Sambasiva Mudaliar vs The Secretary of State for India in Council

Seshagiri Aiyar, J.—It is with some hesitation that I agree in the conclusion at which my learned colleague has arrived. The facts found may

be thus summarised; (1) The property in dispute is a public pathway; (2) The plaintiff built the projection in front of the house between the years

1868 and 1888 and has been in possession. There is no evidence as to any acts of possession by the plaintiff or the Government prior to 1868. On

these findings the courts below have come to the conclusion that the Government have a subsisting title. The decided cases lay down that where a

private person proves that he has been in possession for over 12 years, the onus is on the Government to show that they had some possession

within 60 years of the suit. I think there are two propositions involved in this--one, that from the fact of possession for a long time a presumption

arises that the possessor was in enjoyment for a longer period than is actually covered by the evidence let in by him, and the other, that by way of

corollary from the first, the onus is cast on the Government to show that they were in possession within the sixty years which they are entitled to

under Article 149. I must take it that the finding that plaintiff was in possession between 1868 to 1898 must be read as meaning that his possession

originated only in 1868. Even in this view, the Government has yet to establish that they were in possession within 60 years. It is possible that as

against the Government some other person was in possession before 1868. That is the reason why the Government are required to prove a

subsisting title. What to a certain extent, has reconciled me to the view that my learned colleague has taken is the fact that the property in question

is a public pathway, and the presumption is that the public have been using every portion of it unless some one had encroached upon it and

obstructed their user. If that presumption is given effect to, it must follow that prior to 1868, the public as beneficiaries of the Government who

have set apart the property for their use has been in enjoyment; and that it was only in 1868 that this enjoyment was interfered with. It is mainly

with reference to the peculiar nature of the property that I distinguish this case from Kutheperumal Rajah y. The Secretary of State for India ILR

(1907) M. 245 Krishna Aiyar v. The Secretary of State for India ILR (1910) M. 173 20 M.L.J. 71 Venkatrama Aiyar v. The Secretary of State

for India ILR (1910) M 362 : 20 M.L.J. 74 and Narayana Pillai Vs. The Secretary of State for India in Council,

The Second Appeal must be dismissed with costs.

Kumarasami Sastri, J.

The plaintiff is the appellant. He sued to recover possession of a portion of the koradu alleged by him to have been taken possession of and

wrongfully demolished by the Government and for damages. Both the lower Courts have found that the portion of the koradu claimed by plaintiff,

and demolished by Government was part of a public street and was encroached upon subsequent to the survey in the year 1868. The appellant

contends that the finding of both courts is erroneous and based on insufficient evidence, but I see no reason for holding that the evidence on record

is insufficient or that there has been any mis-appreciation of evidence.

It seems to me that on the findings that there was an encroachment and that it was not prior to the year 1868 the suit was rightly dismissed.

Under Madras Act III of 1905 all public roads and streets are deemed to be the property of the Government and it is not disputed before us that

the case should be treated on the footing that the street is Government property. The contention of the appellant''s vakil is that as the appellant has

on the findings of both courts proved possession for only 40 years it should be presumed that possession was with him prior to that and that it lay

on the Government to show that they were in possession at any time within 60 years prior to the date of suit. Reliance has been placed on Krishna

Aiyar v. The Secretary of State for India ILR (1910) M. 173 : 20 M.L.J. 71 Venhatarama Aiyar v. The Secretary of State for India in Council

ILR (1910) M. 362 : 20 M.L.J. 74 and Narayana Pillai Vs. The Secretary of State for India in Council, . I do not think that these cases lay down

an inflexible rule that in a suit against the Government for recovery of possession of Immovable property and damages for trespass, the plaintiff is

entitled to succeed merely by showing possession for over twelve years before suit unless the Government can show possession or title within sixty

years. All that they decide is that when possession whose origin cannot be definitely fixed has been proved against the Government for a long

series of years (not less than twelve) it is reasonable to presume that such possession commenced at a period over sixty years ago so as to throw

on the Government the onus of showing either a subsisting title or possession within sixty years.

In the present case the property encroached upon was a public street at the time of the encroachment and user by the public till the date of the

encroachment will be equivalent to possession by the Government. I find nothing which would justify the inference that any body except the

Government was in possession prior to the year 1868, the earliest possible year when the appellant or his predecessors in title could have got into

possession.

The appeal fails and is dismissed with costs.