Dawson Miller, C.J.The facts of this case are fully set out in the Order of Reference and it is unnecessary to repeat them here. It has been contended, however, that the question for decision formulated in the Order of Reference does not correctly represent the decision of the learned Judge in second appeal, in so far as it states that one of the questions for decision is whether that judgment was right in holding that, when the evidence of possession within 12 years of the suit has been found to be equally valueless on both sides, the plaintiff has satisfied the burden of proof cast upon him of proving his possession within that period by proving merely a title and possession at some antecedent period. What in fact my learned brother in his judgment says was this: "The question involved in the present case is whether in the circumstances the learned Munsif was justified in giving the benefit of the presumption referred to above to the plaintiffs." The circumstances, which must be taken as determined and to which my learned brother had in the previous paragraph of his judgment referred, were those found by the District Judge on appeal, viz., that the evidence of possession on both sides was equally unworthy of credit. The case was then considered on that hypothesis, and indeed could be considered on no other, as those were the fasts found by the District Judge and were conclusive in any further appeal. Then after referring to the two cases of Bhuban Mandal v. Jugal Hazra and Bhikhad Bhunjan Narain Tewari v. Upenda Nath Roy 51 Ind. Cas. 801 : (1919) Pat. 298 : 4 P.L.J. the correctness of which decisions has also been referred to this Bench, the judgment proceeds: "it is true that in a suit in ejectment the plaintiff has to prove not only his title but also his possession within 12 years of the date of suit. When the plaintiff proves his title, the presumption, no doubt, arises in his favour as to his having been in possession of the property on the strength of his title." He then finds that the Munsif was right in holding that the plaintiff must have been in possession in 1901, the date of his kabala, which is more than 12 years before the commencement of the suit. The judgment then points out that the Courts below found that the defendants failed to prove their title as well as their possession and that so far as they were concerned, the matter was settled, as no presumption in favour of trespassers could be raised, and adds: "As to the possession of the plaintiffs the Trial Court was justisfied in raising the presumption in their favour, on the ground that they were the rightful owners of the land and upon the fact that they gave some evidence of possession." But I may point out that that evidence must be regarded as unworthy of credit, as the District Judge found. Finally the judgment concludes by saying that the raising of the presumption was a matter within the diseretion of the Trial Court and as the District Judge had not differed from the Munsif in his findings or come to a definite finding in favour, of the defendants possession, it was not open to the District Judge to overrule the decision and that his view of the law on the subject was wrong.

2. I have dealt at length with the judgment of my learned brother now under appeal, as it has been argued that I have in the Order of Reference misrepresented the effect of his judgment. I am unable to see that I have done so, but to make it quite clear I wish to point out that where I ventured with great respect to differ from his judgment was that whereas upon the facts found by the District Judge, which must be taken as conclusive, he considered that it was not open to the District Judge to reverse the decision arrived at by the Munsif, I take a contrary view, Assuming that there was no evidence worthy of credit on behalf of either party as to possession, which is what the District Judge found, and assuming, as it is assumed and I think properly assumed in the judgment now under appeal, that the plaintiff in a suit for ejectment must prove not only his antecedent title but also his possession within 12 years of the suit, then in the absence of any credible evidence as to possession, I consider that the Plaintiff must fail and that the presumption arising from title cannot be sailed in aid to give weight to evidence unworthy of credit any more than if no evidence at all had been given. In the Order of Reference I have given at length my reasons for arriving at this conclusion and have referred to the authorities which, in my opinion, support it. After further argument I see no reason to modify the view there expresssd and it is unnecessary to repeat what I then said.

3. It has been argued, however, that in all cases where the defendant sets up a title by adverse possession, whether the suit is one based upon dispossession or not, the onus lies upon the defendant to prove his adverse possession for 12 years before the suit. In my view this is stating the legal proposition too broadly. In support of the proposition the case of Radha Gobind Roy Saheb v. Inglis 7 C.L.R. 364: 3 Suth. P.C.J. 809, decided in 1880, is relied on. That was a decision of their Lordships of the Judicial Committee of the Privy Council and is binding upon this Court. The case was one in which the plaintiff sought a declaration of his right to, and to be restored to possession of, certain land which had originally been covered with water, forming a large Bheel, but which in resent years had to some extent become dry and cultivable and he sought to set aside certain orders of Magistrates whereby the question of possession had been decided against him. The plaintiff proved his title to the Mauza of which the land in suit was found to be a p Article It was also found that the land in suit had all been re-formed from the bed of the lake and became dry and cultivable within recent years, certainly within less than 12 years before the institution of the suit. The defendant disputed that the land in question ever formed a portion of the Mouza and also set up a plea of adverse possession for more than 12 years. Their Lordships, on the facts stated, held that on the question of possession the issue was undoubtedly on the defendant and that he must prove that the plaintiff had lost his title by reason of the defendants adverse possession, It can hardly be assumed that this judgment was intended to modify the earlier decision of their Lordships in the case of Maharajah Koowur Baboo Nitrasur Singh v. Baboo Nund Loll Singh 8 M.I.A. 199 : 1 Suth. P.C.J. 420 : 1 Sar. P.C.J. 744 : 1 W.R.P.C. 51 : 19 E.R. 506, which decided that in a suit for ejectment based upon possession and dispossession within 12 years the onus lay upon the plaintiff to prove that the dispossession took place within 12 years and that ho did not discharge that burden by merely proving title coupled with enjoyment at some earlier period. The correct view of Radha Gobind Roys case 7 C.L.R. 364: 3 Suth. P.C.J. 809 appears to me to be that the case was not one based upon a dispossession by the defendant of the land as such and there was no allegation that the plaintiff had ever been in actual possession of the land after it formed by the drying of the water. In other words, the case was not one falling under Article 142 of the Limitation Act but under Article 144, It is also to be observed that in that case, as was pointed out by Sir Arthur Wilson in delivering the judgment of the majority of the Full Bench in Mahomed Ali Khan v. Khaji Abdul Gunny 9 C. 741 : 12 C.L.J. 257 : 4 Ind. Dec. 1145, their Lordships observed: "The Subordinate Judge does not appear to have had his attention directed to the very important question when the new land formed." The defendants possession could only have begun at that period upon the facts found, and their Lordships agreed with the finding of the High Court that the lands only formed within the statutory period of 12 years. If that case must be taken as an authority for the broad proposition that in actions for ejectment based upon dispossession of the plaintiff, the burden of proof is east upon the defendant of shewing that he is entitled to retain possession once the plaintiff has proved title at some period more than 12 years ago, it seems hardly possible to suppose that eight years later in the case of Mohima Chunder v. Mohesh Chunder 16 C. 473 : 16 I.A. 23 : 5 Sar. P.C.J. 321 : 8 Ind. Dec. 312 their Lordships would again have taken the view expressed in Maharajah Koowurs case 8 M.I.A. 199 : 1 Suth. P.C.J. 420 : 1 Sar. P.C.J. 744 : 1 W.R.P.C. 51 : 19 E.R. 506 and have said that "in all actions for ejectment where the defendants are admittedly in possession and a fortiori where, as in this particular case, they had been in possession for a great number of years and under a claim of title, it lieu upon the plaintiff to prove his own title. The plaintiff must recover by the strength of his own title, and it is the opinion of their Lordships that in this case the onus is thrown upon the plaintiffs to prove their possession prior to the time when they were admittedly dispossessed and at some time within 12 years before the commencement of the suit, namely, for the two or three years prior to the year 1875 or 1874, and that it does not lie upon the defendants to shew that in fast the plaintiffs were so dispossessed."

4. Other cases were cited by the learned Vakil for the appellant in support of his contention, but in none of them, so far as I have been able to discover, was the cause of action based upon a dispossession. It follows that in my opinion the appeal should be allowed and the cases relied upon were wrongly decided, I think the appellants are entitled to their costs in all Courts.

Jwala Prasad, J.

5. The Reference to the Full Bench is in the following terms:

The question for decision is whether the judgment appealed from was right, in so far as it held that where the evidence of possession within 12 years of the suit has been found to be equally valueless on both sides, the plaintiff has satisfied the burden of proof cast upon him of proving his possession within that period by proving merely a title and possession at some antecedent period and whether the cases of Bhuban Mandal v. Jugal Hazra (Second Appeal No. 728 of 1917) and Bhikhad Bhunjan Narain Tewari v. Upendra Nath Roy 51 Ind. Cas. 801 : (1919) Pat 298 : 4 P.L.J. were rightly decided.

