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PETITIONER: KSHITISH CHANDRA BOSE

       Vs.

RESPONDENT: COMMISSIONER OF RANCHI

DATE OF JUDGMENT06/02/1981

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA VARADARAJAN, A. (J)

CITATION:  1981 AIR  707            1981 SCR  (2) 764  1981 SCC  (2) 103        1981 SCALE  (1)521

ACT:      Right to  assail,  in  an  appeal  against  the  second judgment of  the High  Court, the  correctness of  its first judgment, explained.      Law  relating   to  adverse  possession  and  title  by prescription, clarified.      Second appeal  before the  High Court, scope of section 100 Civil Procedure Code.

HEADNOTE:      Allowing  the   appeal  and   answering   against   the respondent municipality  both on  the question  of title and adverse possession, the Court. ^      HELD: 1. The order of remand by the High Court being an interlocutory  judgment   which  did   not   terminate   the proceedings, it  is open to the appellant to assail even the first judgment  of the High Court and if it is held that the first  judgment   was  legally   erroneous,  then   all  the subsequent proceedings,  namely, the  order of  remand,  the order  passed  after  remand,  the  appeal  and  the  second judgment given by the High Court in appeal against the order of remand would become non est. [767 D-F, 767 A-B]      Keshardeo Chamria  v. Radha  Kissen Chamria  & Ors. and (vice versa)  [1953] SCR  136; Satyadhyan  Ghosal &  Ors. v. Smt. Deorajin Debi & Anr. [1960] 3 SCR 590, followed.      2: 1 All that the law of adverse possession requires is that the possession must be continuous, open and without any attempt  at  concealment.  It  is  not  necessary  that  the possession must  be effective  so as  to  bring  it  to  the specific knowledge  of the  owner. Such a requirement may be insisted on where an ouster of title is pleaded, but that is not so in the instant case. [768 B-C]      2:2. If a person asserts a hostile title even to a tank and despite  the hostile  assertion of  title no  steps were taken by  the owner  to evict  the trespasser,  his title by prescription would be complete after thirty years. [769 F-G]      3. The  High Court had no jurisdiction to entertain the second appeal  or findings of fact even if it was erroneous. In the  instant case,  the High  Court clearly  exceeded its jurisdiction under  Section 100  of the Civil Procedure Code in reversing  concurrent findings of fact given by the trial

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court and by the appellate court. [769 G-H, 770 A]      Pattabhiramaswamy v.  Hanumayya, AIR 1959 SC 57, Raruha Singh v.  Achal Singh,  AIR 1961 SC 1097; Mst. Kharbuja Kuer v. Jangbahadur  Rai, [1963] 1 SCR 456; R. Ramachandran Ayyar v. Ramalingam Chettiar, [1963] 3 SCR 604, followed. 765

