JUDGMENT : 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. 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. 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 temple cannot be inferred. The question as to what must be the character of the possession which would entitle the person in possession to claim the benefit of S. 110, Evidence Act was considered and answered in Hanumantrao v. Secy. of State, 25 Bom. 287: (2 Bom. l. R. 1111). The view taken by Ranade J. was that possession to come within the scope of S. 110, Evidence Act, must be possession founded on a prima facie right. This was interpreted by Fawoett, J. in Vasta Balwant v. Secy. of State, 45 Bom. 789 : (a. I. R. (8) 1921 Bom. 177) as meaning that the possession must be of such a character as leads to a presumption of title. Both these cases were relied on in Suraji v. Secy. of State, a. I. R. (24) 1937 Bom. 193 : (169 I. c. 327) and were followed. In this case the suit was against the Government for a declaration that the plaintiff was the owner of certain plots in a village. The plaintiff adduced oral evidence to show that he had been using a large area of them for the purposes of tethering and storing grass and that he had an otla standing thereon for a number of years. It was also proved by him that he had erected hedges to the west and south of the plots. On this evidence it was held that the kind of user proved by the plaintiff cannot establish anything beyond his undisturbed user for a certain period. It was not sufficient to prove such kind of legal possession as would give rise to a presumption of title in his favour. Proof of such kind of possession was not sufficient to throw the burden on the Government under S. 110, Evidence Act. It was not sufficient to prove such kind of legal possession as would give rise to a presumption of title in his favour. Proof of such kind of possession was not sufficient to throw the burden on the Government under S. 110, Evidence Act. Government did not succeed in proving its allegations nor did it make any attempt to contradict or refute plaintiff's evidence as to his acts of user. It was held that the plaintiff having not proved such possession as would raise presumption of title in his favour, the plaintiff's case cannot be strengthened by any weakness in the defendant's case. This last case was followed in Secy. of State v. Chimanlal, A. I. R. (29) 1942 Bom. 161 : (I. l. R. (1942) Bom. 357). Divatia J. on this question delivered his opinion at page 171 in the following words : "The effect of the principal decision has been considered by this Court in a recent ruling in Suraji v. Secy of State, 39 Bom. l. R. 216: (a. I. R. (24) 1937 Bom. 193) and the principle as summarized by Broom-field J. is that the possession under S. 110 must be of such a character as would lead to a presumption of title, and it is on that ground that the decision in Sanumantrao v. Secy of State, 25 Bom. 287: (2 Bom. l. R. 1111) is distinguished. It is necessary, in my opinion, therefore to the plaintiffs to prove that their possession was of such a character as would lead to the presumption of title, and not such a sort of possession as would be regarded as wrongful in its origin. In my opinion, it could not be the law that a man might usurp somebody else's land and without the period of adverse possession say that "I am in long possession of this land. In my opinion, it could not be the law that a man might usurp somebody else's land and without the period of adverse possession say that "I am in long possession of this land. I have erected buildings on it, and although I have no title in my favour and even though I have got possession of the land by usurpation or encroachment, I am entitled to remain in possession under Section 110 and that nobody can oust me." The presumption under S. 110 would apply only if two conditions are satisfied, viz that the possession of the plaintiff is not prima facie wrongful, and, secondly, the title of the defendant is not proved." The mere acts of user of the land in this case as mentioned above do not amount to 'possession of such a character, as would lead to a presumption of title. The possession, if possession it could be called, was prima facie wrongful. There was none, to hinder and every one used the open land as suited him best. None on behalf of the temple ever claimed the exclusive right to any definite portion of the land as of right. For this reason I hold that the appellant is not entitled to rely on S. 110, Evidence Act. 3a. The learned District Judge assumed thai possession had been proved. He dismissed the appellant's suit relying on an unreported Division Bench decision of this Court in Second Appeal No. 56 of 1947. This judgment is in accord with the view taken in Vasta Balwant v. Secy. of State, A. I. R. (8) 1921 Bom. 177: (45 Bom. 789) in which the learned Chief Justice relied on the decision of the Privy Council in Secy, of State v. Ghillikani Ramarao 43 I. a. 192: (a. I. R. (3) 1916 p. C. 21). The Madras High Court in this last case bad held that "Though the title was originally in the Crown still as the possession of the claimants for twenty years prior to the notification was found, it rested upon the Crown to prove that it had a subsisting title by showing that the possession of the claimants commenced or became adverse within the period of limitation i, e. within sixty years before the notification." 4. Their Lordships of the Privy Council were of opinion that 'the view thus taken of the law was erroneous'. Their Lordships of the Privy Council were of opinion that 'the view thus taken of the law was erroneous'. Their Lordships said: "Nothing was better settled than that the onus of establishing title to property by reason of possession for a certain requisite period lies upon the person asserting such possession. It is too late in the day to suggest the contrary of this proposition. If it were not correct it would be open to the possessor for a year or a day to say 'I am here; be your title to the property ever so good, you cannot turn me out until you have demonstrated that the possession of myself and my predecessors was not long enough to fulfil all the legal conditions." That fact that open Bites in the City of Indore are the property of Government is an indisputable fact. The title of the Government subsists unless proved facts of the case lead to the reasonable inference that the right to the land has been parted with or been extinguished by adverse possession. That, in my opinion, is the result of the authorities discussed above. 5. In the result, the appeal is dismissed with costs.