6. The judgment appealed from, referred to in the aforesaid passage and which has given rise to this Reference, was delivered by me sitting singly on the 18th November 1919. By the aforesaid judgment I set aside the judgment of the District Judge, dated the 18th February 1918, and restored that of the Munsif, dated the 25th August 1917, decreeing the plaintiffs suit for recovery of possession of land described in Schedule Kha, which is a portion of the land described in Schedule Ka of the plaint. The land in Schedule Ka is known as the Pathar Chapar Bahal land. It originally belonged to the plaintiffs and their uncle Nagar Singh and after the death of the latter it belongs entirely to the plaintiffs, they being his heirs.

7. The plaintiffs sold the entire Pathar Chapar Bahal land to one Gobardhan Singh by a registered kabala, dated the 26th Phagun 1297 B.C. (1890). After some time in 1306 the plaintiffs took settlement of the land from Gobardhan Singh, and in 1303 they purchased the same from him by a registered kabala, dated the 20th Phagun 1308 (1901). The plaintiffs case was that they were in possession of the land till Asadh 1323 (1916), when the defendants Nos. 1 to 3 dispossessed them from a portion of their Pathar Chapar Bahal land. The plaintiffs, therefore, brought the suit out of which this appeal has arisen for recovery of khas possession of that portion as described in Schedule kha of the plaint.

8. Defendant No. 4 is the Raja of Jharia, who is the owner of the adjoining land to the north of the plaintiffs Pathar Ghapar Bahal land, known as Pakadia Bahal main land. Defendant No. 5 is the lessee of the said Pakadia Bahal main land from the Raja of Jharia.

9. Defendants Nos. 1 to 3 are Bhagidars under defendant No. 5.

10. The defendants case was that the disputed land was a portion of the Pakadia Bahal main land, and not a portion of the plaintiffs land sailed Pathar Chapar Bahal land. The defendants claimed the land as their own and also alleged that they were in adverse possession of the same for over 12 years.

11. Both the Courts below concurrently held that the land in question was a portion of the plaintiffs Pathar Chapar Bahal land, and not that of the defendants Pakadia Bahal main land.

12. The question of title is, therefore, concluded by the concurrent findings of the Courts below. It is, however, worthy of note that the Munsif in arriving at this conclusion found on inspection that the Pakadia Bahal main lands, which are admittedly north of the plaintiffs Pathar Chapar Bahal lands, were "lying in a Danga condition, were in poor and wretched condition and not properly tared for." The Munsif says: "the khets now require labour and expenditure to be restored to their original condition. It appears to me that it was to make up the loss that defendant No. 5 Banwari Sarkar, lessee of main lands, has set up his Bhagidar to get hold of the plaintiffs lands." This clearly means that the plaintiffs, and not the defendants Nos. 4 and 5, could possibly have cultivated the disputed lands which belonged to the plaintiffs, when they themselves could not cultivate their own adjoining lands, and they, therefore, settled them with defendants Nos. 1 and 3, who on the strength of their settlement dispossessed the plaintiffs. The plaintiffs lands to the south are cultivated lands including the disputed portion, and the Munsif was right in holding that this made it more probable for the plaintiffs to be in the cultivating possession of the disputed lands than the defendants. The rough sketch noted below will fully illustrate this and throw great light upon the conflicting evidence of possession adduced by the parties.

Defendants Pakadi Bahal main land Parti

Disputed land

Plaintiffs Pathar Chhapar Bahal land. Cultivated

13. Now, both parties entered into evidence to prove their respective possession over the land in question. The Munsif held that the oral evidence of possession on both sides was unsatisfactory. In view of the circumstance indicated above, which was brought to light during the local inspection held by the Munsif in order to appreciate the evidence, he gave the plaintiffs "the benefit of presumption that possession follows title" and held that the plaintiffs suit was not barred by limitation. He accordingly decreed the suit.

14. The learned Judge on appeal dismissed the suit, on the ground that the Munsif was wrong in giving the plaintiffs the benefit of the presumption when he held that the oral evidence of possession on both sides was unsatisfastory." He observed that such a presumption arises only when the evidence of possession on both sides is equally balanced and not "when it is, as here, equally unworthy of credit except in respect of lands of special character such as waste and jungle lands."

15. Upon the interpretation put on the judgments of the two Courts, I came to the conclusion that the finding of the Munsif as to the possession of both sides being unsatisfactory remained undisturbed and was not legally set aside, although the learned Judge used incidentally and indiscriminately the words "useless," "valueless" and "unworthy of credit," and accordingly I held that the Munsif was right in raising the presumption in favour of the rightful owner and in holding as a fast that the presumption thus raised gave weight to the positive evidence offered by the plaintiffs, to entitle the Court to arrive at a definite finding that the plaintiffs were in possession of the property as alleged by them and were dispossessed in Asadh 1323. I expressed my views in the following words:--"As to possession of the plaintiffs, the Trial Court was justified in raising the presumption in their favour, on the ground that they were the rightful owners of the land and upon the fact that they gave some evidence of possession. The raising of the presumption that possession goes with the title is a matter of discration with the Court. It was with the Trial Court, which had before it the evidence, to say whether in the circumstances of that case and in view of the evidence on the record, it was in a position to discriminate and hold, giving the weight of the presumption in favour of the plaintiffs, that they had proved their possession within 12 years of suit. This having been done by the Trial Court in this case, I do not think that it was open to the learned District Judge to upset that judgment, unless he had differed from the Munsif on his finding of fact or had come to a definite finding in favour of the defendants possession, which he has not done in this case."

16. Now, the presumption arising from ownership is one of fact and as such can be proved as a fact. The evidence without the presumption might seem to be unsatisfactory, useless or valueless, but having the weight of the presumption it might lead to a certainty in the mind of the Court as to the possession being with the rightful owner. I stated also that "in a suit in ejectment the plaintiff has to prove not only the title but also his possession within 12 years of the suit." When the plaintiff proved his title, the presumption no doubt arose in his favour as to his being in possession of the property on the strength of his title.

17. The plaintiffs admittedly had Pathar Chapar Bahal land, and the defendants had admittedly no concern with that land. The plaintiffs sold the land to Gobardhan Singh in 1890 and subsequently purchased it in the year 1308 (1901). The Munsif held that they were in possession of the land by virtue of their purchase in 1901. They offered some evidence of possession to prove their subsisting title. It was held that the land in question was not a part of their Pakadia Bahal main land. It was not a case of the plaintiffs giving no evidence of possession. The plaintiffs did adduce evidence, which was held to be unsatisfactory. It was open to the Court to raise the presumption in favour of the plaintiffs, in order to weigh their evidence and to judge of the probabilities. There were other fasts and circumstances. The undoubted fast that the defendants lands were all parti and they were not in a position to cultivate their lands, must have weighed considerably in the mind of the Munsif that the defendants were not in possession of the disputed lands also. The contiguous south of their lands belonging to the plaintiffs was cultivated and, therefore, it was more likely that the plaintiffs must have cultivated the disputed lands, and not the defendants who had allowed their own lands to become danga and parti for want of funds. The settlement made by defendant No. 5 in favour of defendants Nos. 1 to 3 in 1303 was an obvious attempt on the part of the defendants, as alleged by the plaintiffs and held by the Munsif, to dispossess the plaintiffs. I, therefore, emphasised in my judgment that "it was for the Trial Court, which had before it the evidence, to see whether in the circumstances of the case (referred to above) and in view of the evidence on the record, it was in a position to discriminate and hold, giving the weight of the presumption in favour of the plaintiffs, that they had proved their possession within 12 years of suit. This having been done by the Trial Court in this case, I do not think that it was open to the learned District Judge to upset that judgment, unless he had differed from the Munsif on his finding of fact or had some to a definite finding in favour of the defendants possession." Upon the law stated in my judgment, I do not think that the reference in question does arise, for nowhere in my judgment did I say, in terms of the reference, that where the evidence of possession within 12 years of the suit has been found to be equally valueless or unreliable on both sides, the plaintiff has satisfied the burden of proof cast upon him of proving his possession within that period by proving merely a title and possession at some antecedent period. No doubt I have affirmed the view taken in the cases of Bhuban Mandal v. Jugal Hazra (Second Appeal No. 728 of 1917) and Bhikhad Bhunjan Narain Tewari v. Upendra Nath Roy 51 Ind. Cas. 801 : (1919) Pat, 298 : 4 P.L.J., decided by Mullick, J., and myself, but the reason for upholding the judgment of the Munsif as against that of the learned Judge was that the finding of fact arrived at by the Munsif was supported by the circumstances and evidence upon the record in favour of the plaintiffs being in possession of the property within 12 years and having been forcibly dispossessed, as alleged by the plaintiffs, in 1323 (1916), just before the suit was instituted.