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1034 of 1971.      Appeal by  Special Leave  from the  Judgment and  Order dated 30-9-1970  of the  Patna High  Court  in  Appeal  from Appellate Decree No. 733 of 1967.      V. S.  Desai, D.  N. Mukherjee  and N. R. Chaudhury for the Appellant.      K. K. Sinha and S. K. Sinha for the Respondent.      The Judgment of the Court was delivered by      FAZAL ALI,  J.-This is  a plaintiff’s appeal by special leave against  a judgment and decree of the Patna High Court dated 30th  September, 1970  and  arises  in  the  following circumstances:-      The plaintiff filed a suit for declaration of his title and recovery  of possession  and also a permanent injunction restraining the  defendant municipality  from disturbing the possession of  the plaintiff.  It appear  that prior  to the suit, proceedings  under s.  145 were  started  between  the parties in which the Magistrate found that the plaintiff was not in possession but upheld the possession of the defendant on the land until evicted in due course of law.      In the suit the plaintiff based his claim in respect of plot No.  1735, Ward  No. I  of Ranchi  Municipality on  the ground that he had acquired title to the land by virtue of a Hukumnama granted to him by the landlord as far back as 17th April, 1912  which is Exhibit 18. Apart from the question of title, the  plaintiff further  pleaded that even if the land belonged to  the defendant  municipality,  he  had  acquired title by  prescription by being in possession of the land to the knowledge  of the  municipality for  more than 30 years, that is to say, from 1912 to 1957.      The trial  court  accepted  the  plaintiff’s  case  and decreed the  plaintiff’s suit  both on the question of title and adverse possession. The defendant filed an appeal before the Additional  Judicial Commissioner, Ranchi (Chota Nagpur) which after  a consideration  of the  evidence affirmed  the finding of  the trial court and maintained the decree of the trial court  on both points. Thereafter, the respondent went up in  second appeal  to the High Court which was heard by a single Judge  of the  Court who held that there was no clear evidence to  show that  the plaintiff  had obtained title by adverse  possession   and  by   his  judgment  of  17-2-1967 (hereinafter to  be  referred  to  as  the  first  judgment) remanded the  case to the trial court for a decision only on the question of title. The effect of the order of remand was that so  far as  plaintiff’s case that he had acquired title by  prescription  was  concerned,  it  was  finally  decided against him. After remand, the Additional 766 Judicial Commissioner  held that the municipality had proved its title  to the  land in dispute and accordingly dismissed the plaintiff’s  suit. The  plaintiff then went up in appeal to  the  High  Court  which  affirmed  the  finding  of  the Additional Judicial Commissioner and dismissed the appeal by its judgment  of 30-9-1967  (hereinafter referred  to as the

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second judgment). Hence, this appeal by special leave.      Appearing for the appellant, Mr. V. S. Desai, submitted two points  before us. In the first place, he urged that the first judgment  of the  High Court  by which it remanded the matter to  the trial  court for a finding on the question of title was  legally erroneous  inasmuch  as  the  High  Court exceeded its  jurisdiction under s. 100 of the Code of Civil Procedure by reversing pure finding of fact given by the two courts below  on the  question of adverse possession as also on the question of title.      Secondly, it  was contended that even so the finding of the High  Court on  the question  of adverse  possession was given without  at all considering the materials and evidence on the  basis of which the two courts had concurrently found that the plaintiff had acquired title be adverse possession. It is  true that  the plaintiff  did not  come up  in appeal before this  Court against  the first  judgment of  the High Court obviously  because the  order passed by the High Court was  not   a  final   one  but  was  in  the  nature  of  an interlocutory order  as the  case had  been remanded  to the Additional Judicial  Commissioner and  if the said Court had affirmed the  finding of  the trial  Court, no  question  of filing a further appeal to the High Court could have arisen. Thus, the  appellant could  not be debarred from challenging the validity  of the  first judgment  of the High Court even after the  second judgment  by the  High Court was passed in appeal against  the order  of remand.  In  support  of  this contention, the  counsel  for  the  appellant  relied  on  a decision of  this Court  in the  case of Satyadhyan Ghosal & Ors. v.  Smt. Deorajin  Debi &  Anr.(1), where under similar circumstances this Court observed as follows:           "In  our  opinion  the  order  of  remand  was  an      interlocutory judgment  which  did  not  terminate  the      proceedings and  so  the  correctness  thereof  can  be      challenged in an appeal from the final orders." In coming  to this  decision this Court relied on an earlier decision in  the case  of Keshardeo  Chamria v. Radha Kissen Chamria & Ors. and vice versa where the same view was taken. 767      Mr. Sinha  appearing for  the respondent  was unable to cite any  authority of  this Court taking a contrary view or overriding the  decisions referred to above. In this view of the matter  we are  of the  opinion that  it is  open to the appellant to  assail even  the first  judgment of  the  High Court  and  if  we  hold  that  this  judgment  was  legally erroneous then  all the  subsequent proceedings, namely, the order of  remand, the  order passed after remand, the appeal and the  second judgment  given by  the High Court in appeal against the order of remand would become non-est.      We have  gone through  the judgment  of the  High Court dated 17th  February, 1967  and we  find that the High Court has reversed the findings of fact recorded by the two courts below on  the question  of adverse possession without at all displacing  the   reasons  given  by  the  courts  below  or considering the important circumstances proved and relied on by  them.  The  High  Court  based  its  decision  on  three circumstances: In the first place it was of the opinion that no clear  case of  adverse possession was put forward by the plaintiff in  his plaint,  and all that had been pleaded was that certain  building materials  were placed on the land in dispute for  some time.  Here,  with  due  respect,  we  are constrained to  observe that  the  High  Court  committed  a serious error  of record.  The allegations in paras 6, 7, 8, 9, 15,  17 and  19 are clear and specific to show the nature of  the  overt  acts  committed  by  the  appellant  to  the

