Full Judgment Text
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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
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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