# Bansh Raj v. Raj Pat & Ors

- **Citation:** (2016) 4 ILRA 85
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-01-29
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bansh-raj-v-raj-pat-ors-43693
- **Pages:** 41

## Text

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4 All. Bansh Raj Vs Raj Pat & Ors.
85

33. In the case of Haryana Waqf Board vs. Shanti Sarup and others (2008) 8 SCC 761,
Hon'ble the Supreme Court held as under :-

"It is also not in dispute that even before the appellate court, the appellant Board had
filed an application for appointment of a Local Commissioner for demarcation of the suit land. In
our view, this aspect of the matter was not at all gone into by the High Court while dismissing the
second appeal summarily. The High Court ought to have considered whether in view of the nature
of dispute and in the facts of the present case, whether the Local Commissioner should be
appointed for the purpose of demarcation in respect of the suit land."

34. Accordingly, the Court cannot prevent a party from adducing the best evidence, if such
evidence can be gathered with the help of a Commissioner. Refusal of the request of the party to
appoint a Commissioner under Order 26 Rule 9 CPC to make a local investigation in an appropriate
case amounts to failure of exercise of jurisdiction vested in it. In this view of the matter, I find that
the impugned order cannot be sustained and the action on the part of appellate court, rejecting the
prayer of the petitioner/ plaintiff for issue of commission most probably will produce error or
defect in the decision of the case on merits. Therefore, the impugned order dated 23.2.2012 passed
by opposite party no.1/ Additional District Judge, Court no.2 Lucknow liable to be set aside.

35. For the foregoing reason, the writ petition is allowed. The impugned order dated 21.3.2012
( Annexure no.1) passed by opposite party no.1/ Additional District Judge, Court no.2, Lucknow is
set aside and the appellate authority/ opposite party no.1 is directed to appoint commissioner in the
matter in issue and after obtaining his report, dispose of the appeal expeditiously.

36. No order as to cost.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.

Second Appeal No.- 2739 Of 1986

Bansh Raj ...Appellant
 Versus
Raj Pat & Ors. ...Respondents

Counsel for Appellant:
S.K. Sinha, B.D.Shukla, S.K. Shukla

Counsel for Respondents:
S.C. Tripathi, Abhishek Srivastava, B.R. Tripathi, Bal Mani Tripathi
86 INDIAN LAW REPORTS ALLAHABAD SERIES

HELD

Title over disputed land The plaintiffs successfully proved their title over the disputed land through a
registered sale deed dated 10.01.1973 executed by Ram Iqbal Singh, who was competent to transfer his
share. The findings of the Lower Appellate Court on title were upheld.

Possession and nature of defendants' occupation

The defendants failed to establish any lawful title or authority to remain in possession of the disputed
premises. Their plea amounted to permissive possession, not adverse possession.

Adverse possession not proved

No specific pleadings or evidence satisfying the essential ingredients of adverse possession were pleaded or
proved. In absence of such pleadings, no title could accrue to defendants by adverse possession.

Burden of proof and shifting of onus

The plaintiffs discharged the initial burden of proof. Upon doing so, the onus shifted to the defendants, which
they failed to discharge. The distinction between burden of proof and onus of proof was correctly applied.

Interference in second appeal

The findings of the Lower Appellate Court were based on proper appreciation of evidence and were neither
perverse nor illegal. No substantial question of law survived for interference under Section 100 CPC.

Result

The Second Appeal was dismissed. The decree for ejectment in favour of the plaintiffs was upheld.

CASE LAW DISCUSSED

Rangi v. Gaon Sabha, 1970 RD 495
Bondar Singh & Ors. v. Nihal Singh & Ors., AIR 2003 SC 1905
Kulwant Kaur v. Gurdial Singh Mann & Ors., AIR 2001 SC 1273
A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136
R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami Temple, (2003) 8 SCC 752 / (2004) 6 JT
(SC) 442
Anil Rishi v. Gurbaksh Singh, AIR 2006 SC 1971
Krishna Mohan Kul v. Pratima Maity, AIR 2003 SC 4351
Sundar v. Parbati, (1889) 12 All 51 (PC)
Bailochan Karan v. Bansat Kumari Naik, (1999) 2 SCC 310

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. This is a defendant's appeal under Section 100 of the Code of Civil Procedure (hereinafter
referred to as the "CPC") which has arisen from the judgment and decree dated 17.10.1986 passed
by Sri C.N. Singh, Additional Civil Judge Second, Jaunpur in Civil Appeal No. 103 of 1981,
4 All. Bansh Raj Vs Raj Pat & Ors.
87
whereby it has allowed appeal and set aside judgment and decree dated 07.03.1981 passed by Sri
Virendra Kumar Khare, Munsif City, Jaunpur, dismissing Original Suit No. 313 of 1976. The
Lower Appellate Court has decreed the suit by reversing decree of Trial Court.

