KSHITISH CHANDRA BOSE v. COMMISSIONER OF RANCHI

Citation: [1981] 2 S.C.R. 764

Court: Supreme Court of India

Bench: S. MURTAZA FAZAL ALI, A.P. SEN, A. VARADARAJAN

Case summary

( ) 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...

Judgment text

7 li4 KSHITISH CHANDRA BOSE V. COMMISSIONER OF RANCHI February 6, 1981 [S. MURTAZA FAZAL ALI, A. VARDARAJAN AND A. N. SEN, JJ. ] 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. s~cond appeal bre-fore the High Court, scope of section 100 Civil Proacdure Code. Allowing the appeal and answering against the respondent municipality both on the question of title and adverse possession, the Court · 'D HELD : 1.

The order of remand by the High Court being an inlcrlocutory judgment -w·hich 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-BJ Keshardeo Chan1ria v. Radha Kissen Cllan1ria & 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. H 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, bis title by prescription would be complete after tlurty years. [769 F-G] 3. 1'be 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 Al Pattabhiramaswamy v. Hanumayya, AIR 1959 SC 57, Raruha Singh v. Achal Singh, AIR 1961 SC 1097; Mst. Kharbuja Kuer v. JanRbahadur Rai, [1963] 1 SCR 456; R. Ramachandran Ayyar v. Ramalingam Chettiar, [1963] 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 Appel- ~ ~ 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 11 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 appears that prior to the snit, 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 Muuicipality 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 prescrii[ltion 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 Co=issioner, 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 ev! dence 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 judgmePt) 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 Judicial Commissiouer held that the municipality had proved its title to the land in Qispute aud accordingly dismissed the plaintiff's suit. The plaintiff then went up in aweal 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 5econd 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 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 reputted 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 advcrsl' possession. In the case of Mst. Kharbuja Kuer v. Jangbahadur Rai( ') this Court held that the High Court had no jurisdiction to entertain • JI (! ) [1963] I S. C. R. 456 2-214 SCI/81 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(I) where the Court l 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, I ) because, as the Privy Council observed, however, gross or inexcusable the error may seem to be there is no juriscliction 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 3 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 indicat~<l 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.

Appeal allowed. S. R. • (2) AIR 1959 S. C. 57. (3) A JR 1961 s. C. 1097. . -~-- -f"'<--~