Decided on September 13,1869



- (1.) In this case the plaintiff sued to recover possession with mesne profits of a one-third share in certain land. A witness for the plaintiff proved that the plaintiff held possession of the one-third share of the land, and had been subsequently ousted by the defendant. The Judge says:--"This witness appears respectable, and his evidence alone is worthy of belief. I am, therefore, clear that plaintiff was in possession of his share in suit within twelve years before the alienation and suit." The Court of first instance arrived at a similar conclusion. It was objected, however, before this Court in special appeal that there was no sufficient legal evidence, and that the witness ought to have shown what he meant by possession, and not merely to have stated that the plaintiff was in possession. I do not think that I can add anything to what I said when the case was before me, and when I referred it to the Full Bench. No doubt, if a witness were to come into Court and say that the plaintiff was in possession of one-third of an estate, I should think it necessary to cross-examine him, and to ask him how he knew it. But in this case, there was no cross examination, and the Judge says that the defendants' pleader declined to cross-examine the witness. It appears to me that there was legal evidence on which the Court was justified in deciding in favor of the plaintiff's possession, and that the question must be answered to the effect that, when a witness says that a party is in possession, that, in point of law, is admissible evidence of the fact that such party was in possession.
(2.) It is admitted by the pleader for the appellant that this is the only point in the case. The appeal will, therefore, be dismissed with costs. Bayley, Francis Baring Kemp and Frederick Augusta Bernard Glover, JJ. Concurred. Mitter, J. As I was one of the Judges who took part in the decision of Ishan Chunder Behara v. Ram Lochun Behara 9 W.R. 79, I think it desirable to say a few words in explanation of the view which I had taken on that decision. There can be no doubt, I think, that a bare statement of a witness that A. B. was in possession, unaccompanied by any information as to his means of knowledge, or as to the materials upon which he came to that conclusion, would be, even if it were admissible in law, evidence of a most unsatisfactory character. But the question is, whether such a statement ought to be admitted in law as evidence. I confess that I am not even now without grave doubts on this point. If the word possession is understood in the sense of actual occupation,-- a fact directly cognizable by the senses,--there can be no doubt that the statement would be admissible; but if the word possession" is to be understood in the sense of what is called in legal phraseology constructive possession, as it was admitted by the pleader for the respondent himself, the witness must be considered to have been speaking not of a fact directly within his knowledge, but of a conclusion based upon facts, although the knowledge of those facts might have been actually derived from sensation, the primary source of all our knowledge. As, however, all my learned colleagues are of a different opinion, I should not think myself justified in differing from them on this point, particularly as I find that I am not in a position to cite any authorities in support of my view.;

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