2. The appeal was admitted on the following two substantial questions of law:

"(I) Whether court below erred in relying on sale deed of 1973 which was executed by
Zamindar as alleged by plaintiff when he had no rights left to him due to abolition of Zamindari?

(II) Whether findings recorded by court below against defendant that he was licensee of
plaintiff is perverse, there being no legal evidence worth the name in this finding?"

3. The plaintiffs, Rajpat, Nanhku and Manku sons of Sahdeo, instituted Original Suit No. 313
of 1976 for ejectment of defendant-appellant from disputed premises constituting a Dalan and
Madaha, detailed in the map appended to plaint as 'D' and 'CH', respectively.

4. The plaint case is that plaintiffs are owners of Dalan, Madaha and trees existing on plot No.
41 which also comprised of a Sahan. Plot No. 41 was acquired by plaintiffs through registered sale
deed dated 10.01.1973 executed by Sri Ram Iqbal Singh, Zamindar. Defendants, Kalkatti son of
Kariya and Banshraj son of Kalkatti were Washerman and had no place for residence. Plaintiffs and
other villagers used to have their clothes washed by defendant and with permission of villagers,
defendants were residing in village. In January, 1973, for 2-3 years defendants sought permission to
reside in Dalan and Madaha at plot No. 41 with assurance that whenever required they would
vacate the same. Plaintiffs permitted them and their capacity to stay in disputed premises was that
of a licensee. After two years plaintiffs requested defendants to vacate premises which was denied,
hence the suit.

5. Defendants-appellant contested suit stating that plaintiffs and defendants both are in
possession of disputed premises but disputed Dalan and Madaha was in possession of defendants.
Defendant 1 is resident of Village Katahari, Tahsil Kirakat, District Jaunpur and by occupation a
Washerman. About 40-41 years back defendant 1 came to Village Biswa where there was no
Washerman and stayed thereat. On the request of villagers, the then Zamindar permitted defendant
1 to occupy disputed premises and since then he is residing and in possession of disputed premises.
His possession of disputed premises is much prior to enforcement of U.P. Zamindari Abolition and
Land Reforms Act, 1950 (hereinafter referred to as the "Act, 1950"), i.e., before abolition of
Zamindari. The suit is barred by non-impleadment of necessary parties, limitation and also Sections
38 and 41 of Specific Relief Act, 1963 (hereinafter referred to as the "Act, 1963"). The suit is
liable to be dismissed for want of notice under Section 106 of Transfer of Property Act, 1882
(hereinafter referred to as the "Act, 1882").

6. Trial Court formulated nine issues as under:

^^1- D;k oknhx.k fookfnr Hkwfe ,oa fuekZ.k ds ekfyd gSa\
88 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Whether the plaintiffs are owners of the disputed land and construction?

2- D;k okn izfroknh uacj&1 dh iRuh ,oa cPpksa ds vla;kstu ls nks"ki w.kZ gS\

2. Whether the suit suffers from non-joinder of wife and children of defendant no. 1?

3- D;k okn dk ewY;kadu de gS vkSj U;k;'kqYd vi;kZIr vnk fd;k x;k gS\

3. Whether the suit is undervalued and the court fee is underpaid?

4- D;k okn dkyckf/kr gS\

4. Whether the suit is time-barred?

5- D;k okn /kkjk 38@41 fofufnZ"V vuqrks"k vf/kfu;e ls ckf/kr gS\

5. Whether the suit is barred by Section 38/41 of Specific Relief Act?

6- D;k okn /kkjk 106 lEifRr LFkkukUrj.k vf/kfu;e ds vUrxZr uksfVl u fn; s tkus ds dkj.k
=qfViw.kZ gSa\

