1. These three second appeals come before us from the decision of the learned Judicial Commissioner of Chota Nagpur.

2. With regard to Second Appeal No. 1212 Mr. Sushil Madhab Mullick, who appears on behalf of the appellant, admits that having regard to the finding of fact arrived at by the learned Judicial Commissioner, this appeal cannot be sustained. Accordingly Second Appeal No. 1212 of 1917 will stand dismissed with costs.

3. The two remaining appeals are Nos. 938 of 1917 and 422 of 1918.

4. The point arising for decision is common to both appeals; and consequently both these second appeals will be disposed of by one judgment.

5. Two villages by name Haisathu and Harchanda formed property which belonged to the members of a joint Hindu family; and the family was composed of three persons, Kirpal, Beni and Harihar.

6. In 1891 Harihar instituted a suit for partition and on the 27th February 1893 a preliminary decree for partition was passed.

7. On the 18th May 1893 the interest of the co sharers in both the villages was sold by auction in execution of a decree procured at the instance of three persons against all the co sharers, and what formerly constituted the joint family property was sold and purchased by one Jaipal at the execution sale.

8. It will be noticed that the sale in pursuance of the decree took place during the currency of the partition suit.

9. On the 13th September 1895 the final decree for partition was pronounced and the shares of the respective co-sharers were allotted to each.

10. At the execution sale, at which Jaipal was declared the purchaser, it was conceded that Jaipal bought as a benamidar on behalf of all the original co-sharers. It was at one time contended that Jaipal in fact became the purchaser on behalf of the widow of Kirpal; but the learned Judge has found as a fact that the purchase by Jaipal was really made on behalf of all the co-sharers. This issue was determined in Second Appeal No. 1212 of 1917, and with this matter we are not now concerned.

11. Between the 21st of April and the 22nd of May 1895 symbolical possession was given to all the co-sharers of the respective takhtas allotted to them in pursuance of the partition.

12. On the 22nd February 1898 Jaipal obtained his sale certificate in respect of the aforesaid purchase by him at the execution sale and symbolical possession was given to him of both villages referred to above on the 17th April 1892. On the 15th of January 1900 the shares of Beni and Harihar in Manza Haisathu were sold at an auction sale, and purchased by the plaintiffs' father, one Baiknntha Nath Rai, in pursuance of another mortgage decree. What was sold was five annas four pies of Mauza Haisathu; and on the 15th of May 1900 an additional five annas and four pies share of Haisathu was again sold in pursuance of a different decree, and 10 annas and 8 pies of Mauza Harchanda.

13. The sale to the plaintiffs' father was effected on the 15th January 1900 in respect of the first lot of property sold, and in respect of the second lot of property sold the same was purchased on the 5th May 1900 by the plaintiffs' father. The first sale was made absolute on the 1st February 1900, and the second sale was made absolute on the 21st July 1900, and symbolical possession was given to the plaintiffs' father as purchaser in respect of both denominations of property specified above on the 8th and 9th of November 1900 respectively.

14. The Record of Rights was published on the 23rd December 1900, and the defendant No. 2 was recorded as proprietor in respect of certain plots comprised within the said Mauzas, forming part of the property purchased as aforesaid by the plaintiffs' father, as representative of Kirpal's branch of what was originally the joint family, and at the same time the Record of Rights contained an entry that certain plots within the said Mauzas, being portions of the said properties purchased by Baiknntha Nath Rai, were also recorded in the name of the plaintiffs.

15. Kirpal's branch of the original joint family instituted a suit seeking to have the entry in the Record of Rights amended in so far as it recorded the plots in the name of the plaintiffs or of the plaintiffs' father. A counter-suit was instituted by the plaintiffs claiming like relief in so far as the plots that were recorded were recorded in the Dame of Kirpal and his branch of the family.

16. These are the facts out of which the present second appeals arise; and it may be stated that the point for consideration in both these second appeals, viz., Nos. 938 of 1917 and Second Appeal No. 422 of 1918, are exactly similar, and that one judgment will be common to both.

17. The point for legal determination is a short and narrow one and may be briefly stated:--viz., is the plaintiffs' Original Suit No. 368 of 1912, out of which Second Appeal No. 938 of 1917 has arisen, barred by limitation, and consequently are the plaintiffs not now entitled to recover possession of the property for which they sue. Defendant No. 2, who is the appellant, contends that the plaintiffs have failed to discharge the onus which the law casts upon a plaintiff in a suit suing for the recovery of possession of land, by proving possession and dispossession by himself or those through whom he claims within 12 years before action brought. The learned Judicial Commissioner addressed himself to a consideration of the evidence for the purpose of ascertaining if the plaintiffs had established possession of the lands in suit either by themselves or those through whom they claimed, within the 12 years before the institution of this Bait. From the judgment the facts relative to a consideration of this point appear to be as follows.

