व्यवहारमयूख (नीलकण्ठ भट्ट - पश्चिमी भारत की हिन्दू न्याय-संहिता एवं व्यवहार कोष)

S II 2 3-4 POSSESSION 20
M p 21 l. 21-p 22 l 10 ]
As to what the same author (Nārada p 68. v. 91) says
That which has been enjoyed even unjustly by the father and three
ancestors (of a person) cannot be recovered back (from that person)
since it has descended successively through three generations,
*it is to be interpreted to mean 'what has been enjoyed by three genera-
tions (of the present holder) including the father even without title and
even unjustly cannot be recovered back (from the present holder), much
less can it be recovered back when it is impossible to conclude that there is
absence of title ¹
'As to the text of Hārīta,
What has been enjoyed by three ancestors without any title whatever
cannot be recovered (from the present holder) since it has descended
through three generations
it is to be explained as 'without a title that can be easily perceived and
not as without even the semblance (or appearance) of a title'. As for the
text of Yājñavalkya (II 28),
That man, who first acquired a thing, should prove the source of his title
when he is proceeded against; his son or son's son need not (prove title),
in their case possession has more weight,
it means that only the first acquirer, if he cannot prove his title, is to be
fined (for unlawfully usurping possession) and not his son and grandson, but
it does not mean that in their case they succeed in their object (viz re-
taining the thing on the ground of possession) Hārīta says to a similar effect
That man however, who first acquires a thing is liable to be fined if
he cannot make out a title, and not his son or son's son; but both (the
latter) are liable to be deprived (by the court) of the thing possessed
like the acquirer himself ²
Yājñavalkya (II 29) says
If a person who has been proceeded against dies, his heir (or repre-
sentative) must establish title (as much as the deceased) In such a case
possession without title would not be a (valid) plea
1 The object of the verse is not to prescribe the impossibility of recovering after three
generations what is wrongly seized, but the object of it is to prescribe that possession for
more than three generations confers ownership when it is uncertain whether it originated in
no title The words 'for three generations' stand for asmārtakāla (time beyond human
memory)
2 The idea is that the original acquirer is liable to fine if he cannot prove his title
His son and grandson, if they cannot prove title, are not liable to be fined, but if they
cannot prove title in their ancestor and in themselves, they are liable to lose the thing
they enjoy, since their possession has not ripened into ownership by enjoyment for three
generations

• P 82 (text)