6. Whether the suit is flawed on account of a notice u/s 106 of Transfer of Property Act
having not been given?

7- D;k okn foca/ku ,oa miefr ds fl)kUr ls ckf/kr gS\

7. Whether the suit is barred by principles of estoppel and acquiescence?

8- D;k fookfnr Hkwfe mfpr :i ls fofufnZ"V ugha gS\

8. Whether the disputed land is not properly specified?

9- D;k oknhx.k fdlh vuqrks"k ds ikus ds vf/kdkjh gSa\**

9. Whether the plaintiffs are entitled to any relief?"

(English Translation by Court)

7. While considering issue 1, Trial Court observed that Arazi 41 has area of one acre wherein
plaintiffs are owner of 50 decimal of land. There is no partition or division of said Arazi yet
plaintiffs are owner of 50 decimal of Arazi 41, hence they are owner of disputed premises. Trial
Court then proceeded further to consider the question, whether plaintiffs constructed disputed
4 All. Bansh Raj Vs Raj Pat & Ors.
89
Dalan and Madaha and gave possession thereof to defendants in January, 1973 but answered it
against plaintiffs.

8. Issue 2 relating to non-impleadment of necessary parties was answered in favour of
plaintiffs. Issue 3 was already answered vide order dated 29.02.1980 in favour of plaintiffs and
made part of judgment. Issues 4, 5 and 6 were also answered in favour of plaintiffs. However, issue
7 was answered against plaintiffs. Issue 8 was also answered in favour of plaintiffs. While
considering issue 9, in the light of findings recorded on issues 1 and 7, suit was dismissed vide
judgment and decree dated 07.03.1981.

9. Thus Trial Court after holding that construction of Sahan and Dalan was not owned by
plaintiffs and that the suit was barred by principle of estopple and acquiescence, dismissed the
same.

10. The plaintiffs-respondents then preferred Civil Appeal No. 103 of 1981. The Lower
Appellate Court (hereinafter referred to as the "LAC") found that defendants had not proved that
they possessed disputed property and raised construction over it, 30-35 years back. On the contrary
erstwhile ownership of Ram Iqbal Singh was duly proved. This was also proved that disputed
property was earlier in possession of plaintiffs and subsequently they got a sale deed executed from
owner of premises, i.e., Ram Iqbal Singh. Therefore, plaintiffs had proved raising of construction
on disputed property with permission of Zamindar, Ram Iqbal Singh who also subsequently
transferred land by a sale deed. In these circumstances LAC allowed appeal and decreed suit
granting relief of ejectment of defendants-appellant from disputed premises.

11. This appeal came up for hearing before Hon'ble Anant Kumar, J. on 09.07.2014 when it
was noticed that certain documents of revenue record mentioned in judgments of courts below were
not available with record of court below. The Court directed Registry to trace out the said record.
Thereafter on 04.09.2014, after perusing office report that revenue record was not available in
lower court record, it directed the office to sent letter to court below, if documents are not
available, to get those documents reconstructed. Pursuant thereto, District Judge, Jaunpur vide
letter dated 22.09.2014 has informed this Court that revenue records were consigned to record
room and documents papers No. 56 Ga, 60 Ga, 61 Ga, 81 Ga, 82 Ga, 83 Ga, 86 Ga and 87 Ga have
all been weeded out. Paper No. 64 Ga, original sale deed is available.

12. When matter came up for hearing, learned counsel for appellant stated that he has already
filed written argument and Court may decide appeal after perusing the same and the available
record.

13. Learned counsel for appellant has stated in the written argument that suit was filed on
19.07.1976. Plaintiffs founded their case on sale deed dated 10.01.1973 and that defendants were
given permission in January, 1973 to stay in disputed premises. The said permission was revoked in
June, 1976. Defendants-appellant contested suit claiming that they are owner in possession over
Dalan and Madaha and plaintiffs have no concern therewith. The defendant 1 came in village about
90 INDIAN LAW REPORTS ALLAHABAD SERIES
40-41 years back and constructed Dalan and Madaha over disputed land with permission of
Zamindar. On the date of vesting defendants became owner of existing construction. Defendants
were allotted adjacent land for agricultural purposes. Trial Court while dismissing suit observed:

i) The land in dispute was recorded as 'Banjar'. The old number of plot in dispute was
50/1 and 50/2 in Khatauni or 1356 Fasli, it was recorded as 'Banjar'.

ii) Banjar land was converted into Abadi by villagers including defendant-appellant
without permission of Zamindar.

iii) Plaintiffs have failed to prove that Dalan and Madaha was constructed by plaintiffsrespondents.

iv) Plaintiffs have also failed to prove that they have granted permission to defendantappellant to live in Dalan and Madaha.

v) Defendants are residing in Dalan and Madaha for last 30-35 years without any
objection on behalf of plaintiffs.

