S. K. DUTTA, J. ( 1 ) THIS is an appeal by the defendant, against the appellant judgment and decree of reversal decreeing the plaintiffs' suit for declaration of title, and khas possession of the suit land and after ejecting the defendant therefrom, removal of unlawful constructions set up by the defendant on the suit land, permanent injunction restraining the defendant from entering into any portion of the suit land, mesne profits and other reliefs. ( 2 ) THE case of the plaintiffs is as follows: (A)the plaintiff No. 1 is the owner of Moujas Kulti and Kendua in the district of Burdwan on the basis of settlement taken by its predecessor's in interest from the Secretary of State for India in Council for a term of 999 years of establishing and running its iron works. The iron works since established in pursuance thereof are known as Kulti Works. (B) By indenture dated November 8, 1924, (certified copy marked Ext. 1) the plaintiff No. 1 took another lease for 999 year of 54. 03 acres of land within Mouja Kulti and Kuldihi from Maharaja Sir Manindra Chandra Nandi of Cossimbazar at an annual rent of Rules. 2,000/- only. The suit land which is comprised within C. S. Plot No. 1269, Khatian No. 1 of Mouja Kulti measuring 41'x13'=533 sq. ft. is included within the said demised land. (C)by virtue of the aforesaid settlement, the plaintiffs had been in possession of the said C. S. Plot No. 1269 for their Kulti Works publicity, openly and as of right since the said date, and, apart from its positive and substantial title, acquired indefeasible title to the said plot through adverse possession and prescription. (D)the plaintiff No. 1, the Bengal Iron I Ltd. went into voluntary liquidation on December 2, 1936, and pursuant to the scheme of arrangement Mills Findley Anderson is one of the joint liquidators of the said company with joint and several powers to act on behalf of the said company. (D)the plaintiff No. 1, the Bengal Iron I Ltd. went into voluntary liquidation on December 2, 1936, and pursuant to the scheme of arrangement Mills Findley Anderson is one of the joint liquidators of the said company with joint and several powers to act on behalf of the said company. (E)under the terms of the said scheme, the plaintiff No. 1 was to transfer the whole of its undertaking, properties and assets to the plaintiff No. 2, Indian Iron and Steel I Ltd. Though no format deed of transfer has been executed, the plaintiff No. 2 has been given possession of the properties of the said company including the suit land and has been running and conducting the said Kulti Works. (F) the defendant has never any right, title or interest in the suit land which belonged to the plaintiffs by virtue of their aforesaid title and possession. (G)by another indenture dated July 30, 1941, [certified copy marked Ext. 1 (a)] made between the Maharaja of Cossimbazar and the plaintiffs Nos. 1 and 2, while reciting the taking over of the demised properties and assets of the plaintiff No. 1 as aforesaid by the plaintiff No. 2, the Maharaja of Cossimbazar gave consent to various transfer made by the said companies and recorded an abatement of annual rent to 1992/11/6 in consideration of the surrender of 20 acres of land of Dag No. 405 Mouja Kuldihi by the plaintiffs. (H)the defendant holds a part of C. S. Plot No. 405, Mouja Kuldihi lying to the contiguous east of the suit land. Taking advantage of the contiguity of the suit land with the defendant's land the defendant fraudulently and clandestinely encroached upon and trespassed into a portion of the suit land mentioned in schedule to the plaint on or about July, 1956. The plaintiffs at once protested against the wrongful act of the defendant calling upon him to vacate the suit land. The defendant promised to vacate the land if the encroached land was found to be within the C. S. Plot No. 1269, but thereafter though the plaintiffs insisted for a joint survey, the defendant deferred the same on some pretext or other. The defendant promised to vacate the land if the encroached land was found to be within the C. S. Plot No. 1269, but thereafter though the plaintiffs insisted for a joint survey, the defendant deferred the same on some pretext or other. (I)the defendant on March 12, 1957, started constructing pucca compound walls round the encroached suit land and when the plaintiffs protested by giving notices, no head was paid and the defendant proceeded with the erection of the boundary walls in haste. The plaintiffs, in the circumstances, instituted the suit on March 18, 1957, in the Second Court of the Munsif at Asansol, claiming the aforesaid reliefs and the suit was registered as Title Suit No. 39 of 1957. ( 3 ) THE defendant contested the suit and filed a written statement on June 10, 1957, denying the material allegations made in the plaint. It was specifically denied that the plaintiff encroached upon the C. S. Plot No. 1269 as and in the manner alleged in the plaint. The defendant contained that the fencing was on his land within C. S. Plot No. 