongly placed the* onus on the defendants. The plaintiff bad failed to prove his possession within the statutory period and his suit should have been dismissed as barred by limitation. The respondent argues that if the land came above water less than 12 years before the date of suit he had discharged the onus. 'All he had then got to show is that he had at some period before the date of the suit a title to the land.
6. Now the plaintiff sues in ejectment. His case in his plaint is one of possession and dispossession and Article 142 clearly applies, and to succeed he must first of all prove that he had possession within the statutory period: see Rakhal Chandra Ghose and Others Vs. Durga Das Samanta and Another, AIR 1922 Cal 557 . In this case all the decisions on this point have been discussed and dealt with and id is unnecessary for me to go over the same ground. The learned Judges remarked that cases of deviated land or jungle or waste lands are no exception to the general rule, that a plaintiff, who is dispossessed and brings a suit for recovery of possession must show, that he was in possession within twelve years of the date of suit. Their Lordships of the Privy Council affirm the same principle in the case of Rani Hamanta Kumari Debi v. Maharaja Jagadindra Nath Roy 10 C.W.N. 630. This was also a case of diluvion and alluv
