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TMI Blog1927 (4) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... oth general and special and that the plaintiff had acquired no title to the land in suit by his purchase which was not a genuine transaction, that ever if the alleged purchase was a genuine one, the identity of the land in suit could not be established in the locale and that the plaintiff's vendor's title was extinguished when the lease to defendant 1 was cancelled in 1906. 2. A number of issues were framed and the first Court decided the case in favour of the plaintiff and decreed the suit with costs. On appeal to the District Court the learned District Judge held that the plaintiff's case was barred by limitation,, and hence he allowed the appeal and dismissed the suit. 3. The plaintiff has appealed to this Court. He has contended that the suit was not barred by limitation. The case which he-now seeks to make to avoid the bar of limitation is that the dispossession took place in 1908 when defendant 1 granted a lease to defendants 2 and 3. Up to that time he was in constructive possession, because he had title to the land and the land was virgin jungle and no one else was in possession. As there were no acts of possession exercised on the land possession is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at by the Court of appeal below are these : defendant 1 obtained from the Government a lease of some land in the Sunderbuns. He gave a permanent lease of some 100 bighas out of this land to one Kalachand in 1901. This land has been found to have been virgin jungle. Subsequently there was an order by the Government for resumption of this land for non-performance of certain terms of the lease granted to defendant 1. The land was not actually resumed, but a renewed lease was granted to defendant 1 in 1907. The effect of this has been held by the Subordinate Judge not to have interfered with the rights of Kalachand under the permanent lease granted to him by defendant 1. This has not been controverted by the District Judge on appeal. The position, therefore, appears to be this : that Kalachand continued to remain a lessee under the permanent lease granted to him by defendant 1. Then in 1908 defendant 1 granted a lease to defendants 2 and 3 of a certain area of land which is said to have comprised the lands which had previously been demised to Kalachand. This piece of land was also described as virgin jungle. It has been found that defendants 2 and 3 cleared the jungle and brought the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Now, where definite evidence of acts of possession is forthcoming there is no difference between the proof of possession in the case of jungle, waste or uncultivated lands and in that of cultivated lands. But whereas in the case of cultivated lands the plaintiff will fail if he does not prove his possession within LA years, in the case of jungle or waste land, if he proves his title, there is a presumption in his favour where, having regard to the nature of the land, possession cannot be expected to be proved by acts of actual user and enjoyment. If, however, the plaintiff asserts that he exercised acts of ownership upon the land and adduces evidence in support of such assertion he cannot, where such evidence is disbelieved by the Court, turn round and rely upon any presumption. 8. Here there is no question of any such presumption upon which the plaintiff, his to rely. The question depends upon the facts found that there was no person before 1908 who exercised any act of possession on the land in dispute as against the plaintiff. When there was no one who intruded on the land before 1908, plaintiff's vendor's possession cannot be said to have been disturbed. I am there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eference to the grant of a reclamation lease of certain land hold under Government in the Sunderbuns. It appears that defendant 1 obtained from Government a head lease on 26th July 1900. By the terms of that lease he was under obligation to see that steps were taken to bring part of the jungle land comprised therein into cultivation upon certain terms and conditions which I need not now specifically refer to Defendant 1 gave a permanent lease of 100 bighas out of his land to one Kalachand in 1901. Kalachand, it appears, took no steps at all to reclaim the land, but it is matter which the Court of first instance decided and on which, in my judgment, there is no contrary finding by the District Judge, that that lease given to Kalachand was a reality, that is to say it was not a transaction which the parties thereto never intended to have any effect. It was not entered into merely for the purpose of some convenient or fraudulent design, but was a reality in the sense that one party paid his money and the other party intended to part with his rights under the lease. Kalachand having got his lease took no steps to reclaim the 100 bighas of jungle which he had in that way acquired and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the word actively, clearing the land living on it, the plaintiff ought not to be allowed to make a case that up to 1908, when defendants 2 and 3 came on the land no one was in actual possession at all. He was also of opinion that that case would not be a good case under Article 142. 18. The main question is whether that contention if proved is a god answer to Article 14. In my opinion it is. In my opinion if the plaintiff shows that at a time when the right to possession of the land was with him it was jungle land, and no one else was in possession of it or interfering with it in any way contrary to his right, then he has done what is necessary to show that he was in the eye of the law in possession at the time. There is only one rule of law, but in its application there is some difference between land which is ready for use or cultivation, laid which is under water and incapable of any use, and land, such as jungle land. The plaintiff has always to show that he was in possession within 12 years of suit and it will not do for him to show that within 13 or 14 years be fore suit he was in possession of the land. But in the case of land which can not be availed of at all, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing on the land at all. The chief authority for that contention on the part of the respondents is the decision in the case of Rakhal Chandra Ghose v. Durgadas Samanta. Now, whether the plaintiff, should be allowed, to change his case or to fall back upon an alternative case depends upon the circumstances, upon the points at issue and the way in which he has pleaded. This is not one of those cases where it is perfectly certain that either the plaintiff or the defendant was in active possession. If you get land on the border of two estates it may be perfectly certain that one or other of the two proprietors used it sometimes. If the plaintiff adduces evidence that he was in the habit of sing it, and defendants adduce evidence that it was always used by them and the plaintiff's evidence is disbelieved, it may be a strange thing to allow the plaintiff to fall back upon the supposition that nobody was using it at all contrary to the case of both the parties. But here the defendants own admissions have to be looked to and the surrounding cirstances have to be looked to. In allowing the plaintiff to proceed upon the basis that no one was in active possession of this land in 1908 one i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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