14. It is then contended that there is no evidence on record relied by LAC to show that
plaintiffs raised disputed construction with permission of Zamindar. Findings of LAC in this regard
are based on no evidence. The sale deed is dated 10.01.1973. Zamindari was abolished w.e.f. 1952.
The Ex-Zamindar, Ram Iqbal Singh, therefore, had no right or title over disputed land in 1973 to
transfer land to plaintiffs. The plaintiffs could not have become owner in possession of disputed
plot. The sale deed dated 10.01.1973, foundation of title of plaintiffs, could not have conferred such
title on plaintiffs.

15. He further urged that LAC relief on the statement of Ex-Zamindar, Ram Iqbal Singh,
whose statement is not worth believing. Ram Iqbal Singh had stated that his uncle was Zamindar of
plot in dispute and not his mother. He stated that a patta was executed in favour of his mother by
his uncle, so she became "Bhumidhar". This statement of Ram Iqbal Singh is not supported by any
evidence on record. Admittedly neither Ram Iqbal Singh nor his mother was Zamindar of plot in
dispute, but according to his statement his uncle was Zamindar. No patta has been filed nor there is
any record to prove that uncle of Ram Iqbal Singh has executed patta in favour of his mother. There
is no evidence on record that the land in dispute was ever recorded as Bhumidhari land of mother
of Ram Iqbal Singh. Rather Khatauni 1356 Fasli proves that it was recorded as 'Banjar', old plot no.
50/1 and 50/2. During consolidation operation new no. 41 of old nos. 50/1 and 50/2 had been
recorded in the name of Smt. Dharmraji and Smt. Balraji. Thus, sale deed dated 10.01.1973 which
is the basis of title of plaintiffs could not have conferred any title on plaintiffs. LAC has not
considered these material, submission and evidence on record, so findings recorded by LAC is
illegal and is liable to be set aside.
4 All. Bansh Raj Vs Raj Pat & Ors.
91

16. In respect of substantial question no. 2, appellant's case is that Trial Court has recorded
following findings based on evidence:

i) The plaintiff did not produce any evidence that permission was granted to defendantappellant to live in construction in dispute. Plaintiffs in their statement did not support their
contention that in January, 1973, Dalan and Madaha was given to defendant.

ii) There was no witness present at that time.

iii) LAC did not consider and discuss plaintiffs evidence on this point and has jumped to
the findings without any evidence in support of it on behalf of plaintiffs that they have given
permission to appellant-defendant to live in it and now they have revoked permission. This finding
is perverse.

iv) LAC has also misread documentary evidence in holding that plaintiff name was
recorded in revenue record. Trial Court has considered these documents and has rejected plea taken
by plaintiff. Name of plaintiffs had not been recorded. Paper No. 81 Ga, Ch. Form-45, Ch Form 41
or in Paper No. 53 Ga, do not support the case of plaintiffs.

17. It is submitted that LAC has recorded finding otherwise which is perverse and not
supported by any evidence, therefore, impugned judgment is liable to be set aside. Reliance is
placed on decisions in Bondar Singh and others Vs. Nihal Singh and others, AIR 2003 SC 1905
and Kulwant Kaur Vs. Gurdial Singh Mann and others, AIR 2001 SC 1273.

18. Since none appeared on behalf of plaintiffs-respondents, hence this Court has proceeded
ex parte and deciding appeal on the basis of arguments advanced by learned counsel for appellants
vide written arguments and after perusal of available record.

19. Defendant-appellant has relied on the findings of Trial Court that land in dispute was
recorded as Banjar and for that purpose he referred to Khatauni of 1356 Fasli. If that be so, the
disputed land would not be covered by definition of 'land' under Section 3(14) of Act, 1951 and,
therefore, question of its vesting under the provisions of Act, 1951 with defendant-appellant also
would not arise. A Banjar land is not one as is covered by definition of "land" under Section 3(14)
of Act, 1951, is the view taken by this Court in Rangi Vs. Gaon Sabha, 1970 RD 495.

