Kshitish Chandra Bose Vs. Commissioner
of Ranchi  INSC 26 (6 February 1981)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
VARADARAJAN, A. (J)
CITATION: 1981 AIR 707 1981 SCR (2) 764 1981
SCC (2) 103 1981 SCALE (1)521
Right to assail, in an appeal against the
second judgment of the High Court, the correctness of its first judgment,
Law relating to adverse possession and title
by prescription, clarified.
Second appeal before the High Court, scope of
section 100 Civil Procedure Code.
Allowing the appeal and answering against the
respondent municipality both on the question of title and adverse possession,
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)  SCR 136;
Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi & Anr.  3 SCR 590,
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 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,  1 SCR 456; R. Ramachandran Ayyar v. Ramalingam
Chettiar,  3 SCR 604, followed.
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
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 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
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 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) "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
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
"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:- "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
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
In the peculiar circumstances of the case,
there will be no order as to costs.
S.R. Appeal allowed.