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Judgment
Madhavan Nair, J.—Plaintiffs, 1, 2, 3, 5 and 18 are the appellants. This second appeal arises out of a suit instituted by the plaintiffs for
possession of the suit property and for demolition, of a wall built by defendants 1 and 2 on the plaint site. The plaintiffs'' case is, that the suit
property belongs to them by purchase, that they have been in effective possession of the property for a considerable number of years and that
while they were in possession, on or about the 25th of February, 1924, the defendants trespassed upon it and began to construct the wall referred
to in the plaint. The District Munsif found both title and possession in favour of the plaintiffs and gave them a decree. The learned Subordinate
Judge found on appeal that the plaintiffs'' title was proved but that they failed to prove possession within 12 years and accordingly dismissed the
suit.
The only point argued in second appeal relates to the decision of the Subordinate Judge on the question of limitation. The land in question, is,
admittedly waste land. The contesting defendants gave evidence to show that prior to 1924, for about 6 or 7 years a butcher was in possession of
the land with their permission. This evidence was intended to disprove the specific case of dispossession set up by the plaintiffs in the year 1924. It
is not seriously contended that Article 142 of the Limitation Act is not applicable to the case. The averments in the plaint, the issues and the
evidence show that the case falls clearly under Article 142 and not under Article 144. What the learned Advocate-General argues is that having
regard to the nature of the land, which is admittedly a waste land, the learned Subordinate Judge should have held that possession follows title and
that the plaintiffs were therefore in possession of the suit land, and that inasmuch as the defendants have not shown possession for more than 7
years, the question of limitation should have, been decided in plaintiffs'' favour. In other words, he argues that having regard to the special
circumstances of the case it does not seriously matter whether Article 142 or 144 applies to the case; and that since possession should be deemed
to have been presumptively with the plaintiffs as they have proved their title to the land, the defendants should not be allowed to succeed unless
they prove adverse possession of the land for over 12 years. This argument is fallacious and cannot be accepted. It is true that in the caste of waste
land, if the plaintiff proves his title to it he can prove possession by relying on the presumption that possession follows title inasmuch as possession
of waste land cannot be proved by acts of actual user; but if the plaintiff puts forward a case of effective possession and adduces evidence in
support of it as the plaintiffs have done in this case, then, he cannot give up that case and rely upon any ""presumption"" in support of his possession
because the special case set up by him is inconsistent with any such presumption. The following passage from the judgment in Rakhal Chandra
Ghose v. Durga, Das (1922) 67 I.C. 673 makes this point very clear:
... Where definite evidence of acts of possession is forthcoming there-is no difference between the proof of possession in the case of jungle, waste
or uncultivated lands and in that of cultivated lands, But whereas in the case of cultivated lands the plaintiff will fail if he does not prove his
possession within 12 years, in the case of jungle or waste lands, if he proves. his title, there is a presumption in his favour where, having regard to
the nature of the land, possession cannot be expected to be proved by acts of actual user and enjoyment. If, however, the plaintiff asserts that he
exercised acts of ownership upon the land and adduces evidence in support of such assertion, he cannot, where such evidence is disbelieved by
the Court, turn round and rely upon any presumption, because the case set up by him negatives the existence of circumstances which would give
rise to the presumption, and is inconsistent with it.
In the present case it is stated in the plaint that the plaintiffs were in possession of the suit plot, that they tried to erect a temple on it and then
erected a Nandavanam; and while they were in such effective occupation and enjoyment the defendants trespassed and began to build a wall on
the plot in question (see paragraphs 7, 12 and 13 of the plaint). In this connection it should also be noted that not content with saying that they
were in such effective occupation of the suit plot they relied upon the possession and enjoyment to such an extent that they claimed also
prescriptive title to the land by adverse possession (see paragraph 13 of the plaint). Evidence in support of these pleas was also adduced by them.
These circumstances would show how inconsistent is the present plea of ""presumptive possession"" with the actual case put forward by them in the
plaint and sought to be supported by their evidence. The defendant''s evidence of possession of the suit plot on their behalf for over 7 years was
intended only to rebut the actual dispossession in 1924 alleged by the plaintiffs. Having regard to the case put forward by the plaintiffs, the
defendants were not called upon to prove any case of adverse possession for over 12 years. In my opinion the onus was rightly thrown by the
lower Courts On the plaintiffs of proving possession of the property within 12 years of the suit; and as the evidence on the question of possession,
was disbelieved by the lower appellate court the suit was rightly dismissed. I would therefore dismiss this second appeal with costs.