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knowledge and notice of the defendant. It was not a question of a  stray or  sporadic act  of possession exercised by the plaintiff but  the plaint  shows that there was a consistent course of  conduct  by  which  the  plaintiff  asserted  his hostile title  against municipality  ever since 1912. It has also been clearly alleged in the plaint that in spite of the objection  taken  by  the  municipality  the  plaintiff  had asserted his hostile title by giving notice to the municipal authorities and  in the  year 1953  even in  a criminal case started between  the parties it was found that the plaintiff was in possession. The High Court has not at all adverted to any of  the circumstances  which have been considered by the courts below.  For instance, one of the most important facts which  clearly   proved  adverse  possession  was  that  the plaintiff had  let out the land for cultivatory purposes and used it  himself from  time to time without any protest from the defendant.  During the  period of  45 years  no  serious attempt was  made by the municipality to evict the plaintiff knowing full  well  that  he  was  asserting  hostile  title against the  municipality in  respect of the land. For these reasons, therefore, the first ground on which the High Court based its finding cannot be supported.      It was  then observed  by  the  High  Court  that  mere sporadic acts  of possession  exercised from  time  to  time would not be sufficient for the 768 acquisition of  title by  adverse possession.  As  discussed above, the  High Court  has not  at all  cared  even  to  go through the  evidence regarding  the nature of the acts said to have  been committed  by the  appellant nor  to find  out whether they  were merely  sporadic or  incidental.  Another reason  given  by  the  High  Court  was  that  the  adverse possession  should  have  been  effective  and  adequate  in continuity and  in publicity.  Here, the High Court has gone wrong on  a point  of law. All that the law requires is that the possession  must be  open and  without  any  attempt  at concealment. It is not necessary that the possession must be so effective  so as to bring it to the specific knowledge of the owner.  Such a  requirement may  be insisted on where an ouster of  title is  pleaded but  that is not the case here. The findings,  however. clearly  show that the possession of the plaintiff  was hostile  to the  full  knowledge  of  the municipality. In  this connection we might extract below the well considered  findings recorded  by the  trial court  and Additional Judicial  Commissioner both  on the  question  of title and that of adverse possession. Trial Court (Re-Title):      "I have,  therefore no doubt that these receipts relate      to the  suit land  and, therefore, they show payment of      rent by the plaintiff or his father.      Thus, it  has got  to be held that the land belonged to      the  landlords  within  whose  zamindari  it  lay.  The      plaintiff’s father,  therefore, obtained  a valid title      by the settlement from them."      (Re-Adverse possession)      "I,  therefore,   find  that  the  plaintiff  has  also      obtained title by adverse possession inasmuch as he and      his father before him had been in continuons possession      of this  land  from  1912  till  1957  when  they  were      dispossessed by the order of the magistrate in the case      under section 145 Cr.P.C."      Considering all  these, I  hold that  the plaintiff has      subsisting title to the suit land and he is entitled to      khas possession of the same." Additional Judicial Commissioner (Re-Title)