20. It is also evident from record (Paper No. 81C) that in consolidation proceedings disputed
plot in its entirety was recorded in the name of Dharamraji and Balraji. Ram Iqbal Singh is the son
of Dharamraji and succeeded property after death of Dharamraji. He sold his share in disputed
property vide sale deed dated 10.01.1973 to plaintiffs-respondents. Ram Iqbal Singh was examined
as PW-2 and he proved these facts.

21. On the contrary, defendant-appellant's case is that their predecessors came to village in
question several years back and stayed in premises in question. Admittedly, disputed premises was
92 INDIAN LAW REPORTS ALLAHABAD SERIES
not owned by predecessors of defendant-appellant. No evidence has come on record to show their
title or that of defendant-appellant. He also did not show any valid authority to occupy disputed
premises. While owner of property in dispute, Ram Iqbal Singh, has stated that plaintiffsrespondents were occupying property even before execution of sale deed, no otherwise credible
evidence has been adduced by defendant-appellant to controvert aforesaid evidence of ExZamindar, Ram Iqbal Singh.

22. Both the courts below have recorded finding regarding title over disputed land in favour of
plaintiffs-respondents and thus I find no reason to disturb it.

23. However, with respect to Dalan and Madaha, Trial Court has recorded a finding against
plaintiffs-respondents for only reason that plaintiffs-respondents could not adduce any evidence to
show that aforesaid construction was raised by them. In fact an inference has been drawn by Trial
Court in respect of constructions against plaintiffs-respondents ignoring the fact that when
plaintiffs-respondents were occupying premises prior to 1973 and no credible evidence could be
brought by defendant-appellant before court below to show that possession over disputed land, the
question of raising construction thereon by defendant-appellant would/does not arise at all.
Therefore, while partly answering issue 1 against plaintiffs-respondents, Trial Court completely
erred and recorded a perverse finding and that has been corrected by LAC by allowing appeal and
recording a finding otherwise.

24. Learned counsel for appellant vehemently contended that evidence was not adduced by
plaintiffs-respondents but in view of the Court the fact is that defendant-appellant had no valid title
or authority to possess property in dispute and, therefore, heavy onus lie upon it to show when it
got possession of disputed property and also that constructions were raised by him.

25. It is true that burden to prove case in order to seek relief initially lie upon plaintiff, but
onus continues to shift during course of proceedings when parties adduce evidence.

26. There is a distinction between burden of proof and onus of prove. It is well known and
well established.

27. Initial burden of proof, admittedly, would be on the plaintiff in view of Section 101 of
Indian Evidence Act, 1872 (hereinafter referred to as the "Act, 1872") which talks of burden of
proof, and says:

"Burden of proof.- Whoever desires any Court to give judgment as to any legal right or
liability dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of
proof lies on that person."

28. The burden of proving a fact rests on the party who substantially asserts affirmative of
issue and not upon the party who denies it; for a negative is usually incapable of proof. The
4 All. Bansh Raj Vs Raj Pat & Ors.
93
provision is based on the rule, ie incumbit probatio qui dicit, non qui negat. In Constantine Line
Vs. I S Corpn, (1941) 2 All England Report 165, Lord Maugham said;

"It is an ancient rule founded on consideration on good sense and should not be departed
from without strong reasons."

29. A person who asserts a particular fact has to prove the same. Until such burden is
discharged, the other party is not required to be called upon to prove his case. Whoever desires a
Court to give judgment, dependent on the existence of facts which he asserts, must prove that those
facts exist. The distinction between "burden of proof" and "onus" is that the former lies upon the
plaintiff and never shifts but the "onus" shifts. Shifting of onus is a continuous process, in the
evaluation of evidence. For example, in a suit for possession, based on title, once the plaintiff is
able to create a high degree of probability so as to shift onus on the defendant, it is then for the
defendant to discharge his onus and in absence of such discharge by defendant, burden of proof
lying on plaintiff shall be held to have been discharged so as to amount to proof of plaintiff's title.