18. I might have been wrong in interpreting the finding of the learned District Judge and in holding that he did not dispose of the finding of the Munsif based upon the aforesaid facts and circumstances. It was quite open in Letters Patent Appeal from my judgment to set aside my interpretation of the District Judges decision and to restore his judgment, or to remand the case for a fresh and clear finding. But I doubt whether under Chapter V, Rule 2, the question of law enunciated in the Order of Reference did really arise upon my judgment.

19. Now as the question has been laid before us for consideration and as it is a very important question, I venture to give my own views upon it. In doing so I feel great diffidence, inasmuch as I have to differ from the view of my learned colleagues in the Full Bench for whose legal acumen and experience I have the highest regard and reverence. I endorse the view of the law taken by Mullick, J. While he had taken a contrary view in the Calcutta High Court in the case of Lala Singh v. Latif Hossein 28 Ind. Cas. 477 : 21 C.L.J. 480, he subsequently changed his view on a fuller consideration and delivered the judgments in the cases of Bhuban Mandal v. Jugal Hazra and Bhikhad Bhunjan Narain Tewari v. Upendra Nath Roy 51 Ind. Cas. 801 : (1919) Pat, 298 : 4 P.L.J. I do not know what his opinion would have been after hearing the arguments on both sides and after having been apprised of the views of ray learned colleagues of the Full Bench. I miss the opportunity of having his valuable opinion this time, as he is not a member of this Bench. I had, therefore, to depend upon my own investigation into this contentious matter.

20. Originally there was no limit of time prescribed within which an action should be brought to enforce ones right. No doubt this was the law with respect to all kinds of properties--moveable and immovable--so that a title to Immovable property, once established, could be enforced after any length of time and a person in possession without any title was bound to yield to the claim of the person who had title in him. Latterly, the right of action was limited in duration with a view to obviate the difficulty of proving the existence of a right after a lapse of long time. Jurists of different ages and different countries, therefore, began to prescribe the period within which an action should be brought. This naturally varied with the nature of the right and with the notions obtaining in different countries and amongst different Jurists. This is one of the reasons why the Law of Limitation has been always changing. Title to Immovable property was so much respected that it required in the Mitakshara Law a possession for upwards of 100 years, hereditary and uninterrupted and within the knowledge of the righful owner, to confer a right upon the adverse party. The right in the possessory holder was in such a case presumed and his possession was deemed to be in conformity with the title, though not capable of proof by reason of the lapse of time (Mitakshara, Chapter III, Section 5). In the case of Sayud Ghoolam Ruza v. Aja Bhai Borrodailes Reports 307 the Hindu Law on the point was summarised in the following words:--"If the owner of real property, whether lard or of other allied nature, were to hold it for three generations under any deed without claiming it, such property becomes lost to him and ownership accrues to the person in possession." The three generations ware made definite by fixing a period of 100 years in the Mitakshara. According to the original and correct doctrine of the Hindu Law enjoyment or possession, howsoever long and ancient, can never be a cause of ownership. It simply raises a presumption of some title, though unproved on account of lapse of time; but if the want of the original title can be fully established, the possessory holder may at any time be divested of the property, whether it be land or any other kind of property: vide 3 Colebrookes Hindu Law, page 443, referred to in Busswell on Limitation. This was also recognised in the preamble to Bengal Regulation II of 1905.

21. It is thus clear that the ancient law of India respected title vehemently and rigidly. It was only when the owner with full knowledge allowed a stranger to hold possession openly and adversely to him for a considerable length of time--much more than is now prescribed by the Limitation Act, that his remedy to recover the property was barred, on the ground of there being a presumption in favour of the possessory holder having derived some title from the rightful owner; but the moment the possessory holder was shown to have bad title, he had no sympathy of the law. To put it still mere clearly, long possession was taken as a cure of the defect of title, but a proved unjust title was never recognized. No presumption was availble to him who was shown to have no title. Thus the person proving title to the property was entitled to succeed, unless and until the possessory holder was able to prove his possession for a long time with the knowledge and in defiance of the rightful owner and, further, that the title under which he claimed, was not shown to be unjust.

22. When the administration of civil justice was first entrusted to the East India Company and the Courts of Dewani Adalat were established, it was declared in 1772 that both according to the Muhammadan and the Hindu Law all claims which had lain dormant for 12 years were invalid. By Regulation 111 of 1793, Section 14, the Zila and City Courts in Bengal, Behar and Orissa were prohibited from entertaining the merits of any suit whatever if the cause of action accrued previous to the 12th of August 1765 or 12 years before the commencement of the suit, unless it was proved that the plaintiff was precluded from obtaining redress either from minority or other good and sufficient cause, etc., and by Regulation VII of 1795, Section 8, this provision was extended to the Province of Benares. Regulation II of 1885, Section 3, restricted the limitation of 12 years in cases of Immovable property to possession under a just and honest title and allowed a period of 60 years to claims of right to such property, if the claimant could show by sufficient proof that the person in possession acquired the same by violence, fraud or any other unjust and dishonest means or that the property claimed had been so acquired by another person through whom the actual occupant derived its title and was not subsequently held for 12 years under a fair title believed to convey a right of possession and property. The Law of Limitation in the Madras and the Bombay Presidencies was regulated by different Regulations, and the English Law of Limitation was applied to the Sadar Courts established by the Royal Charter in these Presidencies. For the first time, therefore, an uniform Law of Limitation was provided for all the Courts in British India by Act XIV of 1859. u/s 12 of the Act, a period of 12 years was prescribed for the institution of suits for the recovery of Immovable property or any interest in Immovable property. The period of 12 years was to be computed from the time the cause of action arose. This Act was substituted by Act IX of 1871. For the first time by this Act, suits for possession of Immovable property were divided into two parts, namely, Articles 143 and 145 of Schedule II, which were in the following terms:

143--For possession of Immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession, the period of limitation will be 12 years from the date of the dispossession or discontinuance.

145--For possession of Immovable property or any interest therein not hereby otherwise specially provided for, the period of limitation will be 12 years from when the possession of the defend ant, or of some person through whom he claims, became adverse to the plaintiff.

23. Act XV of 1877 and Act IX of 1908 (the present Limitation Act) made no change in the law, but only altered the numbers of the Articles to 142 and 144 respectively. The present suit is, therefore, governed by the present law. But the provisions with respect to limitation for suits for possession of Immovable property under the previous Acts and Regulations were quoted at the Bar with a view to understand and appreciate the various authorities upon the subject.

24. Both the aforesaid Articles contemplate a suit for possession. In other words, in suits coming under both these Articles the prayer of the plaintiff must necessarily be for recovery of possession, the defendant being in possession of the property and the plaintiff seeking to eject him. Under both these Articles the title must be with the plaintiff, and this he has to prove before his suit can be entertained.

25. Under Article 142, he must have been in possession of the property in accordance with his title and while in possession he is dispossessed or has discontinued the possession. The suit then must be brought within 12 years from the date of dispossession or discontinuance of possession. Under Article 144, the plaintiff need not have been in possession at all from the date that he acquired title. For instance, when he purchases a certain property at an auction sale, from the date of the sale the title to the property vests in him and be has a right to recover possession of the same on the basis of his title, though he had never been in possession of the property and hence was never dispossessed. He should then bring his action within 12 years from time when the possession of the defendant became adverse to him, that is to say, when the defendant is in possession openly and to the knowledge of the plaintiff.

