JUDGMENT : 1. This appeal is filed by the Commissioner Municipality Indore against the decree passed by the Additional District Judge Indore. 2. The facts of the case are that one Gopalpuri purchased in court-auction in the year 1926 some property in the Harsidhi Mohalla at Indore. The property consisted of a bungalow, a house, and certain open land. Sale-certificate was issued in favour of Gopalpuri by the Court on 14-10-1926 and is produced in this case as Ex. P/1. According to the description of the property given in the sale-certificate there is to the east of the bungalow an open land measuring north-south 60 feet, and east-west 58 feet. The dispute in the present suit is confined to a strip of land measuring 5 feet east-west. 3. In the year 1948 Gopalpuri applied to the Municipality for permission to erect a wire fencing on this open land. The permission as prayed for was refused on the ground that the land in dispute namely 5' east-west and 112'-6' north-south belonged to the Municipality and was recorded in the Khasra as waste land. The plaintiff was, however, allowed to erect the fencing on the rest of the land. 4. Gopalpuri was not satisfied with this order. He challenged the correctness of the 'Khasra' entries and produced his evidence before the Municipal Commissioner to satisfy him that the land in dispute was really his private property. The Municipal Commissioner was not satisfied that Gopalpuri had been in possession for more than 25 years and refused to change his previous order. According to the Commissioner possesion for 20 or 25 years was not sufficient to prove the plaintiff's title to the land in dispute. On 16-4-1949 the Municipal Commissioner gave a 'Dakhla' to the plaintiff Ex. P/7 and directed him to establish his claim in a competent Civil Court. Plaintiff Gopalpuri therefore brought the present suit on 26-2-1949 for declaration of his title to the disputed land and for its possession in the alternative against the Commissioner, Indore Municipality. 5. The claim was opposed by the Commissioner. The Civil Judge 1st class Indore framed issues and recorded evidence which the parties offered. He finally dismissed the suit holding that plaintiff's claim to the property was not established. The plaintiff filed an appeal which was allowed by the Additional-District Judge, Indore. The defendant, the Commissioner, Indore Municipality has therefore preferred this second appeal. 6. The Civil Judge 1st class Indore framed issues and recorded evidence which the parties offered. He finally dismissed the suit holding that plaintiff's claim to the property was not established. The plaintiff filed an appeal which was allowed by the Additional-District Judge, Indore. The defendant, the Commissioner, Indore Municipality has therefore preferred this second appeal. 6. It is not disputed by the defendant that the land in dispute is included in the property mentioned in P/1, the sale-certificate, but the appellant has contended that there is no guarantee of title given by the Court in regard to the property sold in auction. 7. The lower Appellate Court has held that the land in suit belonged to the plaintiff Gopalpuri and was in his possession since the date of its purchase by him. 8. Mr. Zanzariya contended that the plaintiff's title was based on a certificate of sale issued by the Courts but submitted that in the auction-sales there is never any guarantee of title given by the Court. He referred to the provision of Section 36(h), Indore Municipal Act, and urged that all the open land in the City which was not the private property of any other person belonged to the Government and was vested in the Municipal Commissioner for Municipal purposes. He therefore submitted that unless ii was satisfactorily established by the plaintiff that the land in dispute was his private property he could not succeed. As regards the plaintiff's possession of the property, the learned counsel submitted that the various acts of ownership on which the trial Court has based its finding were only acts of user and were not unequivocal in character so as to give rise to a presumption that plaintiff's possession over the disputed land was exclusive and as owner. According to the learned counsel this kind of possession was not sufficient to invoke the application of Section 110, Evidence Act. 9. There is no doubt a statutory presumption in favour of the defendant that all land which is not proved to be the private ownership of any person belongs to him and burden of proving that the disputed land is his private property is therefore 'prima facie' on the plaintiff. 9. There is no doubt a statutory presumption in favour of the defendant that all land which is not proved to be the private ownership of any person belongs to him and burden of proving that the disputed land is his private property is therefore 'prima facie' on the plaintiff. That the plaintiff has been in possession of the property purchased by him in auction is no longer in dispute and the defendant has not claimed the whole of it to be the municipal land. The dispute as I have already stated above is confined to a narrow strip of land measuring 5' east-west x 112'-6". That this strip of land is also in plaintiff's possession for several years is held to be proved by the lower appellate Court from the evidence on record. This fact is also admitted by the defendant in P/2. The question therefore to be considered is whether this possession of the plaintiff as supported by the sale-certificate is sufficient to establish his title to the suit property. 10. Section 110, Evidence Act, provides that when the question is whether any person is owner of any tiling of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. The application of this Section to lands claimed by the Government or the Municipality has been considered by this High Court in- 'Jagannath Shivnarayan v. Municipal Commissioner Indore', AIR 1951 Madh-B. 80 (A). Sanghi, J., discussed the case law on the subject and held that to apply the provisions of Section 110, Evidence Act, to plaintiff's possession that possession must be founded on a 'prima facie' right. According to the learned Judge mere acts of user would not lead to a presumption of title in case the possession was 'prima facie' not proved to be lawful. 