Possession of land must be of such a character as to lead to a presumption of title under S. 110, Evidence Act in order to establish ownership and shift the burden of proof.

1. In Sadar Bazar in the City of Indore, there is a Shiv temple bearing house No. 42. On one side of the temple there is a well, a cattle trough and a kachha otla. On the three Bides of the temple and the otla, on the North, South and the East, there is open land. Agrawal Panchas are the Sewaks of the temple and the appellant plaintiff looks after the management of the temple on behalf of the Panchas. Some time in the year 1946, he started setting up a wire enclosure, thereby appropriating a part of the open land to the temple. The Municipal Commissioner claimed the open Government land to be vested in him under S. 36, Indore Municipal Act, and called upon the plaintiff - Appellant to remove the wire fencing. On 19-10-1946, the appellant instituted a suit in the Court of the Munsif, Indore City, against the Munioipal Commissioner for a declaration that the land enclosed was the property of the temple and for an injunction restraining the defendant from interfering with the work of erecting the enclosure.

2. The learned Munsif found that the land had been proved to been the possession of the plaintiff for about 25 years and under S. 110, Evidence Act he should be presumed to be the owner of the land enclosed. He decreed the plaintiff's suit. On appeal the decree was reversed by learned District Judge, who held that the possession proved was for a period of less than sixty years which did not affect the right of the Government to the open site. He dismissed the plaintiff's suit. The plaintiff has come to this Court in second appeal.

3. The appellant has not adduced any evidence to establish his title to the land. He relies on his possession of the land over a period of several years as throwing the burden of proof under S. 110, Evidence Act, on the respondent that the plaintiff is not the owner. It is an undisputed fact in the case that the land sought to be enclosed by a wire fencing forms part of the larger open land on the three sides of the temple. The first question is whether the land has ever been in the possession of the temple, and if so, what has been the character of the possession. The first Court below held that it was in the possession of the plaintiff and the learned District Judge assumed that it was so. The learned Munsif found in favour of the plaintiff's possession because the plaintiff deposed that the land had been in the possession of the temple and so also spoke his two witnesses Chhaganlal and Badrinarayan. But he did not examine these statements further. Possession is a mixed question of law and fact. It has to be inferred from facts proved and cannot be founded on the bare statements of witnesses that a party has been in possession. Reading the statements of plaintiff (P. w. 2) and his witness Chhagalal (P. w. 3) and Badrinarayan (P. W. 4) the facts proved are these. That water was lifted from the well for the cattle-trough by means of bullocks and the bullocks ran over a part of the land. There is a Pipal tree on the land and there was a Tulsi plant at one time which was worshipped by the women visiting the temple. There were Kaner trees the flowers of which were presumably offered to the God Shiv in the temple. Beyond these acts of user there is nothing else proved. There is not a jot of evidence that an exclusive right over the land was ever claimed by the manager of the temple. The land being open land was and could be used by any and every body but that it was exclusively used by any one has not been proved. There being a temple on the land some one planted the Tulsi tree. There being a cattle-trough the bullocks ran over the ground to lift water for the trough. Anybody could use it and none claimed it as his own. That is the position in my opinion, so far as the possession of the land is concerned. It was in 1946, for the first time that the plaintiff on behalf of the temple sought to fence in the land with a view to claim the exclusive right to it. From acts of user the possession of the