18. After the partition was effected a question arose between Kirpal's branch of the family and the branches represented by Beni and Harihar as to whether Kirpal's branch had by adverse possession acquired title to the respective shares of Beni and Harihar. The learned Judge considered the evidence adduced on both sides, and in his opinion the vital question for consideration and determination was the question as to who had possession during the period from 1895 to November 1900. Kirpal's branch of the family were claiming a title by adverse possession, whereas Beni and Harihar claimed that the possession which they acquired in pursuance of the Batwara decree had never ceased; and that their possession was intact and unimpaired.

19. The learned Judge confesses that the evidence on both sides with regard to possession, as adduced before him, was moat unsatisfactory and that he was quite unable to make up his mind with whom possession in fact lay; and accordingly to arrive at a definite and final conclusion, the learned Judge applied the legal presumption that possession follows title to the facts proved in evidence before him, and held that the possession of the property in this suit lay with Beni and Harihar between the period from 1896 up to November 1900.

20. The learned Judge summarises his conclusion of fact in the following phrases: "My opinion then about the 1896 to 1990 period is that the direct evidence is insufficient to prove with whom possession lay." "When this position is reached a long series of rulings show that it should be presumed that possession goes with title." "The title of Beni and Harihar is, in my opinion, established by the partition proceedings. These as I have held were continued as though Jaipal's purchase in 1893 had not taken place." "I thus find that Beni and Harihar were in actual possession from 1896 up to November 1900, when the Roys got symbolical possession."

21. Now if the learned Judge was right in point of law in applying the legal presumption that possession follows title, then the final conclusion of fact arrived at by the learned Judge cannot be impeached in second appeal.

22. Mr. Shushil Madhab Mullick appearing on behalf of the appellant contends that the learned Judge in the circumstances of this case, on the facts proved in evidence before him, was not warranted in applying in point of law the presumption that possession follows title. His contention before as has been that this presumption of law is only applicable in oases where the evidence is so strong and so consistent and so evenly balanced on both sides that the Court is unable to satisfy itself with which of the parties to the litigation before it possession lies; and that only in such cases is the Court entitled to apply the presumption of title in aid of possession. Mr. Mullick emphatically argues that the presumption cannot be applied in oases where no evidence of possession is given at all by either side; or where if the evidence that is given as to possession is so unsatisfactory and insufficient as to leave the Court unable to arrive at a clear conclusion as to with which party possession in fact lay.

23. We are of opinion that Mr. Mullick's contention is unfounded in point of law. There are many authorities of modern and recent date, which conclusively establish that even in cases where no evidence has been given at all as to possession that nevertheless the legal presumption may be resorted to support the presumption that possession follows title, and likewise there are also reported oases which decide that where the evidence offered has been so unsatisfactory and weak on both sides as to leave the tribunal of fact unable to determine the issue of fact as to which of the parties to the litigation are entitled to possession, that in such cases the presumption that possession follows title may be resorted to determine the issue as to possession in fact.

24. The main authority on which Mr. Sushil Madhab Mullick relies is a judgment of our learned brother Mr. Justice Mullick reported as Fakira Lal Sahu v. Munshi Ram Charan Lal 35 Ind. Cas. 554 : 1 P.L.J. 148. In that case on the fact before him, our learned brother did lay down that the legal presumption that possession follows title was applicable only in oases in which the evidence was so strong and consistent and evenly balanced on both sides that it was impossible to determine with whom possession lay. However, in a more modern ruling the same learned Judge re-considered the decision pronounced by him as a Single Judge in Second Appeal (unreported) No 728 of 1917. Mr. Justice Mullick was sitting, in the unreported case cited, as a member of a Division Bench of this Court with my learned colleague Mr. Justice Jwala Prasad. Mr. Justice Mullick in that case stated:--

We think it right, however, to state what, in our opinion, the law is with regard to the presumption which follows upon proof of title. The ordinary presumption of law is that possession goes with title. That presumption, of course, does not avail if there is clear evidence to the contrary. Where the evidence is equally strong on both sides, the presumption of law may, according to the circumstances of each case, be regarded and turn the scale. But the presumption cannot overcome the facts proved, and, therefore, it is always open to the Court to give what weight it likes to the presumption. When there is no evidence of possession on either side, the presumption should prevail. So also where the evidence in unsatisfactory on both sides, provided always that the evidence does not negative the presumption.