11. The same view is taken by a Division Bench of the Bombay High Court in- 'Suraji Fulaji v. Secretary of State', AIR 1937 Bom 193 (B). It was a suit against Government for declaration that plaintiff was owner of certain plots in a village. 11. The same view is taken by a Division Bench of the Bombay High Court in- 'Suraji Fulaji v. Secretary of State', AIR 1937 Bom 193 (B). It was a suit against Government for declaration that plaintiff was 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 cattle and storing grass and that he has an 'otali' standing thereon for number of years. It was also proved by him that he has erected badges to the west and south of the plot. It was held that the Government did not succeed in rebutting the plaintiffs evidence as to its act of user the plaintiff not having proved such possession as would raise a presumption of title in his favour, the plaintiff could not succeed. Broomfield, J., approved the view taken by Ranade, J. in- 'Hanmantrao v. Secretary of State', 25 Bom 287 (C) and held that to come within the scope of S. 110, the possession of the plaintiff must be based on 'prima facie' right. This case was followed by another Division Bench of the same High Court in- 'Secretary of State v. Chimanlal Jamnadas', AIR 1942 Bom 161 (D). It was also a suit against the Government for declaration that certain property consisting of land was of the absolute ownership of the plaintiff. The plaintiff has proved some kind of possession and the question arose whether it was sufficient to give rise to a presumption under Section 110, Evidence Act. Divatia, J., discussed the case law on the subject and at page 171, observed as follows : "It is necessary, in my opinion, therefore for 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 Section 110 would apply only if the 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". 12. The plaintiff has examined himself and has examined some oral evidence to prove his possession over the entire property purchased by him in court auction in the year 1926. The plaintiff has stated on oath that the property as shown in P/1 was delivered to him by the Nazir of the Court and has been in his possession since then. He has also stated that there was a boundary wall and the land in suit is included with that boundary. On the defendant's side he has not been seriously cross-examined on any of the point. The lower appellate Court has found that the plaintiff has been in possession. The plaintiff's possession in this case is thus clearly referable to the sale certificate issued and is prima facie lawful in its origin. The defendant has claimed the strip of land to be municipal property on the basis of the khasra entry, but the khasra has been held not to be conclusive evidence of title in several cases and no claim for title can be founded upon it. Then what is exactly the khasra number of the land in dispute is not clear from the record. Hiralal Sharma who was examined as a witness for the defendant has stated that the disputed land consists of 4 khasra numbers viz., 15648, 15883, 15836 and 15842. This also appears to be the land in dispute from the reply given by the defendant to the plaintiff vide Ex. P/2. Mr. Hiralal Sharma who was examined as a witness for the defendant has stated that the disputed land consists of 4 khasra numbers viz., 15648, 15883, 15836 and 15842. This also appears to be the land in dispute from the reply given by the defendant to the plaintiff vide Ex. P/2. Mr. Zanzariya in course of arguments told me that the land in dispute was only confined to khasra No. 15648 whereas in P/7 which is a reply given by the defendant to the plaintiff's notice filing the suit the defendant has stated that plaintiff's claim to khasra numbers 15648, 15836 and 15842 is not proved. The khasra Abadi is prepared in 1910. Three khasra numbers are shown to be in Chandrabhaga. Out of these khasra No. 15842 is shown as a river and in the remark column it is added that it contains temple and a chabutra. No one has been examined by the defendant to explain what these entries are. 13. It has come in plaintiff's evidence that there was a boundary wall on the western side of the land in dispute but no attempt has been made to ascertain if the disputed portion was outside the boundary wall or inside. Mr. Zanzariya had to contend on the basis of the Inspection Note that the disputed portion was outside the boundary wall but recitals in the Inspection Notes cannot take the place of evidence recorded on oath and subject to cross-examination. 14. It is unfortunate that on defendant's side there was no attempt made to show what was the khasra numbers in dispute and what their area was. No one came to explain the khasra entries or to fix up the identity of the land on any regular plain. The khasra by itself is no evidence of title and the defendant cannot make much out of the entries made therein. In the course of arguments before me the defendant rested his claim entirely on his residuary title and the statutory presumption arising in his favour by reason of S. 36(h), Indore Municipal Act. 15. There is no direct evidence that the land in suit belonged to the defendant. The plaintiff on his side has proved his possession and produced his title deed. I have already found that the plaintiff's possession is referable to his title-deed and extends over at least a period of 25 years. 15. There is no direct evidence that the land in suit belonged to the defendant. The plaintiff on his side has proved his possession and produced his title deed. I have already found that the plaintiff's possession is referable to his title-deed and extends over at least a period of 25 years. The plaintiff's case is clearly proved and there is no need to interfere in second appeal. 16. The appeal therefore is dismissed with costs. Appeal dismissed.