Authored By : B.K. Mullick, Atkinson

B.K. Mullick, J.

1. This appeal arises out of a suit relating to a house. It is found as a fact by the learned. Additional District Judge in his appellate judgment that Lakhaman was the owner of the house, that after the latter's death it descended to his son Keshab, and that after Keshab's death, which took place about nineteen years before the suit, Lakhsman's widow Bidhumukhi was in possession as life-tenant.

2. The plaintiffs made a case in their plaint which is not altogether clear. In one portion they alleged that Lakshman and his brother Nader Chand were joint owners of the house; if that was so, Nader Chand would seem to have had a half share in it. In an other portion of their plaint they alleged that Nader Chand's three sons, Iswar. Maheswar and Mahindir, jointly acquired title to the whole house after the death of Keshab, and that each of these three brothers was entitled to a one-third share. On the footing that Nader Chand had only a half share, the three brothers would be each entitled to a one-sixth; whereas on the footing that the three brothers had jointly acquired by adverse possession or otherwise a full title to the house they would be entitled to one-third. However, in the prayer portion of the plaint the plaintiffs ask for a decree on the basis that their vendor Maheswar was entitled to a one-third share, and that is the claim which the learned Vakil appearing for them makes before us.

3. The defendants are purchasers from Giribala, the widow of Mahindir. They allege the adoption of Mahindir by Bidhumukhi, and claim that the whole house belonged to Mahindir.

4. The Munsif decreed the suit for a one-third share. On appeal the learned Additional District Judge found that the story of the adoption of Mahindir was false. At the same time he was unable upon the evidence before him to come to a conclusion as to the title of the plaintiffs' vendor, and he remanded the case to the Munsif with directions to determine whether Maheswar was entitled, as reversioner to the last full owner Keshab, to any, and if so, what share of the house.

5. The present second appeal is preferred by the plaintiffs on the ground that the remand order was illegal and contrary to the provisions of Order XLI, rule 23. It is quite clear that this contention must prevail. The learned Additional District Judge was not competent to remand the case for further evidence to the Munsif, and to require him to pass another decree. All that the learned Additional Judge was empowered to do was to frame an issue and to send down that issue to the Court below for the return of a finding; and it was his duty, after receiving that finding, to dispose of the appeal upon the evidence before him.

6. But the learned Vakil for the appellants goes further and urges two reasons why his clients should get a decree for a one third share in the property without being required to give further proof of title. The first reason is that there was twelve years' adverse possession by Maheswar, Iswar and Mahindir against Keshab and his heirs or reversioners. Now, upon this neither of the Courts below have come to any finding and there is no issue which would indicate that any such question was litigated before them. The learned Vakil next asks us to remand the case for such a finding, but I think it would be improper on our part to do so in second appeal and to give the case a new shape altogether.

7. Then the learned Vakil falls back upon his second ground, namely, possession short of twelve years before and after Bidhumukhi's death. Now this raises an interesting question of law, namely, whether a plaintiff who has omitted to sue under section 9 of the Specific Relief Act, when first dispossessed, can after the summary relief under that section is barred by limitation, rely in a regular suit for ejectment on section 110 of the Evidence Act; and as soon as he has proved that the defendant has dispossessed him, is the onus thrown upon the latter to prove his title In other words, does section 110 contemplate juridical or de facto possession In the High Courts of Bombay, Allahabad and Madras the weight of authority seems to be in favour of the view that juridical possession is sufficient to throw upon the defendant the onus of proving a better title, and the exhaustive judgment of Jenkins, C.J., in Hanmantrav v. Secretary of State 25 B. 287 : 2 Bom. L.R. 1111 seems to me to contain a very cogent and clear exposition of the law. Indeed, if I may say so with the greatest respect, the question was settled by their Lordships of the Privy Council in Sundar v. Parbati 12 A. 51 : 16 I.A. 186 : 5 Sar. P.C.J. 448 : 6 Ind. Dec. (N.S.) 782 so far back as 1889, where their Lordships cite with approval Asher v. Whitlock (1865) 1 Q.B. 1 : 35 L.J.Q.B. 17 : 11 Jur. (N.S.) 925 : 13 L.T. 254 : 14 W.R. 26 and observe that where possession has been attained without force or fraud, the person in possession is entitled to maintain it against all comers except the true owner. This principle has been more recently affirmed in Gobind Prasad v. Mohan Lal 24 A. 157 and in Mustapha Saheb v. Santha Pillai 23 M. 179 : 8 Ind. Dec. (N.S.) 524. In the Calcutta High Court the trend of opinion is on the whole otherwise, and the general view is, that if a plaintiff is out of possession at the time of the suit the onus of proving title is on him; but that if he is in possession the onus is shifted on to the defendant. Recently, however, a note of dissent has been struck in Shama Charan Roy v. Surja Kanta  6 Ind. Cas. 806 : 16 C.W.N. 163 where the Court doubted whether the case of Wise v. Ameerunnissa Khatoon  7 I.A. 73 : 6 C.L.R. 249 : 4 Sar. P.C.J. 127, on which the earlier Calcutta view purported to have been founded, really supported it, and if so, whether it had not been overruled by Sundar v. Parbati 12 A. 51 : 16 I.A. 186 : 5 Sar. P.C.J. 448 : 6 Ind. Dec. (N.S.) 782. The question came up again in 1910 in Manak Borai v. Bani Charan Mandal  10 Ind. Cas. 469 : 13 C.L.J. 649, but the Court did not decide it, and reserved for future consideration the effect of the judgment in Sundar v. Parbati 12 A. 51 : 16 I.A. 186 : 5 Sar. P.C.J. 448 : 6 Ind. Dec. (N.S.) 782.

8. Having regard, therefore, to the state of the authorities, I am satisfied that if the plaintiff can prove joint possession with Mahindir or his successors at the time of the alleged dispossession, he will be entitled to succeed, unless the defendant can prove a better title.

9. The position, therefore, is this, the order of remand is wrong and must be set aside; the case must go back to the learned Additional District Judge for a hearing upon the evidence before him. He will not be competent to remand the case to the lower Court either for additional evidence or for findings on any issue. The learned Additional District Judge will be restricted solely to the case made by the parties and disclosed by the evidence adduced before the Munsif. Upon that evidence he will find, firstly, whether the plaintiffs have established the title of their predecessor, and secondly, whether upon mere possession they are entitled to a decree for one-third or any other share against the defendants. Costs will abide the result.

10. We direct that the Court below do dispose of the case within two months of receipt of the record.

Atkinson, J.

11. I concur.