JUDGMENT Ganga Nath, J.
1. This is an appeal under the Letters Patent by the defendant against the decision of a learned single Judge of this Court. It arises out of a suit brought against him by the plaintiff respondent for partition and separate possession over his share in the property described in the plaint, and for the closing of some windows and the opening of a door. The plaintiff claimed, in the alternative, that if it be found that the partition has already taken place, he may be awarded possession over the specific share owned by him. The defendant contended that the property had already been partitioned and that the suit was time-barred. The trial Court found that the house of the plaintiff was separate from the rest of the house, that the suit was barred by Article 142, Limitation Act, as the plaintiff had not been in possession within 12 years of the suit and that it was not barred by Order 2, Rule 2, Civil P.C. On appeal, the lower Court went into the question whether the suit was barred by Order 2, Rule 2, Civil P.C., and found that it was barred and dismissed the suit. On appeal, this Court found that the suit was not barred by Order 2, Rule 2. It remanded the case for rehearing by the lower Court. The lower Court reheard it and found that the suit was not barred by Article 14.2, and gave a decree for relief (e) and in respect of the main door of the house. The decree of the lower Court was confirmed by the learned single Judge.
2. The only point that has been urged by the learned Counsel for the appellant is that the suit is barred by Article 142, Limitation Act. lie has contended that the plaintiff has failed to prove any specific acts of his possession within 12 years, and the suit therefore must be dismissed under Article 142. lie has relied on Bihdhyachal Chand v. Ram Gharib Chand (1934) 21 A.I.R. All. 993 and several other cases. These decisions are not relevant to the present case. The plaintiff has not come in this suit with the allegation that he has been dispossessed at any time by the defendant. On the other hand, he alleges that he has been in joint possession with the defendant over the property in suit. The decisions relied on by the learned Counsel deal with the cases where the plaintiff came with an admission of his dispossession at the time of his suit and an allegation that he had been dispossessed by the defendant within 12 years; and where it was found that the plaintiff had not been in possession within 12 years of the suit. The cases, where the controversy about possession is between only two parties, namely the plaintiff and defendant, and where the plaintiff admits the defendant's possession, but alleges that he was dispossessed within 12 years of the suit by the defendant and the defendant contends that he has been in possession for more than 12 years and the suit is time barred, stand on entirely a different footing. There, if one party is not in possession, the other party is or must be held to be in possession. So in such cases, if the plaintiff fails to prove that he was dispossessed within 12 years, the inevitable inference and finding must be that his dispossession took place and the defendant has been in possession for more than 12 years before the suit. It is in such cases that the plaintiff cannot be allowed to say that if he has failed to prove his possession by evidence, his possession must be presumed, as the title is with him, because in spite of his title the other party is found to be in possession. The presumption that possession follows title is rebutted by the fact that the defendant is found in possession.
3. It was further contended by the learned Counsel for the appellant that the case must be decided on the plaintiff's evidence alone and the defendant's evidence should not be looked at because the onus was on the plaintiff. This argument is not sound. There can be no question of any decision on the basis of onus of proof where both the parties produce evidence. It is the duty of the Court to arrive at a correct finding on the whole evidence before it. If there is any lacuna in the plaintiff's evidence but; it is supplied by the defendant's evidence, it would, be not only unfair, but would lead to injustice if the Court were to depend on the plaintiff's evidence only where the onus lay on him. It is however open to the defendant not to lead any evidence where the onus is upon the plaintiff but, after having gone into evidence, he cannot ask the Court not to look at and act on it. It is his evidence and he is bound by it. If the defendant does not produce any evidence and the plaintiff fails to discharge the burden that lay on him, his suit would fail, as there is nothing else on which the Court may record any finding.
4. A property cannot remain without an owner and without being in possession of somebody. The possession may be actual or constructive. In case of actual possession there can be no difficulty as to who is in possession. But if no one is in actual pos-session, it must be deemed to be in constructive TO possession of its owner, and it is in such a case that the legal presumption, that possession follows title, applies.