26. In both the class of cases the plaintiff has to prove subsisting title, that is, a title which he has not lost, either by his own act or neglect or by the operation of law. The onus in both kinds of suits to establish his subsisting title is upon the plaintiff. When this is established, he is entitled to enforce his title by a decree for recovery of possession by ousting the defendant. In both the kinds of suits, the defendant can resist the claim, after the plaintiff has established his title and subsisting title, by showing that he has been in possession of the property for a period of 12 years adversely to the defendant and thus has acquired a title in himself by the law of prescription. It does not matter to him whether his possession of the property was unjust or was that of a wrong-doer. But in order to avail himself of this acquisition of title by adverse possession, the defendant has to establish open and continuous and co-extensive possession. In other words, he must show that he was in possession of the property for a continuous period of 12 years without any break, that he was in possession of all the lands in question, for be being a trespasser can have no presumption in his favour of being in possession when the land is vacant or is in nobodys possession or is abandoned: Vide Trustees, Executors and Agency Co. and Templeton v. Short (1888) 13 A.C. 793 : 68 L.J.P.C. 4 : 59 L.T. 677 : 37 W.R. 433 : 53 J.P. 138. Such a presumption arises only in favour of the rightful owner. The acquisition of title by adverse possession in favour of a trespasser arises by statutory provision in Section 28 of the Limitation Act, and not on any principle of bare justice and equity. In this respect the present Law of Limitation has engrafted an important change on the ancient law of India, by enabling a trespasser to acquire title by mere possession for 12 years as against the rightful owner, on account of the neglect of the latter to bring a suit within the said period from the date of the acquisition of his title under Article 144 or from the date of his dispossession or discontinuance of possession under Article 142. The presumption from bare possession in favour of a title undisclosed or unproved only arises when the title in anybody else is not proved and the possessory holder is, therefore, presumed to have derived his possession from some one having title, though not distinctly proved in the case. The presumption that possession is with the rightful owner always arises in his favour when his title is proved. Possession follows title, and hence the rightful owner will be deemed to be in possession of the property whether he actually does exercise the right of possession or not, and whether the land is vacant or fallow or is incapable of possession by reason of its having been covered by jungle or being under water or on account of want of inclination or ability to exercise acts of possession for some time. Consequently it is a settled principle that there will not be deemed to be any break in the possession of the rightful owner, unless and until it is shown that somebody else has actually entered into possession of the property. The man coming into such a possession is in the best position to prove as to when he actually same into possession and the nature thereof, namely, that he was in possession openly and definitely and with the knowledge of the rightful ower. Therefore, to my mind in cases coming under either of the Articles 142 and 144, the onus of preying possession must necessarily be upon the person who claims to be in possession without any title for the statutory period of 12 years. When the rightful owner proves his title and also proves to have got possession on the basis of title at some anterior time (a case coming under Article 142), he must be presumed to have continued to be in possession and his mere ceasing to exercise acts of possession will not cause any dispossession or discontinuance of possession. Similarly, where the plaintiff has acquired title but has never exercised acts of possession, he will be deemed to be in possession of the property in accordance with his title (a case coming under Article 144). In both these eases, the defendant can only defeat the plaintiffs claim to recover possession by showing that he was in adverse possession for over 12 years. The present law has mitigated the rigidity of the former law, as will be shown hereafter, which threw greater onus upon the plaintiff to prove not only his title but also his possession within 12 years from the time that "the cause of action arose to him." The distinction between the former and the present law has not always been kept in view, and this has caused so much divergence of judicial opinion.

27. With these remarks I will now examine the authorities in the case. I have been through all the cases cited on behalf of the parties and I must say, what has so often been said, that each case was decided upon its own facts. The presumption of possession in favour of the plaintiffs was, in the circumstances, of the particular case, sometimes allowed and sometimes disallowed.

28. The first case referred to is of the year 1860: Maharajah Koowur Babu Nitrasur Singh v. Baboo Nand Lall Singh 8 M.I.A. 199 : 1 Suth. P.C.J. 420 : 1 Sar. P.C.J. 744 : 1 W.R.P.C. 51 : 19 E.R. 506. That case was instituted in the year 1845 and the question of limitation was decided u/s 16, Regulation III of 1793, which was then in force and, as observed above, under which the cause of action for a suit for possession must have arisen within 12 years before the institution of the suit. The plaintiff admittedly was not in such a possession for 11 years, and there were previous litigations as to possession between the parties in which the boundaries between the two disputed Mouzas were settled in 1816 by decrees of Courts and there was also subsequent litigation upto 1834--35. The important words of their Lordships are at page 220, where it is said that: "The appellant is seeking to disturb the possession, admitted to have existed for about eleven years, of defendants, who insist on a possession of much longer duration as a statutory bar to the suit. It clearly lies on him to remove that bar by satisfactory proof that the cause of action accrued to him on a dispossession within 12 years next before the commencement of the suit." In such circumstances it was held that the issue of possession was the first to be considered (vide also the head-note) and that "no proof of anterior title, such as would be involved in the decision of the boundary in question in his favour, can relieve him from this burden or shift upon his adversaries by compelling them to prove the time and the manner of dispossession." At page 223, their Lordships observed that "the balance of probabilities is decidedly against him (the plaintiff)." On a consideration of the probabilities and upon evidence, their Lordships affirmed the decision of the Sadar Dewani Adalat that the plaintiff was not in possession within 12 years and that the defendants were in possession. In the present case also upon the probabilities of the contiguous boundary lands of the defendants being danga or parti on account of their poverty and upon the evidence in the case, the Munsif accepted the evidence of the plaintiffs that they were in possession. This ruling, therefore, does not help the defendants.

29. The next case is of the year 1869: Rajah Sahib Perhlad Sein v. Maharajah Raiender Kishore Sing 12 M.I.A. 292 : 2 Suth. P.C.J. 225 : 2 Sar. P.C.J. 430 : 20 E.R. 349. The other cases tried analogously in the Privy Council were disposed of in the preceding pages and we have nothing to do with them. The case with which we are concerned is reported at page 334. In that case the plaintiff brought a suit for recovery of certain property, said to be within the boundary of his Zemindary. "The cause of action" was said to have arisen on the 20th of March 1851 from his dispossession. The suit was brought 10 years after the 31st of December 1831. There was also a Thakbust Survey decision of 11th February 1848. The defendant contended that the suit was barred by three years limitation from 1848, the date of the Thakbust decision, and 12 years limitation, inasmuch as the defendant was out of possession for more than 12 years. The principal Sadar Ameen dismissed the suit, holding that the suit was barred by the Special and the General Law of Limitation. The High Court doubted as to the former, but confirmed the decision on the General Law of Limitation. Their Lordships of the Privy Council thought the Special Law of Limitation also applied, but rested their decision upon the General Law of Limitation, It was held that the Magistrates order of March 1851, which was relied upon by the plaintiff as having caused his dispossession, had not that effect and that it proved that the plaintiff was out of possession since the date of the Thakbust decision of the 11th February 1848, that is, more than 12 years before the institution of the suit on the 31st December. In the circumstances of that case no doubt the plaintiff had to establish clearly his dispossession within 12 years, and he having failed to do so, the suit was dismissed. The case was decided when Act VIII of 1859 was in force. u/s 12 of that Act, the suit was to be brought within 12 years "from the time the cause of action arose," as in the Regulation of 1793.

30. The next case is of the year 1870: Beer Chunder Jobraj v. Deputy Collector of Bhullooah 13 W.R. 23 (P.C.). Here also the Government defendant was admittedly in possession since 1845. There was also proof of Government being in possession in 1811 and 1824. The circumstances of that case are similar to those of the preceding cases and the decision was under Act VIII of 1859.