405, Mouja Kuldihi and was in existence for the last 30 years alongwith his possession of the said land. The defendant denied that he ever trespassed upon the plaintiffs' land at any time. The defendant's request for a joint survey was not complied with. It was further stated that the defendant was a monthly tenant under the Maharaja of Cossibazar in respect of land of Block No. 3 within C. S. Plot No. 405, Mouja Kuldihi and has been in possession thereof alongwith the adjoining fenced land on the east by growing vegetables for over 30 years. On December 15, 1950,the defendant took a permanent settlement of the land of his monthly tenancy through a registered kabuliyat and has been continuing with his possession as before, openly, publicly, as of right and continuously for over 12 years prior to institution of suit. The defendant claimed that he has, apart from his title, acquired independent title by adverse possession. The defendant further claimed that he merely replaced the bamboo and rollah fencing by a brick built wall, which was completed long before the institution of the suit. It was further contended that the plaintiffs have no locus standi to institute the suit. The defendant claimed that he has, apart from his title, acquired independent title by adverse possession. The defendant further claimed that he merely replaced the bamboo and rollah fencing by a brick built wall, which was completed long before the institution of the suit. It was further contended that the plaintiffs have no locus standi to institute the suit. The suit in the premises, it was submitted, was liable to be dismissed with compensatory costs. ( 4 ) IT appears that a pleader Commissioner was appointed to survey the suit land and his report including the map as also the filed book was accepted without any objection from either party. The learned Commissioner found that out of the suit land, portion marked b, c, d, e, and f in the map measuring 509 sq. ft. appertains to C. S. Plot No. 1269, Mouza Kulti while 24 sq. ft. (portion marked a, e and f therein) appertains to C. S. Plot No. 405, Mouja Kuldihi. ( 5 ) ON the pleadings, the learned Munsif framed the following issues: - (1)is the suit maintainable in its present from ? (2)has the plaintiff No. 2 got any locus standi to bring the suit ? (3)is the suit barred by limitation or adverse possession ? (4)is the suit barred by estoppel, acquiescence and waiver ? (5)does the land within the boundaries given in the schedule of the plaint appertain to C. S. Plot No. 1269 in Mouza Kulti or C. S. Dag No. 405 of Mouza Kuldihi ? (6)has the plaintiff title to the suit lands ? (7)was the plaintiff ever in possession of the suit land within 12 years of the date of filing of the present suit ? (8)to what relief, if any, the plaintiff is entitled ? ( 6 ) DURING trial, both parties adduced evidence oral and documentary. The learned Munsiff, in his otherwise commendable judgment, found that the liquidators were competent to institute the suit, that the plaintiff No. 2 had the right to sue on the basis of his possessory title and that the suit land appertained to C. S. Plot No. 1269 to the extent found by the Commissioner. He further held that Article 142 applied to the case and the suit was barred by limitation. He further held that Article 142 applied to the case and the suit was barred by limitation. The plaintiffs having no possession of the suit land long over 12 years of the suit, and further the plaintiff's title on the basis of rebuttal evidence by the defendant was extinguished by adverse possession of the defendant for over 12 years. The learned Munsif, accordingly by his judgment and decree dated May 23, 1959, dismissed the suit on contest with costs. ( 7 ) THE plaintiffs, against the said decision, preferred an appeal, being Title Appeal No. 44 of 1959. The appeal was heard by Sri A. K. De, Additional District Judge, Asansol, who by his judgment dated December 19, 1960, reversed the decision of the learned Munsif and decreed the suit. The defendant has come up to this Court in second appeal against the aforesaid appellate judgment and decree of reversal. ( 8 ) MR. Sudhis Das Gupta, the learned Advocate for the defendant appellant has, firstly, contended that the Court of appeal below misread the Commissioner's report at least in respect of 24 sq. ft. of land which was found to be within Plot No. 405 and the claim of the plaintiffs, in any event in respect of this area, should have been disallowed as the plaintiff's case was on the basis that the suit land appertains to their C. S. Plot No. 1269. ( 9 ) MR. Pramatha Nath Mitra, the learned Advocate appearing for the respondent has not disputed the defendant's claim in regard to 24 sq. ft. of land appertaining to Dag No. 405. In fact he conceded that the Commissioner's report and map which have been made part of the decree provided for the area as appertaining to the defendant's land. It is obvious that the decree obtained by the plaintiff was to be limited to Plot No. 1269 and the plaintiffs