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    "There can  be no  doubt that Exts. 5 to 5(g) relate to      the same  lands for  which the  Hukumnama (Ext. 18) was      granted as  they are  for the same area as given in the      Hukumnama and  the first of these namely, Ext. 5 is for      the very  first year  after the settlement and is dated      20-5-1913. Certainly  by the Hukumnama (Ext. 18), which      is unregistered document the 769      land in  suit could be settled and it could create good      title in  favour of  the settlee  as the settlement was      for agricultural  purpose and  was accompanied  by  the      delivery of  possession and grant of rent receipts.....      P.Ws. 1,  2, 6,  9 and  8 (Plaintiff) have stated about      the  constant  possession  of  the  plaintiff  and  his      father."      (Re-Adverse possession)      "Thus from  the facts  stated above  it is  quite clear      that the  plaintiff  and  his  father  were  coming  in      possession of the land in suit since 1912 till the year      1954-55. The  Municipality  made  several  attempts  to      prevent the  plaintiff  and  his  father  from  storing      building materials  on the  suit land  from  1924  till      1954-55.      Thus the  plaintiff’s father  is proved to have been in      possession of  the suit  land both before and after the      Municipal Survey of 1928-29. The oral evidence of P.Ws.      1, 6,  5, 8  and 9  also prove  the plaintiff  and  his      father were  in actual  possession of  the suit land at      all times after the settlement by the landlord in 1912.      Hence, the  presumption of correctness of the Municipal      Survey entry has been successfully reputed in this case      by the plaintiff. The High  Court was clearly in error in interfering with the aforesaid findings of fact.      Lastly, the  High Court  thought that  as the  land  in question consisted  of a  portion of  the  tank  or  a  land appurtenant thereto, adverse possession could not be proved. This view  also seems  to be  wrong. If  a person  asserts a hostile title  even to  a tank  which,  as  claimed  by  the municipality,  belonged   to  it  and  despite  the  hostile assertion of  title  no  steps  were  taken  by  the  owner, (namely, the  municipality  in  this  case),  to  evict  the trespasser, his  title by  prescription  would  be  complete after thirty years.      On a perusal of the first judgment of the High Court we are satisfied  that the   High  Court clearly  exceeded  its jurisdiction under  s.  100  in  reversing  pure  concurrent findings of  fact given  by the  trial court  and  the  then appellate court  both on  the question  of title and that of adverse possession.  In the  case of  Mst. Kharbuja  Kuer v. Jangbahadur Rai  this Court  held that the High Court had no jurisdiction to entertain 770 second appeal  on findings of fact even if it was erroneous. In this connection this Court observed as follows:      "It  is   settled  law  that  the  High  Court  has  no      jurisdiction to entertain a second appeal on the ground      of erroneous finding of fact.      As the  two  courts  approached  the  evidence  from  a      correct perspective  and gave  a concurrent  finding of      fact, the  High Court  had no jurisdiction to interfere      with the said finding." To the  same effect is another decision of this Court in the case of  R. Ramachandran  Ayyar v. Ramalingam Chettiar where the Court observed as follows:-

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    "But  the   High  Court   cannot  interfere   with  the      conclusions of  fact recorded  by the  lower  appellate      court, however,  erroneous  the  said  conclusions  may      appear to  be to  the High Court, because, as the Privy      Council observed,  however, gross  or  inexcusable  the      error may  seem to  be there  is no  jurisdiction under      section 100 to correct that error."      The same  view was  taken in  two earlier  decisions of this Court  in the  cases of  Pattabhiramaswamy v. Hanumayya and Raruha Singh v. Achal Singh.      Thus, the  High Court  in this case had no jurisdiction after reversing  the concurrent  findings  of  fact  of  the Courts below on the question of adverse possession to remand the case  to the  Additional Judicial  Commissioner  on  the question of title which also was concluded by the concurrent findings of  fact arrived  at by the two courts as indicated above.      The conclusion,  therefore,  is  inescapable  that  the first judgment  of the  High Court remanding the case to the Additional  Judicial   Commissioner  was   clearly   without jurisdiction and  as a  logical result  thereof the order of remand and  all proceedings  taken thereafter  would  become void ab initio.      For these reasons, therefore, we allow this appeal, set aside the  judgment of  the High  Court under appeal as also the judgment of the High Court dated 17th February, 1967 and decree the plaintiff’s suit.      In the  peculiar circumstances  of the case, there will be no order as to costs. S.R.                                         Appeal allowed. 771