31. In the year 1873, in the case of Runjeet Ram Pandey v. Goburdhun Ram Pandey 20 W.R. 25 , after discussing the evidence on both sides their Lordships observed as follows: "In the midst, therefore, of this conflicting evidence, their Lordships think it right to consider whether there is any presumption to be derived from the other parts of the case in favour of the one side or the other. Now the ordinary presumption would be that possession went with the title. That presumption cannot, of course, be of any avail in the presence of clear evidence to the contrary; but where there is strong evidence of possession, as there is here, on the part of the respondents, opposed by evidence, apparently strong also, on the part of the appellant--their Lordships think that, in estimating the weight due to the evidence on both sides, the presumption may, under the peculiar circumstances of this case, be regarded; and that, with the aid of it, there is a stronger probability that the respondents case is true than that of the appellant." Although the decision is dated the 2nd April 1873, but as observed by Lord Macnaghten in the case of Rajkumar Roy v. Gobind Chunder Roy 19 C. 660 : 19 I.A. 140 : 6 Sar. P.C.J. 140 : 9 Ind. Dec. 883, the case "falls under the Limitation Act passed in 1859," when the plaintiff as pointed out in Koran Singh v. Bakar Ali Khan 6 A.I. : 9 I.A. 99 : 4 Sar. P.C. 382 : 2 Ind. Dec. 1044 was subject to a burden of proof heavier than that established by the Limitation Acts of 1871 and 1877. In that case no doubt the evidence was equally strong on both sides and the ordinary presumption of possession following title was applied in support of the probability of the evidence of possession being in favour of the rightful owner. It also laid down that in case of conflicting evidence it is right to consider whether any presumption can be derived from other parts of the case in favour of the one side or the other. In the present case the probability of the piece of land being cultivated by the plaintiff was much more in his favour than that of the defendants, as held by the Munsif, inasmuch as the defendants were unable to cultivate their own lands lying to the north contiguous of the plaintiffs land. The oral evidence was, no doubt, criticised and held to be valueless on both sides by the learned Judge, but the probability of the plaintiffs possession was proved by the circumstance stated above and clearly set forth in the Munsifs judgment, The principle of this authority will, therefore, apply to the present case.

32. In the year 1888, in the case of Mohima Chunder v. Mohesh Chunder 16 C. 473 : 16 I.A. 23 : 5 Sar. P.C.J. 321 : 8 Ind. Dec. 312, the finding of the High Court was that the plaintiffs failed to prove that they were in possession of the land in suit and dismissed the suit. In coming to this conclusion the High Court remarked that the plaintiffs were declared to be in possession of an insignificant portion of the land by the Magistrate u/s 530 of the then Code of Criminal Procedure within 12 years of the suit, but there was no evidence to show that where those 10 or 15 cakhis of land were situate and, therefore, the entire suit was barred by limitation. The argument was that upon the finding that the appellants had possession of a part of the disputed land, the presumption should have been that they continued to be in possession of the entire land and that the suit should not have been dismissed. Their Lordships of the Judicial Committee held that the High Court was wrong in holding that according to the Criminal Courts judgment the plaintiffs were in possession of any part of the land. Thus the foundation of the plaintiffs contention failed. In the circumstances of that case their Lordships held that in a suit in ejectment where the defendants "had been in possession admittedly for a great number of years and under a claim of title, it lies upon the plaintiff to prove his own title. The plaintiff must recover by the strength of his own title.... In this case the onus is thrown upon the plaintiffs to prove their possession prior to the time when they were admittedly dispossessed and at some time within 12 years before the commencement of the suit, namely, for the two or three years prior to the year 1875, or 1874; and that it does not lie upon the defendants to show that in fact the plaintiffs were so dispossessed."

33. The principle that when once the rightful owner proves his possession, the presumption of continuity of possession arises in his favour, was applied in the Full Bench case of Mahomed Ali Khan v. Khaja Abdul Gunny 9 C. 741 : 12 C.L.J. 257 : 4 Ind. Dec. 1145. That presumption without any doubt arises with respect to uncultivated lands or jungle which do not admit of usual modes of possession, but there is no reason why the presumption cannot be applied to the case of cultivated lands where the plaintiff proves not only title but also his possession prior to 12 years before the suit and there is no proof of anybody else having cultivated the lands after that except on the admitted date of dispossession, which in the present case happens to be just in the ssason prior to the institution of the suit, Of course, this cannot arise when there is no evidence of possession and no other circumstance giving rise to the probability in favour of the plaintiffs case, but where, as in the present case, there is evidence, though not in itself satisfactory or reliable, and there is also a strong circumstance in favour of the plaintiffs possession, there is no reason why the principle of continuity of possession based upon title should not be raised in the plaintiffs favour. The Full Bench further decided that "each case must be decided upon its own merits."

34. In the year 1885, in the case of Dharm Singh v. Hur Pershad Singh 12 C. 38 : 6 Ind. Dec. 26, following the Privy Council case of Runjeet Ram Panday v. Goburdhun Ram Pandey 20 W.R. 25 , it was held that when there is evidence of possession on both sides, the Court can rightly accept the plaintiffs evidence which accords with his title. In that case the District Judge in appeal held that the plaintiffs had proved their title and that the oral evidence was mostly hearsay and inadmissible as legal evidence, but when coupled with the title of the plaintiff, the evidence of possession on his side was on the whole reliable and that, therefore, the plaintiffs "made out a prima facie case of possession within 12 years which it lay on the defendant to rebut." The High Court in upholding this judgment held that there was evidence of possession on both sides and, therefore, the Court below was right in preferring the evidence given by the plaintiffs because it accorded with the title which was found to be in the plaintiffs. The facts and the circumstances of that case and the findings of the Court exactly agree with those in the present case, and I do not see any reason why the plaintiffs should not be held to have made out a prima facie case of possession within 12 years when they gave oral evidence, but their evidence as well as that of the defendants was held by the lower Appellate Court to be unsatisfactory and unreliable. In fast, the District Judge deferred to the evidence, and the reason given for his decision that it was worthless, or useless, was due to the fact that the witnesses were not of the village in question where the land is situate. In the case of Rajkumar Roy v. Gobind Chunder Roy 19 C. 660 : 19 I.A. 140 : 6 Sar. P.C.J. 140 : 9 Ind. Dec. 883, the principle of continuity of possession was applied in the case of the plaintiff who had title in the land and proved possession at one time. No doubt, that was a case of a bheel land and there was difficulty in the proof of actual possession, but the principle applies to all kinds of lands, Their Lordships observed that the Law of Limitation in the year 1859 subjected a heavier burden of proof than that established by the Limitation Acts of 1871 and 1877.

35. In the year 1899, in the case of Thakur Singh v. Bhogeraj Singh 27 C. 25 : 14 Ind. Dec. 17 Stevens, J., remarked that the presumption can be given effect to where the evidence of possession is strong on both sides and apparently equally balanced, and not where the evidence on both sides is equally unworthy of reliance; but the case was decided in favour of the plaintiff as the land was parti or jungle, and there is no justification for such a wide and general proposition.

36. In the year 1901, in the case of Babu Kasturi Singh v. Rajkumar Babu Bissen Pragas Narain Singh 8 C.W.N. 876, Bodily and Mookerjee, JJ., observed that under the Privy Council case of Runjeet Ram Pandey v. Goburdhun Ram Pandey 20 W.R. 25 , the presumption that possession follows title may be applied where the evidence on both sides is conflicting, but the presumption might not be applicable if the evidence on both sides is unsatisfactory. Vide also the case of Mirza Shamsher Bahadur v. Munshi Kunj Behari Lal 12 C.W.N. 273 : 3 M.L.T. 212 : 7 C.L.J. 414, where Mookerjee and Caspersz, JJ., said that the presumption would arise in favour of plaintiff when the evidence is satisfactory on both sides. The word "unsatisfactory" used in the judgment may possibly be a slip.

37. In the year 1920, in the case of Madan Mohan Singh v. Brij Behari Lal 57 Ind. Cas. 717 : 5 P.L.J. 592 : 1 P.L.T. 505 : (1921) Pat. 29 : 2 U.P.L.R. (Pat.) 205, the plaintiffs were found to be out of possession for 12 years and the defendants were found not to be in possession for 12 years. The Article applicable was 142, as the plaintiffs alleged possession and dispossession and their suit was for ejectment. The defendants were admittedly in possession at the time of the suit. The plaintiffs were held entitled to succeed even when they were found to be out of possession for 12 years, because the defendants were not held to be in possession for 12 years. If the principle of this decision be applied to the present case, the evidence offered by the plaintiffs is unreliable as to possession within 12 years. The defendants failed to prove possession for 12 years. They were admittedly in possession on the alleged date of dispossession in the plaint. Applying the principle of the aforesaid decision, the plaintiffs must succeed and I do not know how to differentiate that case from the present one. Mr. Justice Das in delivering the judgment in the case referred to the case of Mc Donnell v. Mc Kinty (1847) 10 IL.R. 514; Smith v. Lloyd (1854) 23 L.J. Ex. 194 : 9 Ex. 562 : 2 Com. L.R. 1008 : 2 W.R. 271 : 156 E.R. 240 : 96 R.R. 837 : 22 L.T. (O.S.) 289; Trustees Executors & Agency Co. and Templeton v. Short (1888) 13 A.C. 793 : 68 L.J.P.C. 4 : 59 L.T. 677 : 37 W.R. 433 : 53 J.P. 138 and Secretary of State for India v. Krishnamoni Gupta 29 C. 518 (P.C.) : 29 I.A. 104 : 6 C.W.N. 617 : 4 Bom. L.R. 537 : 8 Sar. P.C.J. 260. From these cases he deduced the principle that "the owner must be considered in point of law as always in possession as long as there is no intrusion." I fully agree with this view. This evidently throws the onus upon the defendant in a case under Article 142 after the plaintiff proves his title and possession on the basis of that title, though it may be prior to 12 years before the suit.

