Sen, J. - (1.)THIS suit was filed by the respondent for possession of the suit site which he alleged belonged to him and which according to him had been taken possession of by the defendant about October 1939, that is, about nine months prior to the date of the suit. The defendant denied the plaintiff's ownership and pleaded that she had become the owner by adverse possession. The trial Court found the alleged ownership of the plaintiff not proved and held that the defendant had proved her adverse possession for over twelve years. Accordingly, it dismissed the suit. The plaintiff appealed to the District Court, and the learned First Class Subordinate Judge with appellate powers who heard the appeal held that the plaintiff's title was proved and he further held that the defendant had not acquired title by adverse possession. Accordingly, he made a decree in favour of the plaintiff for possession, damages and mesne profits.
(2.)IT seems to me that the lower appellate Court ought to have raised the further issue as to whether the plaintiff had proved his possession within twelve years of the date of the suit. Merely because the plaintiff was found to have proved his title he was not entitled to possession. On the question of adverse possession, the lower appellate Court has found against the defendant, and it may perhaps be said that if the question of the plaintiff's possession had been raised, that Court would necessarily have found in the plaintiff's favour. But it is on the question of adverse possession that the present appellant has mainly relied in the present appeal. The lower appellate Court has purported to follow Framji Cursetji v. Goculdas Madhowji (1891) I. L. R. 16 Bom. 338. The question whether adverse possession has been proved is a mixed question of law and fact, and the important question that arises here is whether the circumstances of this case were such as to justify the application of the principle of Framji's case. IT seems to me that there are several circumstances distinguishing the present case from that case. There what was alleged as to the user for twenty years prior to the suit was user of the site as a place to store articles of furniture, etc. , and to throw rubbish upon. That site was next to an agiary belonging to the defendant who had been allowed originally to use a well situated on the land in dispute, the site being "about the size of a large room. " Farran J. , who first decided the case, found that the legal title to the land had been proved to be in the plaintiff but he also remarked that if Merwanji (presumably the owner of the site in dispute) had gone round the offensive corners of his estate at intervals "he would have seen nothing to arouse his suspicion. At the utmost he would have seen what one witness describes as rubbish thrown upon his land. " In those circumstances it was held that such user was insufficient to give a title to the land by adverse possession, for such was common in this country and excited no particular attention, being not intended to denote, or understood as denoting, a claim to the ownership of the land. That ease, again, was a suit for a declaration and not for possession. The present case, however, is for possession. The plaintiff has admitted the present possession of the defendant, though he has alleged that such possession commenced only nine months prior to the date of the suit. The site in dispute, again, is not adjacent to the defendant's site, there being an intervening chowk. Besides, the defendant has put several stumps for tethering cattle and manure pits therein and a hedge round it. As the plaintiff appears to have regarded these facts as sufficient to constitute the present possession of the defendant, it was for him to show that such possession commenced within a period of twelve years prior to the suit; and it seems to me that to a case of this nature the principle of Framji Cursetji v. Goculdas Madhowji does not apply. The trial Court has found that the plaintiff has led no independent evidence to show his possession for the statutory period, but that the defendant, who has herself said that she has been in possession since her marriage for the last sixteen years, is supported by two independent witnesses. In this state of the evidence, it seems clear that the defendant was rightly held to be in possession for over twelve years prior to the suit. This, however, is a point on which the lower appellate Court has arrived at no finding, and the ease might have been remanded to that Court for a finding on this point. But it seems to me that in this case the evidence being clear, it is open to me, under Section 103 of the Civil Procedure Code, to hold that the finding of the trial Court on this point was correct. The defendant is entitled to succeed on this finding. The appeal will, therefore, be allowed with costs in both the lower appellate Court and in this Court. The decree of the lower appellate Court will be set aside and that of the trial Court restored. .
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