5. It is not the law that if a land is left (vacant and no other person is in possession, the plaintiff must fail unless he shows actual possession, that is, by positive acts jot user and enjoyment within 12 years of the suit. The land may be incapable of actual enjoyment as in the case of diluvion by a river. In such a case, if the plaintiff shows his possession down to the period of diluvion, his possession will continue so long as the land continues to be submerged. Mere absence of possession of the rightful lowner is not sufficient to defeat his title. His title cannot be defeated unless some other person or successive persons has or have boon in possession thereof for a continuous period of 12 years. It is necessary that there must have been adverse possession in order to bring the statute into operation. It does not run unless there is a person in whose favour it can run. An owner is not barred by simple non-user for any length of time, so long as no other person has been in possession. The owner remains in point of law in possession till he is dispossessed by another person obtaining actual (possession. "Discontinuance" in Article 142, (Limitation Act, means that a person in possession goes out and is followed into possession by another person, because unless he is so followed, he will in law be deemed to continue in possession and therefore there will be no discontinuance. In M' Donnell v. M' Kinty (1847) 10 Ir. L.R. 514 Blackburne C.J. observed at page 526:
The word 'discontinuance' I understand to mean :in abandonment of possession by one person, followed by the actual possession of another person. This, I think, must beats meaning; for, if no one succeed to the possession vacated or abandoned, there could be no one in whose favour or for whose protection the Act could operate. To constitute discontinuance) there must be both dereliction by the person who has the right, and actual possession, whether adverse or not, to be protected... In confirmation of these remarks, I may here refer to all the authorities which have been cited, and which prove, if proof was required, that actual possession is the object of the statute, and that to apply its provisions to any other case would be to violate its plain meaning and policy.
6. In (1854) 23 L.J. Ex. 194 Baron M' Donnell v. M' Kinty (1847) 10 Ir. L.R. 514 Parke Observed page 194:
We have not the slightest doubt that the title of the grantees of the mines is not barred in this case under the 3 & 4 Will. IV, c. 27, Section 3, for we are clearly of opinion that that statute applies not to cases of want of actual possession by the plaintiff, but to cases where he has been out of it, and another in possession for the prescribed time;... we entirely concur in the judgment of the Chief Justice Blackburne in M' Donnell v. M' Kinty (1847) 10 Ir. L.R. 514 and the principle upon which the decision is founded.
7. This observation of Baron Parke was approved of at p. 535 by their Lordships of the Privy Council in Secretary of State v. Krishnamoni Gupta (1902) 29 Cal. 518 where it was observed:
In Trustees Executors and Agency Co. v. Short (1888) 13 A.C. 793 it was laid down by this Board that if a person enters upon the land of another and holds possession for a time, and then without having acquired title under the statute abandons possession, rightful owner on the abandonment is in the same position in all respects as he was before the intrusion took place.' And the opinion of Parke B. is there quoted that there must be both absence of possession by the person who has the right and actual possession by another to bring the case within the statute.
8. The finding which has been arrived at on the evidence before it by the lower Court is that neither party can establish any possession over the house until the respondent admittedly fastened up the front door. As I have said it is not apparent precisely when he did this; the plaintiff's statement was that it was in 1924, but it cannot have been prior to 1921 as the house was still open then for the house of the labourers working on the mosque.
9. It has also been found by the lower Court that the property was in ruins, and was not capable of any act of physical possession over it. The defendant's possession in the present case dates back to the time (1921) when he for the first time locked the outer door. Before that the property lay in ruins, and no act of physical possession was done by the plaintiff. Though neither the plaintiff nor his predecessor was in actual physical possession over the property in dispute before 1921 it must be deemed to have continued in their constructive possession as no one else was in possession. It was only in 1921 that the defendant step-pod in and locked the outer door and dispossessed the plaintiff for the first time. Whether Article 142 or Article 144, Limitation Act, be applied to the present case, the discontinuance of the possession of the plaintiff occurred only in the year 1921, that is within 12 years of the suit. The suit was ill ere fore evidently not time barred. There in no force in this appeal. It is therefore ordered that it be dismissed with costs.