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1924 DIGILAW 226 (ALL)

Shin Prasad Singh v. Muneshwar Dube

1924-04-16

body1924
JUDGMENT Neave, J. - This was a suit brought by the plaintiffs appellants for a declaration of their title to or, in the alternative, for possession of a moiety of Grove No. 1024. This grove admittedly belonged to Musai Singh and Gajraj Singh in equal shares until in 1864 Gajraj Singh's half was sold in execution of a decree and purchased by Han want Singh, the father of plaintiff No. 1. Hanwant Singh obtained formal possession, and at the settlement of 1882 the names of his representatives Bisheshar Singh and Sheo Baran Singh, cousin and elder brother of plaintiff No. 1, were recorded along with that of Musai Singh. It is further admitted that in 1908 Nankai Singh, a son of Gajraj Singh sold the half share now claimed by the appellants to defendant respondent No, 1 and that the other half, belonging to Musai Singh, was sold in 1915 to defendant No. 2. The appellants' case is that plaintiff No. 1 was away on Military Service for about 20 years and did not return to the village till six or seven years before the institution of this suit. He alleged that be and his minor nephew (plaintiff No. 2) had always been in possession of half the grove and that it was not till a dispute arose over a fallen branch of a tree that he discovered that the defendants had any claim to the property. He then applied for correction of the entry in the revenue papers but without success, and was, therefore, driven to file this suit in the Civil Court. 2. The main defence set up was that the plaintiffs bad not been in possession since the settlement of 1882 and that the suit was barred by limitation. Both the Courts below have accepted this plea and have dismissed the plaintiffs' suit. 3. In appeal the only argument pressed has been that the burden of proof was wrongly thrown by the Courts below on the plaintiffs, who were called upon to show that they bad been in possession within twelve years before the institution of this suit. Their learned Counsel, relying on the decision of the Privy Council in Secretary of State v. Chellikani Ram Rao (1916) 39 Mad. 617=43 I.A. 192= 81 M.L.J. 891=20 C.W.N. 1311= (1916) 2 M.W.N, 224=14 A.L.J. 1114=20 M.L.T. 435=4 L.W. 486=35 I.C. 902=18 Bom. Their learned Counsel, relying on the decision of the Privy Council in Secretary of State v. Chellikani Ram Rao (1916) 39 Mad. 617=43 I.A. 192= 81 M.L.J. 891=20 C.W.N. 1311= (1916) 2 M.W.N, 224=14 A.L.J. 1114=20 M.L.T. 435=4 L.W. 486=35 I.C. 902=18 Bom. L.R. 1007 =25 C.L.J 69 P.C. and a ruling of this Court in the case of J at Chand Bahadur v. Girwar Singh (1919) 41 All. 669=52 I.C. 636=17 A.L.J. 814 contends that as the title was shown to be with the plaintiffs, it was for the defendants to prove their adverse possession. It certainly does appear that the onus was wrongly placed by the first Court, whose first issue was. "Do the plaintiffs own any share of the disputed grove and have they been in possession thereof within 12 years next before the institution of the suit." But evidence was given by both parties and both Courts concurred in finding on this evidence that the defendants have proved their possession or that of their vendor ever since 1882. As both sides produce evidence the question of the initial onus loses its importance. The facts of this case distinguish it clearly from 41 Allahabad, where the defendant failed to prove his adverse possession. 4. In the present case there is a concurrent finding by two Courts that the respondents have been in possession of the share in dispute for much more than the requisite twelve years. This finding is one of fact and is largely based on the evidence of the plaintiffs' own witnesses, and it cannot be disturbed in second appeal. 5. One other argument was addressed to the Court, which does not appear distinctly in the grounds of appeal. This was that the possession of Nankai Singh was that of a co-sharer and could not therefore be adverse to that of the respondents. There is no force in this argument. The appeal fails and is dismissed with costs on the higher scale.