38. In the year 1880, in the case of Radha Gobind Boy Saheb v. Inglis 7 C.L.R. 364 (P.C.) : 3 Suth. P.C.J. 809, in a case relating to possession of a certain quantity of land appertaining to a Mauza sailed Zulkur Khulul Shajai, their Lordships held that where "the plaintiff has proved his title, the defendant must prove that the plaintiff lost it by reason of his (the defendants) adverse possession." That case is sought to be distinguished on the ground that the land came out of water within less than 12 years before the institution of the suit, but their Lordships intended to lay down a general principle.

39. In the year 1902, in the case of Secretary of State for India v. Krishnamoni Gupta 29 C. 518 : 29 I.A. 104 : 6 C.W.N. 617 : 4 Bom. L.R. 537 : 8 Sar. P.C.J. 260, their Lordships held that a submerged land becomes derelict and no title therein can be acquired against the true owner, and that it will be contrary to principle and authority to imply the constructive possession of the trespasser whilst his lands were submerged, so as to enable the wrong-doer to obtain a title by adverse possession. In order to obtain such a title under the Limitation Act there must be actual possession of a person claiming as of right by himself or by persons deriving from him.

40. In the year 1916, in the case of the Secretary of State for India v. Chelikani Rama Rao 35 Ind. Cas. 902 : 39 M. 617 : 25 C.L.J. 69 : 31 M.L.J. 324 : 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 : 18 Bom. L.R. 1007 : 43 I.A. 192 , the Secretary of State was the plaintiff. The defendants were the Zamindars and were in possession, for over 20 years, of a certain island which came out of the Godavary, a tidal and navigable river. The title was with the plaintiff. The High Court of Madras, disagreeing with the District Judge, held that in the case of land, "which came into existence as land capable of occupation more than 60 years prior to the notification, the Crown must show by evidence that it had a subsisting title at some time earlier than that period," and the case was remanded for that purpose. Their Lordships of the Judicial Committee upset the decision of the High Court, holding that the aforesaid view of the law expressed by the High Court was erroneous. Their Lordships observed: "Nothing is better settled than that the onus of establishing property by means 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...it would be contrary to all legal principles thus to permit the squatter to put the owner of the fundamental right to a negative proof upon the point of possession." Their Lordships relied upon the case of Radha Gobind Roy Saheb v. Inglis 7 C.L.R. 364 : 3 Suth. P.C.J. 809 and Secretary of State for India v. Vira Rayan 9 M. 175: 3. Ind. Dec. 519. As to subsisting title, their Lordships observed that the title, of the Crown to the island was fundamental and until adverse possession against the Grown was complete, the fundamental fast remains and that fast forms a subsisting title, and that it is no part of the obligation of the Crown to fortify their own fundamental right by an enquiry into possession or the acceptance of any onus on that subject. This authority is conclusive upon the meaning of what subsisting title means. If it is proved that the title is not in any way transferred or extinguished or lost by adverse possession in favour of a stranger, the title is subsisting. This case is sought to be distinguished on two grounds: Firstly, that the land was an island formed out of the tidal and navigable river belonging to Government and the principle of the possession of the owner continuing so long as the land is under water will apply; but this is not the principle upon which the decision has been based. The point related to land which had coma out 60 years before the institution of the suit. Secondly, it is said that the case was decided under Article 144 of the Limitation Act, inasmuch as although the Government had title, it had not ever come into possession and there was no question of possession and dispossession. I do not think this interpretation is sound. The fact that the rightful owner gets possession and is dispossessed cannot possibly make his position worse than that when he had not got possession at all.

41. In the year 1882, in the case of Karan Singh v. Bakar Ali Khan 6 A.I. : 9 I.A. 99 : 4 Sar. P.C. 382 : 2 Ind. Dec. 1044, their Lordships of the Judicial Committee overruled the contention that the plaintiff must prove that he was in possession within the period of 12 years, on the ground that the contention was not tenable under "the present Law of Limitation," though "it would have been correct under the old law under which the suit must have been brought within 12 years from the date of the cause of action, but under the present law it may be brought within 12 years from the time when the possession of the defendant or some person through whom be claims becomes adverse to the plaintiff." In that case the plaintiff was in possession but became out of possession since 1863. The suit was brought in the year 1874. The onus was laid upon the defendant to prove that he was in possession for 12 years. This decision modities, therefore, considerably the effect of the decision reported as Mohima Chunder v. Mohesh Chunder 16 C. 473 (P.C.) : 16 I.A. 23 : 5 Sar. P.C.J. 321 : 8 Ind. Dec. 312 and the other authorities based upon that decision, which were good under the old Law of Limitation.

42. In the year 1917, in the case of Midnapore Zemindari Co., Ltd. v. Panday Sardar 41 Ind. Cas. 114 : 2 P.L.J. 506 : 2 P.L.W. 143, Mullick, J., followed the decision in the case of the Secretary of State for India v. Chelikani Rama Rao 35 Ind. Cas. 902 : 39 M. 617 : 25 C.L.J. 69 : 31 M.L.J. 324 : 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 : 18 Bom. L.R. 1007 : 43 I.A. 192 , and modified his earlier decision in the Calcutta High Court and held that the plaintiff, having title, must recover possession unless it is proved that the defendant has acquired title by adverse possession by holding for 12 years irrespective of whether Article 142 or 144 applies.

43. In the year 1914, in the case of Brijraj Singh v. Ganga Bakhash Singh 23 Ind. Cas. 855 : 18 O.C. 43 : 2 O.L.J. 346, the maxim was enunciated that where possession in fact is undetermined, possession in law follows the right to possess. In other words, possession follows title. So far as it is applicable to land under water, this point is simple and the principle is applied to such a case even where the trespasser is shown to be in possession before and after the submersion of the land.

44. In the year 1889, in the case of Mahammud Amanulla Khan v. Badan Singh 17 C. 137 : 16 I.A. 148 : 13 Ind. Jur. 330 : 5 Sar. P.C.J. 412 : 23 P.R. 1890 : 8 lnd. Dec. 629, the plaintiff was dispossessed in the year 1843, by virtue of Regular Settlement more than 12 years prior to the institution of the suit and it was, therefore, incumbent upon him to establish his subsisting title by showing that he came into possession subsequent to 1843, that is, within 12 years of the suit. That case was decided upon its own merits and is dissimilar to the facts of the present case, where no dispossession has occurred at any time before 12 years of the commencement of the suit.