30. The above distinction between "burden of proof" and "onus" of proof has been explained
in A.Raghavamma Vs. A. Chenchamma, AIR 1964 SC 136, followed in R.V.E. Venkatachala
Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple & Anr., (2003) 8 SCC 752.

31. In Anil Rishi Vs. Gurbaksh Singh AIR 2006 SC 1971, Apex Court in para 9 and 11 of
the judgment said:

"9. In terms of the said provision, the burden of proving the fact rests on the party who
substantially asserts the affirmative issues and not the party who denies it. The said rule may not be
universal in its application and there may be exception thereto. The learned trial Court and the
High Court proceeded on the basis that the defendant was in a dominating position and there had
been a fiduciary relationship between the parties. The appellant in his written statement denied and
disputed the said averments made in the plaint."

"11. The fact that the defendant was in a dominant position must, thus, be proved by the
plaintiff at the first instance."

32. Pleading is not evidence, far less proof. Issues are raised on the basis of pleadings. Thus,
ordinarily, the burden of proof would be on the party who asserts the affirmative of issue and it
rests, after evidence is gone into, upon the party against whom, at the time the question arises,
judgment would be given, if no further evidence were to be adduced by either side. It is in these
circumstances, in Anil Rishi Vs. Gurbaksh Singh (supra) the Court observed that party who was
in dominant position must prove the fact. On this aspect I find further support from the decision in
Krishna Mohan Kul Vs. Pratima Maity AIR 2003 SC 4351, wherein the Court held:

"The onus to prove the validity of the deed of settlement was on the defendant No. 1.
When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the
94 INDIAN LAW REPORTS ALLAHABAD SERIES
burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is
in a fiduciary relationship with another and the latter is in a position of active confidence the
burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in
the dominating position, he has to prove that there was fair play in the transaction and that the
apparent is the real, in other words that the transaction is genuine and bona fide. In such a case
the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to
say, the party who is in a position of active confidence. A person standing in a fiduciary relation to
another has a duty to protect the interest given to his care and the Court watches with jealously all
transactions between such persons so that the protector may not use his influence or the confidence
to his advantage. When the party complaining shows such relation the law presumes everything
against the transaction and the onus is cast upon the person holding the position of confidence or
trust to show that the transaction is perfectly fair and reasonable, that no advantage has been
taken of his position."

33. In recording the above opinion, Court relied on Section 111 of Act, 1872 and held that one
has to distinguish between a burden of proof and onus of proof. The right to begin follows onus
probandi. It assumes importance in the early stage of a case. The question of onus of proof has
greater force, where the question is which party is to begin. Burden of proof is used in various ways
and, in particular, three, namely, (i) to indicate the duty of bringing forward evidence in support of
a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all
counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others.
The elementary rule in Section 101 is inflexible. In terms of Section 102, the initial onus is always
on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief,
the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the
plaintiff to the relief.

34. In R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple
and another (2004) 6 JT (SC) 442, Court in para 29 said:

"In a suit for recovery of possession based on title it is for the plaintiff to prove his title
and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over
the suit property and for the possession to be restored to him. However, as held in A. Raghavamma
v. A. Chenchamma there is an essential distinction between burden of proof and onus of proof:
burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof
shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our
opinion, in a suit for possession based on title once the plaintiff has been able to create a high
degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his
onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been
discharged so as to amount to proof of the plaintiff's title." (Emphasis added)

35. In the present case, initial burden was discharged by plaintiffs-respondents by adducing
evidence of Ex-Zamindar, Ram Iqbal Singh, who also proved that plaintiffs-respondents were in
possession of disputed property even before execution of sale deed dated 10.01.1973 and also that
4 All. Bansh Raj Vs Raj Pat & Ors.
95
defendant-appellant was not in possession till date of execution of sale deed. Thereafter onus
shifted upon defendant-appellant to adduce credible evidence to prove their case which they have
failed. The LAC, therefore, has recorded its finding in favour of plaintiffs-respondents and, in my
view, correctly.

36. The judgments cited by appellant, therefore, does not help the appellant in any manner.
The decision in Bondar Singh and others Vs. Nihal Singh and others (supra) was a case where
there was an issue of transfer of title by adverse possession. Here I do not find that any case of
adverse possession has been pleaded and proved by defendant-appellant in any manner.

