P L D 1954 Lahore 269 (PLP)

AKHLAQUE HUSSAIN, J.‑This is a regular second appeal arising out of a suit for possession by the plaintiff‑appellant. The plaintiff's case was that the plot in dispute was originally owned by one Ranjah, the ancestor of the parties, and that he and his father and grandfather, who was a son of Ranjah, had been in exclusive possession of it since the last 60 or 70 years until the defendant wrongfully dispossessed him on the 17th of February 1951 with the help of police. He further alleged that another plot belonging to Ranjah has similarly been in possession of the defendant, his father and grandfather Gullan, who was one of the sons of the said Ranjah. The learned trial Court framed the following three issues :‑

1. Did the plaintiff's ancestors acquire the area in suit exclusively on partition with their co‑sharers ?

2. Was the plaintiff' ousted from the area in suit within 12 years, of the institution of the suit ?

3. Relief. The first issue was found against the plaintiff by the first Court ; but the second issue was found in his favour and, therefore, the suit was decreed: On appeal the learned District judge while affirming the finding of the learned trial Court on the first issue, decided the second issue against the plaintiff and dismissed the suit by his judgment and decree dated the 27th of June 1952. Aggrieved by the decree of the lower Appellate `Court, the plaintiff has come up to this Court in second appeal. Learned counsel for the appellant has not challenged before me the finding of the two lower Courts on the first issue but has contended that the finding on the second issue, which is admittedly one of fact, is legally erroneous because the learned District judge has wrongly ignored the report of the Local Commissioner, Exhibit L. C/1. while discussing the evidence under the second issue. This contention appears to be sound. While it is true that the Commissioner's report suffers from numerous legal defects for which reason it cannot be accepted as a legal piece of evidence in the case, the learned District judge has entirely overlooked the fact that on the 3rd of March 1952 both the parties made a statement before the first Court accepting the correctness of that report. Under the circumstances, the report must be treated as a joint admission by both the parties by which they are bound. I am, however, of the opinion that the Commissioner's report does not help the plaintiff‑appellant and even if it had been properly considered by the learned lower Appellate Court, it would not have altered its finding on the second issue. The learned Commissioner found that originally the defendant was in possession of the plot in suit from about the year 1938 and had built a kotha thereon ; that thereafter he abandoned it for some other place ; that some time afterward he returned, in or about the year 1950, and built the present kotha : that during the period that the defendant was absent from the plot the plaintiff had taken possession of it ; and that the plaintiff was again in possession about the time of the dispute. In the first place, the report of the Commissioner, accepted by the parties as correct nearly four months after the defendant had closed his evidence, discloses the state of affairs which is quite contrary to the allegations on which the plaintiff came to Court; and, as has been rightly pointed out by the learned District Judge, allowing the plaintiff to succeed on the basis of the findings of the Commissioner would be tantamount to permitting him to set-up a new case at a very late stage. Secondly, the Commissioners report proves that it was the defendant who was originally in possession and after having left it for some time returned again to occupy it. A plaintiff is allowed to succeed on the basis of possession because possession raises a presumption of title. Both parties having been twice in possession of the plot in suit and the original possession having been that of the defendant, there is presumption against presumption ; and, A therefore, the plaintiff, in the circumstances of the present case, is not entitled to succeed on mere possession of short duration before the suit. In the 8th edition of his book on jurisprudence at page 293 Sir John Salmond lays down ; "A wrongful possessor has the right of an owner with respect to all persons except earlier possessors and except the true owner himself". That mere possession immediately before the suit, when counter‑balanced by previous possession' within limitation of the other party, will not at a sufficient ground for claiming possession is borne out by the following remarks of Park, J. in Doedem Handing v. Cooke (VII Bingham's Reports 346). "He (the plaintiff) has shown a presumptive title, arising out of twenty‑three years' possession. The defendant sets up a later possession of ten years. There is presumption against pre sumption, which throws the defendant upon establishing, if he can, a title of a higher description." Lastly, the Commissioner's report does not affect the finding of the learned lower Appellate Court that dispossession of the plaintiff by the defendant has not been proved. For the above reasons, I dismiss this appeal with costs. A. H. Appeal dismissed.