45. In the year 1899, in the case of Innasimutlu Udayan v. Upakarath Udayan 23 M. 10 : 26 I.A. 210 : 7 Sar. P.C.J. 620 : 8 Ind. Dec. 401, the defendant was in admitted possession for seven years before the suit. He had documentary evidence showing that he had been in possession for more than five years immediately before the seven years which was held to be of reliable character. It was held that the burden of rebutting the evidence of possession in favour of the defendant for over 12 years was not discharged by the plaintiff. In that ruling it was clearly held "that the burden of proving possession for 12 years before the 2nd of November 1892 (the date of the suit), which originally rested on the appellant, was amply sustained by him" and that the Subordinate Judge was right in upholding the possession of the appellant for the period of limitation. The appeal was, therefore, allowed and the suit was dismissed. This view finds support from the decision of their Lordships of the Judicial Committee in the year 1905 in the case of Rani Hemanta Kumari Debi V. Maharaja Jagadindra Nath Roy Bahadur 10 C.W.N. 630 : 3 A.L.J. 363 : 8 Bom. L.R. 400 : 1 M.L.T. 136 : 16 M.L.J. 272, where upon the evidence their Lordships held that although the plaintiff was admittedly out of possession for a period of 11 years and the defendant alleged possession for over 12 years and longer and the period of limitation being so narrow, the question of onus was important and, therefore, the onus was upon the plaintiff to prove that he was in possession within that one year, that is, within the 12 years of the suit. At the same time their Lordships held that on the question of evidence the initial fact of the appellants title comes to her aid with greater or lesser force according to the circumstances established in evidence. This was taken to be a question of fact, and the view of the Trial Court was accepted as of greater value than that of the High Court and it was held that the Trial Court was right in holding that the plaintiff was in possession and was dispossessed at the time alleged by her. This circumstance, it was held, the High Court ought to have taken into consideration and it was held that from the date of the title of the plaintiff which accrued in 1859, she must be held to have possessed the disputed land downwards until the date of dispossession. In the present case the circumstance set forth in the Munsifs judgment, who heard the witnesses, was not duly taken into consideration by the District Judge, and particularly the fast that the defendants land contiguous was left dunga or parti on account of their inability to cultivate it. I, therefore, hold that the finding of fact of the Munsif was not upset and upon that finding the only construction possible was that the plaintiffs were in possession until they were dispossessed, as alleged by him.

46. In the year 1917, the case of Basanta Kumar Roy v. Secretary of State for India 40 Ind. Cas. 337 : 44 C. 858 : 1 P.L.W. 593 : 32 M.L.J. 505 : 21 C.W.N. 642 : 15 A.L.J. 398 : 25 C.L.J. 487 : 19 Bom. L.R. 480 : (1917) M.W.N. 482 : 6 L.W. 117 : 22 M.L.T. 310 : 44 I.A. 104 , dealt with chur land and land which same out after diluviation, and it was held that during that period the owner was not dispossessed, or ceased to be in possession and constructively it continues until he is dispossessed, and upon the occasion of the dispossession before the statutory period of limitation has elapsed, constructively it survives. The scope of Article 142 was defined, but the facts of the case actually do not help us in the present case. In the case of Trustees, Executors & Agency Co. and Templeton v. Short (1888) 13 A.C. 793 : 68 L.J.P.C. 4 : 59 L.T. 677 : 37 W.R. 433 : 53 J.P. 138 Lord Macnaghten quoted with approval the words of Parke, B., in the case of Smith v. Lloyd (1854) 23 L.J. Ex. 194 : 9 Ex. 562 : 2 Com. L.R. 1008 : 2 W.R. 271 : 156 E.R. 240 : 96 R.R. 837 : 22 L.T. (O.S.) 289: "We are clearly of opinion that the Statute applies not to want of actual possession by the plaintiff but to cases where he has been out of, and another in, possession for the prescribed time. There must be both absence of possession by the person who has the right, and actual possession by another, whether adverse or not, to be protected to bring the case within the Statute."

47. Thus if the title of the plaintiff is proved and his possession also at one time, and the defendant fails to prove adverse possession for the statutory period, beyond what the plaintiff admits, the land must be held to be in the possession of the rightful owner, the plaintiff.

48. It is thus clear that there has been only an apparent conflict of decisions upon the question now under consideration. Some of the decisions are due to the unconscious adherence to the former law, the change in the new law having been lost sight of. The analysis of the decisions of their Lordships of the Privy Council leaves no manner of doubt, as expressly observed by their Lordships in the case of Rajkumar Roy v. Gobind Chunder Roy 19 C. 660 : 19 I.A. 140 : 6 Sar. P.C.J. 140 : 9 Ind. Dec. 883 and Karan Singh v. Bakar Ali Khan 6 A.I. : 9 I.A. 99 : 4 Sar. P.C. 382 : 2 Ind. Dec. 1044, that the Law of Limitation under the old Regulations and Acts prior to 1871 was more stringent in requiring the plaintiff in a suit for possession to prove not only that he has title to the land, but also that he was in possession within 12 years before the time "the cause of action arose" This was so whether the plaintiff sued merely upon his title or upon his allegation of possession and subsequent dispossession. The former law was split up into two classes of cases in Articles 143 and 145 in 1871 and Articles 142 and 144 in 1877 and 1908. The plaintiff under the present provision, after proving his subsisting title, throws the onus upon the defendant to prove continuous possession of 12 years prior to the institution of the suit. No doubt the plaintiff under both the Articles, as observed above, has in the first instance to prove his title and a subsisting title. In a case under Article 142 he must prove title and possession to show that his title subsisted, and under Article 144 he must prove his title where he was never in possession at all. In the former the defendant succeeds by merely showing that he had dispossessed the plaintiff for over 12 years, and not as alleged by the plaintiff within 12 years. In the latter case the defendant has to show that not merely he was in possession but that he was in possession adversely to the plaintiff, that is, openly and continuously and within the knowledge of the plaintiff for a period of 12 years. The defendant will count in his favour only the period from the time that his possession became adverse, although be may have been in possession even previously either with the permission of the plaintiff or without his knowledge. In a care under Article 142 he has not to show that be was in adverse possession, but he has only to show that the plaintiff ceased to be in possession and he entered into possession, or that he actually dispossessed the plaintiff and has been in possession for 12 years before the suit. This appears to ma to be the real distinction between the two Articles, Under Article 142 if there is no evidence of possession on either side and the land is fit for cultivation or capable of user in the ordinary way, the plaintiff must fail. If there is evidence on both sides equally balanced or satisfactory, the presumption of possession following title may give rise to the probability of the plaintiff being in possession and the Court may decide the suit in his favour. If there is conflict of oral evidence on both sides, or if the oral evidence is apparently unsatisfactory or unreliable on both sides, the Court may take into consideration other circumstances in the case to see where the propbability of the case lay. The title to the property in dispute is a circumstance which may induce the Court to accept the evidence which otherwise, standing alone, would seem to be unreliable. The other evidence and circumstance in the case may also be looked into in judging of the oral evidence of the nature referred to above.

49. Applying the aforesaid test to the present case, as observed above, the plaintiff in the present case proved that the defendants had no means of cultivating the lands, so much so that the contiguous land lying to the north called Pakadia Bahal main land, to which the small bit of land is said to appertain, was left by them to become fallow on account of their poverty and that the land of the plaintiffs to the south called Pathar Chapar Bahal land, to which it has been proved that the bit of land appertains, was all cultivated by the plaintiffs. The probability, therefore, was in favour of the plaintiffs having cultivated this bit of the land on the north side of their admitted big plot. Therefore, although the oral evidence was not satisfactory according to the Munsif and valueless or unreliable according to the learned District Judge, the Munsif was right in considering the circumstance referred to above, coupled with the title in favour of the plaintiffs, as giving rise to the probability of the plaintiffs case being true that they were in possession all along and were dispossessed forcibly in 1916, on account of the new land given by the Raja of Jharia in favour of defendant No. 5 and their having sub let it to defendants Nos. 1 to 3, their blagidars, for the purpose of forcibly dispossessing the defendants. This is clear from the following finding of the Munsif that: "It appears to me that it was to make up the loss that the defendant No. 5 Banamali Sarkar, lessee of main land, has set up the bhagidars, defendants Nos. 1 to 3, to get hold of the plaintiffs land." The finding is in accordance with the allegation of the plaintiff that he was dispossessed by the defendants Nos. 1 to 3 on the strength of their bhagidari settlement from defendant No. 5. Therefore, according to the finding of the Munsif, the plaintiffs allegation of dispossession in 1916 was proved. Therefore, he was in possession up to that date.

50. There is, therefore, a substantial finding of possession and dispossession, as alleged by the plaintiff, in the plaint. The defendants, therefore, failed to prove that they were in possession anterior to the time the plaintiff alleged that they dispossessed him, which allegation was upheld by the Munsif.

51. Unless the finding of the Munsif was clearly set aside, the District Judge was not competent to hold that in law the plaintiff could not succeed. The question of law did not arise upon the findings of the Munsif and the District Judge, and if it did arise, in my poinion, the view of the law taken by the District Judge was wrong.

