KRISHNA SASTRI Vs. SINGARAVELU MUDALIAR

JUDGEMENT

(1.) The Subordinate Judge has found that plaintiffs were in possession of the suit lands for more than 60 years before 1911, but objection is taken by appellants that there is no evidence to support this finding. The Subordinate Judge relies on oral statements of witnesses that plaintiffs family were in possession for a very long period, but except for the statement of plaintiffs witness No. 1, that his family was in possession for 150 years, a fact which is certainly not within his personal knowledge, there is no evidence which fixes the date of possession as early as 1851, and this is essential in order to prove adverse possession for 60 years. It is not sufficient to prove possession for a long period but, as pointed out by the Privy Council in Secretary of State for India V/s. Chellikani Rama Rao (1916) ILR 39 M 617 : 31 MLJ 324 (PC), possession for the whole period of 60 years must be affirmatively proved. In the present case there is no such evidence, but only evidence of long possession which the Subordinate Judge has held to be for ever 60 years on the general probabilities. This he is not justified in doing and we cannot therefore accept his finding. The burden of proof was on plaintiffs and they have failed to discharge it.

(2.) The appeals must therefore be allowed and the suits dismissed with costs throughout, including the costs of the guardian of the 6 respondent in both second appeals.

(3.) These second appeals again came on for orders on 19 December, 1924, on account of the 5 respondent not being served with notice, the Court delivered the following