JUDGMENT
R.K. Dash, J.
1.This appeal is by the plaintiff against the reversing judgment of the learned Subordinate Judge, Rairangpur in Title Appeal No. 1 of 1984. The suit was one for declaration of right, title and interest, recovery of possession and for permanent injunction.
2. The plaintiff’s case, in brief, is this : The suit land described in Schedule “A” of the plaint originally belonged to the State. In the year 1984 the Government settled the suit land in his favour and accordingly in the revenue records the same has been recorded in his name under Khata No. 114 of village Pandarsila. After acquisition, the plaintiff made it suitable for cultivation and had been possessing through his brother since no being a railway employee, had been staying outside. Taking advantage of his absence. the defendant illegally trespassed upon a portion of the sun land as per schedule “B” of the plaint in the year 1979. This led the plaintiff to file the present suit claiming reliefs as aforesaid.
3. The case of the defendants, on the other hand, is that as the sun land adjoins their own land, their father having reclaimed it possessed for more than 38 years continuously, peaceably, without any interruption and as of right and after him they have been possessing in the same manner. They, therefore urged that in view of their long possession they have acquired title by adverse possession. They denied of having any knowledge of settlement of the suit land by the Government in 1964 in favour of the plaintiff as asserted in the plaint.
4. On the above pleadings learned Munsif framed seven issues and on conclusion of the trial held the plaintiff to have title to the suit land. So far as defendants claim of adverse possession is concerned, he on assessment of the evidence negatived the same and consequently deserved the suit. On appeal by the defendants, the learned Subordinate Judge held that since the plaintiff’s title to the suit land has been challenged, Article 65 of the Limitation Act, 1963 (hereinafter referred to as “new Act”) has no application and so plaintiff should have proved his possession within twelve years of the suit and the same having not been done, he is not entitled to the reliefs as claimed.” Having so held, he allowed the appeal and dismissed the suit.
5. The substantial question of law formulated by the Court at the time of admission of the appeal is whether the lower appellate Court was right in holding that the suit does not come within the purview, of article 65 of the new Act.
6. It may be reiterated that the suit land according to the plaintiff originally belonged to the State which was settled with him by the Government in 1954. In-support of his such claim he proved the, Nakal Khatian (record-of-rights), Ext. 1 the genuiness of which was not challenged by the defendants either in the pleadings or in course of hearing of the suit. In that view of the matter. I would hold that title to She suit land remains with the plaintiff. This being my finding, the next question that arises for consideration is whether the defendants have acquired title by prescription as claimed.
7. The plaintiff’s suit for possession being based on title, is governed by article 65 of the new Act. The new Act divides suits for possession into two categories : (1) suits for possession based on prior possession and subsequent dispossession, and (2) suits for possession based on title. The distinction is clear. Where the suit for possession is based on title the plaintiff need not show his possession within twelve years of the suit. He is only required to prove his title and on his doing so, the burden shifts to the defendant to prove that his possession has been adverse the requisite period of twelve years, (see Baruna Giri : AIR 1983 Ori. 107, and Jagabandhu Naik v. Gouri v. Rajkishore Bandha : AIR 1985 Ori. 126).
8. The ordinary classical requirement of adverse possession is that it should be nec vi noc clam nec. precasio, that is, it should be peaceful open and continuous. The possession required must be adequate in continuity. in publicity and in extent to show that it is possession adverse to’ the competitor. It is settled law that title ordinarily carries with it the presumption of possession and when question arises as to who was in possession the presumption is that the true owner was in such possession the presumption is that the true owner was in. such possession. In other words possession follows title. So one who sets of title by adverse possession heavy onus lies upon him to prove the same. In the case of Radhamoni Devi v. Collector, Khulna. (1900) ILR 27 Calcutta 943 (PC) Lord Robertson expressed the principle in the following words.
“It is necessary to remember that the onus is on the appellant and that what she has to make out is possession adverse to be competitor. x x x But the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor, x. x. x.”
The same principle was reiterated by the Privy council in Mt. Allah Rakha v. Shah Mohammed Abdul Rahim: AIR 1934 PC 77. In that case the Court observed :
“There is no doubt that the title to the lands was in the plaintiff. and the onus was on the appellants defendants to prove the adverse possession relied on.”
9. The above being the position of law and in view of the fact that title to the suit land in the present case has been established by the plaintiff it is for the defendants to prove that they have acquired title by adverse possession. The learned trial Court on a thorough scrutiny of the evidence negatived the aforesaid claim of the defendants and consequently decreed the plaintiff’s suit; but the learned first appellate Court on an erroneous proposition of law upset the trial Court’s decree and dismissed the suit.
10. In the result, the appeal is allowed and judgment and decree of the first appellate Court are set aside. Resultantly, trial Court’s judgment and decree are affirmed. In the circumstances, there shall be no order as to costs.