37. The issue of adverse possession cannot be conceived by a Court in absence of specific
pleadings confirming requisites of plea of adverse possession followed by furnishing of credible
evidence in support of such pleading. Learned counsel for appellant could not show its pleadings in
written statement to claim title on the basis of adverse possession. On the contrary, it was pleaded
by defendant-appellant in written statement that on request of villagers, defendant no. 1 got
permission from the then Zamindar and took possession of disputed land and thereafter raised
disputed construction thereupon. Thus the case set up appellant is of permissive possession.

38. In order to attract plea of adverse possession the law is now well settled and it may be
appropriate to recapitulate the same in the light of various authorities on the subject hereunder.

39. The principle of adverse possession though had been recognized in India since the time
ancient, but for the purpose of present case it would be appropriate to go in the past only since
when the codified law has been enacted, i.e., in British India, by the then rulers. The statute, which
is now operating the field, has been enacted, after enforcement and adoption of Constitution, by
people of India i.e. after independence.

40. The principle of adverse possession and its consequences wherever attracted, has been
recognized in the statute dealing with limitation. The first codified statute dealing with limitation
came to be enacted in 1840. The Act 14 of 1840 in fact was an enactment applicable in England but
it was extended to the territory of Indian continent which was under the reign of East India
Company, by an authority of Privy Council in The East India Company Vs. Oditchurn Paul
1849 (Cases in the Privy Council on Appeal from the East Indies) 43.

41. For British Indian Territory the first codified statute dealing with limitation was Act No.
14 of 1959. It however provided limitation of suits only. It did not contain any recognition of a
right of immoveable property by prescription. It was, however, modified by Act 9 of 1871 and, for
the first time, gave some recognition to the doctrine of prescription, i.e., the doctrine of extinctive
prescription as to land and hereditary offices and of positive prescription as to easement. It lived
short and was replaced by Act 15 of 1877 which extended principle of extinctive prescription to
moveable property and the principle of positive or acquisitive prescription to profits a prendre.
96 INDIAN LAW REPORTS ALLAHABAD SERIES

42. The Law of Prescription prescribes the period at the expiry of which not only the judicial
remedy is barred but a substantive right is acquired or extinguished. A prescription, by which a
right is acquired, is called an "acquisitive prescription". A prescription by which a right is
extinguished is called "extinctive prescription". The distinction between the two is not of much
practical importance or substance. The extinction of right of one party is often the mode of
acquiring it by another. The right extinguished is virtually transferred to the person who claims it
by prescription. Prescription implies with the thing prescribed for is the property of another and
that it is enjoyed adversely to that other. In this respect it must be distinguished from acquisition by
mere occupation as in the case of res nullius. The acquisition in such cases does not depend upon
occupation for any particular length of time.

43. Doctrine of limitation and prescription is based upon two broad considerations. The first,
there is a presumption that a right not exercised for a long time is non-existent. Where a person has
not been in possession of a particular property for a long time, the presumption is that he is not the
owner thereof. The reason is that owners are usually possessors and possessors are usually owners.
Possession being normally evidence of ownership, the longer the possession has continued the
greater is its evidentiary value. The legislature, it appears, therefore, thought it proper to confer
upon such evidence of possession for a particular time, a conclusive force. Lapse of time is
recognised as creative and destructive of right instead of merely an evidence for and against their
existence. The other consideration on which the doctrine of limitation and prescription may be said
to be based is that title to property and matters of right in general should not be in a state of
constant uncertainty, doubt and suspense. It would not be in the interest of public at large. The
object of the statute of limitation is preventive and not creative but in a matter covered by the
principle of "adverse possession" it also creates. It interposes a statutory bar after a certain period
and gives a quietus to suits to enforce an existing right.

44. Act 15 of 1877 was replaced by Limitation Act, 1908 (hereinafter referred to as the "LA
1908") and ultimately the Limitation Act, 1963 (hereinafter referred to as the "LA 1963") is
holding the field repealing all earlier enactments. The provision dealing with extinction of title after
expiry of a particular period due to hostile possession of another and transfer of title to such
persons in possession is recognized in Section 28 of LA 1908 and similar provision is contained in
Section 27 of LA 1963.