25. With the expression of the law so stated we entirely agree.

26. Likewise it will be found stated in Mr. Justice Woodroffe's book on the Law of Evidence, page 692, of the last edition as follows: "It is, therefore, only when there is no evidence of possession either way, or when the evidence of possession is strong on both sides and apparently equally balanced, that the presumption that possession goes with title should prevail."

27. The importance of that commentary, coming from so distinguished an authority as Mr. Justine Woodroffe, is that it recognises that even in cases where no evidence is given on either side as to the fact of possession that the presumption should prevail.

28. Mr. Justice Mookerjee in a case reported as Mirza Shamsher Bahadur v. Munshi Kunj Behari Lal 12 C.W.N. 273 : 3 M.L.T. 212 : 7 C.L.J. 414 states at page 280 as follows: "When the District Judge deals with this part of the case, he may, if the state of the evidence justifies it, apply the principle laid down by their Lordships of the Judicial Committee in Runjeet Ram Panday v. Goburdhun Ram, Panday 20 W.R. 25 (P.C.), namely, where the evidence of possession is equally unsatisfactory on both sides, the presumption may be made that possession was with the true owner."

29. The importance of this judicial pronouncement is that it applies to the third class of oases, namely, where the evidence on both sides is so unsatisfactory or insufficient as to be inadequate to enable the Court to make up its mind as to with whom possession lies, that then the principle laid down by their Lordships of the Privy Council in the well-known case reported as Runjeet Ram Panday v. Goburdhun Ram Panday 20 W.R. 25 (P.C.) should be applied. I also think the decision of their Lordships of the Privy Council reported as Rani Hemanta Kumari Debi v. Maharaja Jogadindra Nath Roy Bahadur 10 C.W.N. 620 : (P.C.) : 3 A.L.J. 363 : 8 Bom. L.R. 400 : 1 M.L.T. 135 : 16 M.L.J. 272 brings up to date what the law is as declared by their Lordships' Board, namely, that where the evidence as to possession is doubtful and conflicting, the initial fact of title comes to a party's aid with greater or less force according to the circumstances established in evidence.

30. Mr. Justice Mookerjee subscribes to this view in the case already cited reported as Mirza Shamsher Bahadur v. Munshi Kunj Behari Lal  12 C.W.N. 273 : 3 M.L.T. 212 : 7 C.L.J. 414. In that case, the learned Judge says at page 281: "It follows consequently that if a plaintiff establishes by evidence, direct or presumptive, his possession, actual or constructive, of the disputed land in Bharkalwar within 12 years of the suit, and if the defendants are called upon to prove their case of adverse possession for over 12 years, in respect of any portion of those lands, the evidence as to their possession must be carefully scrutinized."

31. In our opinion in point of law the learned Judge was, on the facts of this case, justified in applying to the facts adduced before him in evidence in this suit the presumption already stated that possession follows title.

32. The learned Judge's finding of fast is that from 1896 down to 8th or 9th November 1900 respectively the predecessors-in-title of the plaintiff, Beni and Harihar, were in possession of the respective lands in suit; and that consequently the present suits having been instituted on the 7th and 9th of October 1912, the plaintiff has shown that he was in possession within 12 years before action brought, and that the defendant No. 2's present possession must be attributed to a dispossession or a discontinuance of the plaintiff's prior possession within the period provided by the Limitation Act.

33. It remains to consider which Article of the Limitation Act applies to this case. It has been forcibly contended before us that the Articles which apply are either Article 137 or Article 138. We are of opinion that neither of these Articles apply; and the Article which does apply is Article 142.

34. Article 138 applies only to the case of a judgment debtor or those claiming through him who remain in possession after purchase made by an auction purchaser at an execution sale. In the present case defendant No. 2 bases his claim to title and possession as a trespasser relying upon adverse possession. Article 137 for obvious reasons has no application to the facts of this case, because as found by the learned Judge possession remained with the predecessors-in-title of the plaintiff up to the time that symbolical possession was given to the plaintiff.

35. Accordingly we are of opinion that the learned Judge was right in point of law in the conclusion at which he arrived, that the plaintiffs discharged the onus which the law imposed upon them in proving their possession and dispossession or discontinuance of possession within twelve years prior to the institution of these suits respectively.

36. We, therefore, decline in second appeal to interfere with the decision of the learned Judge, and dismiss these appeals with costs.