KSHITISH CHANDRA BOSE versus COMMISSIONER OF RANCHI

Citation: [1981] 2 S.C.R. 764 · Decided: 06-02-1981 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

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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 
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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 
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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] 
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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. 
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-
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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 
)' .;:> 
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11 judgment and decree of the Patna High Court dated 30th September, 
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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 
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 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 b

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