45. The doctrine of limitation is founded on considerations of public policy and expediency. It
does not give a right where there exist none, but to impose a bar after a certain period to the remedy
for enforcing an existing right. The object is to compel litigants to be diligent for seeking remedies
in Courts of law if there is any infringement of their right and to prevent and prohibit stale claims.
It fixes a life span for remedy for redressal of the legal injury, if suffered, but not to continue such
remedy for an immemorial length of time. Rules of limitation do not destroy rights of the parties
and do not create substantive rights if none existed already. However, there is one exception i.e.
Section 28 of L.A. 1908 (Section 27 of LA 1963), which provides that at the determination of
period prescribed for instituting suit for possession of any property, his right to such property shall
stand extinguished and the person in possession, after expiry of the such period, will stand
4 All. Bansh Raj Vs Raj Pat & Ors.
97
conferred title. The law of limitation is enshrined in the maxim "interest reipublicae ut sit finis
litium" (it is for the general welfare that a period be part to litigation).

46. Mere expiry of limitation could have extinguished remedy but the principle embodied in
Section 28 of LA 1908 (Section 27 of LA 1963), extinguishes the right also and thereby makes the
said general principle inapplicable. Once the right of getting possession extinguished it cannot be
revived by entering into possession again [See Salamat Raj Vs. Nur Mohamed Khan (1934) ILR
9 Lucknow 475; Ram Murti Vs. Puran Singh AIR 1963 Punjab 393; Nanhekhan Vs. Sanpat
AIR 1954 Hyd 45 (FB) and Bailochan Karan Vs. Bansat Kumari Naik 1999 (2) SCC 310].

47. Privy Council in Sundar Vs. Parbati, (1889) 12 All 51 agreed with the view of this court
that possession is a good title against all the world except the person who can show a better title.
By reason of his possession such person has an interest which can be sold or devised.

48. The limitation prescribed for adverse possession is not the limitation for maintainability of
suit. The former matures a right in a person on happening of certain events continued for a period
prescribed in Act, 1963. It is a consequence of principle of prescription. The later is the period
whereafter the remedy for redressal of a grievance is lost to a person. I would elaborate both these
aspects to make the two aspects beyond any possible confusion and misunderstanding.

49. To understand the concept of "adverse possession" it would be necessary to have a clear
idea about the concept of "possession" and "ownership" in respect of immovable property.

50. In Muslim law, a man in possession of property although by wrongful means has obvious
advantages over the possessor. The possessor is entitled to protection against the whole world
except the true owner. [The Principles of Mohammedan Jurisprudence (1911)].

51. In 'Ancient Indian Law' possession was nothing but a legal contrivance based on the
considerations of dharma. Use and enjoyment of property was restricted and controlled by the holy
scriptures. In old Hindu law possession was of two kinds. (a) with title; and (b) without title where
possession continued for three generations. Enough importance, however, was given to title
(agama) to prove possession. Katyayana said, "there can be no branches without root, and
possession is the branch".

52. In Modern era, various jurists have dealt with the term "possession" being an important
aspect of individual's rights.

53. "Ihering" defines possession, "whenever a person looks like an owner in relation to a
thing he has possession, unless possession is denied to him by rules of law based on convenience".
Apparently this definition does not give any explicit idea on the subject. It only states that the
concept of possession is an ever changing concept having different meaning for different purposes
and different frames of law.
98 INDIAN LAW REPORTS ALLAHABAD SERIES

54. "Pollock" says, "In common speech a man is said to be in possession of anything of which
he has the apparent control or from the use of which he has the apparent powers of excluding
others". The stress laid by Pollock on possession is not on animus but on de facto control.

55. "Savigny" defines possession, "intention coupled with physical power to exclude others
from the use of material object." Apparently this definition involves both the elements namely,
corpus possesssion is and animus domini.

56. The German Jurist ''Savigny' laid down that all property is founded on adverse possession
ripened by prescription. The concept of ownership accordingly as observed by him involve three
elements-Possession, Adverseness of Possession, (that is a holding not permissive or subordinate,
but exclusive against the world), and Prescription, or a period of time during which the Adverse
Possession has uninterruptedly continued.

57. "Holmes" opined that possession is a conception which is only less important than
contract.

58. According to Salmond on "Jurisprudence", 12th Edition (1966) (First Edition published
in 1902) by P.J. Fitzgerald, Indian Economy Reprint 2006 published by Universal Law Publishing
Co. Pvt. Ltd.