LORD GUEST:
In order to maintain an action for trespass the respondent must have been in possession at the date of the appellant's entry on the land in 1948. This is very largely a question of fact upon which the Board do not have the benefit of much evidence. Nor do they have the assistance of the courts below. The reason is that at the stage when evidence was being led and the appeal being heard the parties and the court were concentrating on the question of title and the question of possession was not closely examined.
The appellant maintained that there was not sufficient evidence to establish that the respondent was in possession at the critical period. It was argued, first, that assuming she was in possession before the 26th October, 1940, the date of the Ordinance, her possession was determined either under section 2(l) or section 5(4) of the Ordinance. So far as section 2(l) is concerned, this no doubt determined her right to possession, but did not affect the factual aspect of …