Holding

The High Court exceeded its jurisdiction under Section 100 CPC by reversing concurrent findings of fact, rendering the remand order and subsequent proceedings void, and the plaintiff's suit was decreed in his favour.

Summary

Kshitis Chandra Bose sued the Ranchi Municipality for declaration of title and possession of plot No. 1735, claiming title by a 1912 Hukumnama and by prescription after 30 years of continuous, open, hostile possession. The trial court and the Additional Judicial Commissioner upheld his claim on both title and adverse possession. The High Court, in a first judgment (17 February 1967), reversed the findings of fact on adverse possession and remanded the case for a determination of title, exceeding its jurisdiction under Section 100 of the Civil Procedure Code. After remand, the Additional Judicial Commissioner ruled in favour of the municipality and the High Court affirmed this in a second judgment (30 September 1967). The Supreme Court held that the High Court had no power to overturn concurrent factual findings and that the remand order, being interlocutory, could be challenged; consequently, the High Court judgments were set aside and the plaintiff's suit was decreed in his favour.

Issues considered

Whether an interlocutory order of remand can be assailed and the first High Court judgment reviewed in a subsequent appeal.
Whether the High Court had jurisdiction under Section 100 CPC to reverse concurrent findings of fact on title and adverse possession.
What are the essential requirements of adverse possession/prescription under Indian law.
Whether adverse possession can be claimed over a tank or land appurtenant thereto.

Legislation cited

Code of Civil Procedure, 1908s. 100
Code of Criminal Procedure, 1973s. 145

Subjects

adverse possessionprescriptiontitle by prescriptionCivil Procedure CodeSection 100interlocutory orderjurisdictionremandmunicipal landtank

Judgment

7 li4

A 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.
c
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 judg-
ment 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
F 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]
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.
K. c. BOSE v. COMMISSIONER (Fazal Ali, J.) 7 65

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1034 of 1971. A
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, C
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 acquir-
ed title to the land by virtue of a Hukumnama granted to him by the E
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.
F
The trial court accepted the plaintiff's case and decreed the plain-
tiff'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 judg-
ment 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 ques-
tion 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 concern-
ed, it was finally decided against him. After remand, the Additional
766 SUPREME COURT REPORTS [1981] 2 S.C.R.

A 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.
B
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
c Civil Procedure by reversing pure finding of fact given by the <wo
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
D considering the materials and evidence on the basis of which the two
courts had concurrently found that the plaintiff had acquired title by
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
E 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 Conrt even after the second judgment by
the High Court was passed in appeal against the order of remand. In
F 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 interlocu-
G tory 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 ( 2 ) where the same view was taken.
B
(I) [1960] 3 S.C.R. 590
(2) [1953] S.C.R. 136
K. c. BOSE v. COMMISSIONER (Fazal Ali, J.) 767

Mt. Sinha appearing for the respondent was unable to cite any A
.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 a.II the subsequent proceedings, namely, the order of remand, the
order passed after remand, the appeal and the second judgment given B
• by the High Court in appeal against the order of remanil 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 c
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 posses-
sion was put forward by the plaintiff in his plaint, and all that had
been pleaded was that certain building materials wern placed on the D
land in dispute for sonie time. Here, with due respect, we are con-
strained 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 E
plaintiff but the plaint shows that there was a consistent course of
conduct by which the plaintiff asserted his hostile title against munici-
pality ever since 1912. It has also been clearly alleged in the plaint
1hat in spile 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
F
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 con-
sidered 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 G
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
• 'upported . H
It was then observed by the High Court that mere sporadic acts of
poisession exercised from time to time would not be sufficient for the
768 SUPREME COURT REPORTS (1981] 2 S.C.R- ;.

A 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 po••es-
sion should have been effective and adequate in continuity and in
B publicity. Here, the High Court has gone wrong on a point of Jaw.
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,
c 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.
D
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 hls father.
Thus, it has got to be held that the land belonged to the
E 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 ills father before him
F had been in continuous possession of this land from 1912 till

.. "
1957 when they were dispossessed by the order of the magis-
trate in the case nnder 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
G the same."
Additional Judicial Commissioner (Re-Title)
''There can be no doubt that Ex.ts. 5 to 5 (g) relate to the
same lands for which the Hukurnnama (Ext. 18) was granted
as they are for the same area as given in the Hukumnama and
H 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
•

K. c. BOSE v. COMMISSIONER (Fazal Ali, J.) 7 69

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."
• n
• (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 c
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 I>
the suit land at all times after the settlement by the landlord
in 1912. Hence, the presumption of correctness of the Muni-
cipal Survey entry has been successfully reputted in this case
by the plaintiff.

The High Court was clearly in error in interfering with the aforesaid E
findings of fact.

Lastly, the High Court thought that as the land in question con-
sisted 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 F
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.
G
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
770 SUPREME COURT REPORTS [1981] 2 s.c.R.

A 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
B 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 : -
c
"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
D 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.( 3 )
Thus, the High Court in this case had no jurisdiction after reversing
E 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
F the High Court remanding the case to the Additional Judicial Commis-
sioner 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
G 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.
..
•
(!} [19631 3 S.C.R. 604.
(2) AIR 1959 S.C. 57.
(3) A JR 1961 s.C. 1097 .

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