In a suit for possession, where the plaintiff's evidence of possession is weak or unsatisfactory but not valueless or wholly incredible, the presumption of possession arising out of ownership can support the plaintiff's case.

S. BARMAN, J.

( 1 ) THE plaintiff is the appellant, -- In this second appeal, -- from a confirming decision of the learned District Judge, Berhampur, whereby he confirmed a decision of the learned Munsif, Aska, and dismissed the plaintiff's suit against the defendants which, originally, was for permanent injunction with the alternative prayer for possession subsequently converted to suit for possession, in the circumstances hereinafter stated.

( 2 ) THE plaintiff's case, -- shortly stated, -- was this: The suit lands stood recorded in the name of the plaintiffs father in 1941; in 1942 plaintiff's father died; in 1953 the final record-of-rights dated October 2, 1953 shows that the suit lands stood in the name of the plaintiff (Ext. 1 ). The defendants challenged the said entry in the record-of-rights, and filed a revision in the Board of Revenue on the basis of an unregistered sale deed dated February 20, 1942 stated to have been executed by the plaintiff's father in favour of the defendants: the said revision to the Board of revenue, -- challenging the entry in the plaintiff's name in respect of the suit land,-- was dismissed; thereafter on September 29, 1954 the plaintiff filed the suit for permanent injunction or in the alternative for possession; later, in course of the trial the prayer for injunction was given up and it was converted into a suit for possession. The defence, taken in the suit, was that the plaintiff's father had sold the suit lands to the defendants by the said unregistered sale deed (Ext. C), for a consideration of a sum of Rs. 50/-, which therefore required no registration.

( 3 ) THE trial Court held that the plaintiff failed to prove possession within 12 years from the institution of the suit, and accordingly dismissed the plaintiff's suit; there was, however, no categorical finding by the trial court that any title passed to the defendants under the said unregistered sale deed (Ext. C ). In appeal, the learned lower appellate Court found that the defendants were in possession; he also did not give any finding regarding passing of title to the defendants under the said unregistered sale deed (Ext. C); the learned lower appellate court upheld the decision of the trial court dismissing the plaintiff's suit. Hence this Second appeal.

( 4 ) THE points. .--urged on behalf of the plaintiff appellant,--are that the plaintiff had established his title to the suit lands; that there is no finding that the title to the suit lands passed from the plaintiff's father to the defendants; that the defendants failed to rebut the presumption of correctness of the entry in the final record-of-rights of 1953 (Ex. 1) showing that the suit lands stood in the name of the plaintiff. Indeed, except defendant No. 1 who deposed before the trial court as d. W. 1,--there was no other witness examined, on behalf of the derdts. to rebut the presumption of correctness of the entry in the record-of-rights, whereas the plaintiff called as many as 4 witnesses who all spoke about the plaintiff's title and his having continued in possession.

( 5 ) IT is incontrovertible that ordinarily in a suit for ejectment the plaintiff must prove his antecedent title and possession within the statutory period; but cases may arise where possession may be inferred only from title and other circumstances of the case, even though the evidence may not conclusively establish actual physical possession; the presumption of possession arising from title is not available where the land is capable of actual possession by cultivation or otherwise and there is no evidence of possession or the evidence adduced is unworthy of credit; but this presumption is available in all cases, namely, where the evidence is equally strong and apparently equally well balanced on both sides so that it is difficult to determine where the truth lies; further where the evidence, on both sides, is weak or unsatisfactory, but not valueless or wholly incredible, in such cases, the plai