52. I would accordingly affirm the view already taken by me and would decree the plaintiffs suit in terms of the decree granted by the Munsif.

53. As to the point of law referred to us, I have already shown that since the present Law of Limitation was enacted in 1871, which purports to do away with the rigidity of the onus of proof which was cast upon the plaintiff under the former law, to prove his possession within 12 years of the suit after he had established his title to the property, the tendency of the decisions of the Privy Council has been to throw the onus upon the defendant to prove his 12 years continuous possession in order to defeat the claim of the rightful owner. This view was undisputed in the case of Runjeet Ram Pandey v. Goburdhun Ram Pandey 20 W.R. 25 , though in a limited sense, inasmuch as the evidence of possession in that case on both sides was equally strong. This was the case decided under the old law but has been taken to be the leading case upon the subject in some of the authorities. The leading case, however, on the subject is the case of Radha Gobind Roy Sahib v. Inglis 7 C.L.R. 364 : 3 Suth. P.C.J. 809, decided under the new law in 1880. Their Lordships of the Judicial Committee in unequivocal terms gave expression to the law in the present Limitation Act in holding that "where the plaintiff has proved his title, the defendant must prove that the plaintiff lost it by reason of his (the defendants) adverse possession." This case struck the key-note upon the subject and since then has been followed in all the subsequent cases in the Privy Council, tide Rajkumar Roy v. Gobind Chunder Roy 19 C. 660 : 19 I.A. 140 : 6 Sar. P.C.J. 140 : 9 Ind. Dec 883; Secretary of State for India v. Chelikani Rama Rao 35 Ind. Cas. 902 : 39 M. 617 : 25 C.L.J. 69 : 31 M.L.J. 324 : 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 : 18 Bom. L.R. 1007 : 43 I.A. 192and Karan Singh v. Bakar Ali Khan 5 A.I.: 9 I.A. 99 : 4 Sar. P.C. 382 : 2 Ind. Dec. 1044, The tendency, therefore, of the present law has been to restore the ancient view on the subject, namely, a person proving title to the property in dispute is entitled to succeed and to recover possession of it, unless and until the possessory holder is able to prove an adverse possession for the statutory period. "A man in possession," says Bramwell, L.J., "has a right to call upon a plaintiff in ejectment to prove his title. If the plaintiff does prove a prima facie title, then the man in possession must prove his. The rule is the same in respect of chattels.... The plaintiff must show a title to the chattels before he can call upon the defendant to prove his title. If, however, the person in possession of either the land or the chattel does not deny by his pleading the title of his adversary, it seems to be just that in order to succeed he should be compelled to show a title existing in himself," Danford v. McAnulty (1881) 6 Q.B.D. 645: 50 L.J.Q.B. 294 : 44 L.T. 372 : 29 W.R. 437. Thus after the title of the plaintiff is established and the defendant fails to prove his, the plaintiff must succeed unless the defendant proves an adverse possession for the statutory period of 12 years. It does not matter whether the case comes under Article 142 or 144 of the Limitation Act. Therefore, if the evidence of possession on both sides is valueless or unreliable, the plaintiff having title in him must oust the defendant, who is in possession without any title.

54. I would accordingly answer the point of law referred to us in the affirmative.

Dag, J.

55. I entirely agree with my Lord the Chief Justice.

Adami, J.

56. I agree with the opinion expressed by the learned Chief Justice in the Order of Reference and in his judgment.

Bucknill, J.

57. The fasts were apparently very simple. The plaintiffs in 1901 bought some arable land from one Gobardhan Singh by registered kobala, dated 20th Phagun 1308. They allege that they were in possession of the land until 1316, when the defendants dispossessed them from a portion of it. The plaintiffs in 1916 brought a suit against the defendants for recovery of possession of the land from which they had been, as alleged, dispossessed by the defendants.

58. The defendants denied the plaintiffs title, contending that the land belonged to the fourth defendant, the Raja of Jharia, It was found, on the evidence and on a local inspection by the Munsif, that the land in dispute did in fact fall within the confines of the property purchased by the plaintiffs and this finding was not disturbed on appeal by the District Judge. And there the matter really ended, for the plaintiffs produced no evidence of any value to show that they were ever in possession nor, though their possession in 1916 was admitted, did the defendants adduce any evidence of any value as to how long they had been in possession. Of the oral evidence such as it was, the Munsif says: "The defendants evidence is very meagre," and evidence of possession of the plaintiffs side is not satisfactory," and finally, "both sides evidence is unsatisfactory." The District Judge is even more emphatic. He states: "The plaintiffs evidence is useless. The evidence for the defence is equally valueless."

59. In endeavouring to apply the law to this state of facts, the Munsif considered that there existed a benefit of presumption in favour of the plaintiffs that possession followed title, and that the onus was upon the defendants to prove that they dispossessed the plaintiffs more than 12 years prior to the institution of the proceedings: that as the defendants had failed to discharge this onus, the plaintiffs should succeed. The Munsif added that as the defendants did not admit that they had dispossessed the plaintiffs at any time, no question of adverse possession arose. The District Judge, however, took a different view, being of the opinion that the benefit of presumption that possession follows title only arises in favour of a plaintiff where the evidence of possession on both sides is equally balanced and not, as in this case, equally unworthy of credit; subject, however, to cases in which are concerned lands of special character such as waste or jungle. He, therefore, allowed the appeal.

60. I apprehend that the correct law to be applied to the facts of this case is contained in the following principles.

61. A plaintiff sues a defendant for recovery of possession of arable land of which he alleges that be (the plaintiff) has been dispossessed by the defendant; the frame of such a suit contains a specific admission that the defendant was prior to the institution of the suit in possession of the land.

62. Now under Article 142 of the Indian Limitation Act, 1908, the plaintiffs suit would be barred if he did not institute it within 12 years of the date of his dispossession: his cause of action only arises out of the fact of dispossession; and consequently it has been repeatedly held that in such class of suits it is not sufficient, to enable the plaintiff to succeed, for him merely to prove that at some date antecedent to a period of 12 years prior to the institution of the suit he had acquired some paper title to the land, but that he must also prove that be was in possession within that period. This principle has been explained and elaborated in numerous cases and in several directions. It has, for example, been held that where land is of such a character (e.g., jungle, waste land or under water) that proof of any act of possession is substantially impracticable, the presumption in favour of the plaintiff that possession follows title may be regarded as sufficient to establish prima facie the plaintiffs claim and to shift the onus upon the defendant of proving the contrary Mahomed Ali Khan v. Khaja Abdul Gunny 9 C 741: 12 C.L.J. 257 : 4 Ind. Dec. 1145.

63. Again, it has been held on good authority that a similar position arises if the evidence on behalf of the plaintiff and on behalf of the defendant as to the formers possession at any time during the crucial period is strong and evenly balanced Maharajah Koowur Baboo Nitrasur Singh v. Baboo Nund Loll Singh 8 M.I.A. 199 : 1 Suth. P.C.J. 420 : 1 Sar. P.C.J. 744 : 1 W.R.P.C. 51 : 19 E.R. 506 and Lala Singh v. Latif Hossin 28 Ind. Cas. 477 : 21 C.L.J. 480.

64. Where, however, there is no evidence or no evidence of any value on behalf of the plaintiff as to his possession at any time during the crucial period, the plaintiffs case simply fails. Fakira Lal Sahu v. Munshi Ramcharan Lal 35 Ind. Cas. 554 : 1 P.L.J. 146. It does not matter if the defendants evidence is weak or indeed if he offers no evidence at all.

65. The last proposition appears to me to govern the present case. Here the plaintiff only proved that be had more than 12 years prior to the institution of the suit bought the property from a person not a party to the suit. The property was cultivable land and the defendants possession of it prior to the date of suit was admitted. The plaintiff failed to prove his possession at any time within 12 years prior to the institution of the suit and thus did not make out a prima facie case or shift the onus upon the defendant. The defendant might safely have adduced no evidence at all, but if he did, then, so long as it did not prove the plaintiffs case (and it did not do so here), it could not by its intrinsic weakness strengthen the plaintiffs case.

66. I, therefore, agree with my Lord the Chief Justice that the answer to both the questions referred to this Bench is in the negative.