never had nor claimed any right to the 24 sq. ft. of land of Dag No. 405. ( 10 ) MR. Das Gupta has seriously contended that the lower Appellate Court in reversing the findings of the trial court, has proceeded on assumptions and surmises contrary to evidence. This, he added, has caused a substantial error and defect in procedure leading to an error in the decision of the case upon merits. ( 10 ) MR. Das Gupta has seriously contended that the lower Appellate Court in reversing the findings of the trial court, has proceeded on assumptions and surmises contrary to evidence. This, he added, has caused a substantial error and defect in procedure leading to an error in the decision of the case upon merits. Illustrating his point, he has stated that the learned Judge has found inconsistency in regard to construction of the fencing as stated in paras 17 and 18 of the written statement when, in fact, there is no such inconsistency. The learned Judge has taken an adverse inference as to the case of the defendant regarding the manner of possession of the suit land, only because there is no mention in the written statement of cowshed or garden on the suit land, while the plaintiff's case about the nature of their possession is believed even though the plaint does not disclose the same. Mr. Das Gupta further contended that the lower Appellate Court was wrong in not holding that the defendant's possession could not be adverse to the company-lessee plaintiffs during 1926 to 1950, though it was not and could not be against the landlord, the Maharaja. The Appellate Court has further erred in discarding the evidence of D. W. 6 and in thinking that there was any discrepancy in the evidence on the side of the defendant and his written statement. The learned Judge further erred in thinking that there is no claim for adverse possession by the defendant though in paragraph 19 of his written statement and in Exhibit D, the defendant claimed such right. Mr. Das Gupta submitted that in view of the errors aforesaid, the lower Appellate Court committed substantial errors in procedure in coming to the decision upon merits and the decision under appeal should accordingly be set aside. ( 11 ) MR. Mitra has contended that the findings of the lower Appellate Court to the effect that the plaintiffs have proved their possession in the suit land within 5 years of the suit, on the basis of oral evidence believed by it, are findings of facts and cannot be interfered with in a second appeal. ( 11 ) MR. Mitra has contended that the findings of the lower Appellate Court to the effect that the plaintiffs have proved their possession in the suit land within 5 years of the suit, on the basis of oral evidence believed by it, are findings of facts and cannot be interfered with in a second appeal. The same is the position, he contended, relating the evidence adduced by the defendant, in respect whereof, the assessment of the lower Appellate Court is that such evidence does not at all prove that the defendant was really possessing the suit land from 1926 or for 30 years or from before 1950 or before 5 years of the suit. ( 12 ) THE limits of the jurisdiction of the High Court to interfere with the decisions of the lower Appellate Court under clauses (a), (b) and (c) of section 100 (1) of the Code of Civil Procedure was restated by the Supreme Court in the case of (1) V. Ramchandra Ayyar and Another v. Ramalingam Chettiar and Another, AIR 1963 SC 302 . The High Court can interfere if it is satisfied that the decision is contrary to law or some usage having the force of law or if there is a substantial error or defect in the procedure provided by the Code or by any other law for the time being in force which may have produced error or defect in the decision of the case upon the merits. The error or defect must be connected with or relating to procedure and not any error or defect in the appreciation of evidence adduced by the parties on the merits. "that is why, even if an appreciation of evidence made by the lower Appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure. "that is why, even if an appreciation of evidence made by the lower Appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure. " If the lower Appellate Court misplaces on the wrong party and arrives at a finding of fact substantially on the basis of the said wrong approach; or if it discards evidence as inadmissible, which the High Court thinks admissible if the lower Appellate Court fails to consider an issue tried and found upon by the trial court, and reverses the trial court's decision without consideration of such issue; if the lower Appellate Court allows a new point of fact or a new plea of fact to be raised before it or makes out a new case for the party; if the conclusion of fact recorded by the lower Appellate Court is not supported by any evidence all these are held to be defects in procedure warranting interference by the High Court in second appeal. ( 13 ) KEEPING the above principles in mind, I am unable to hold that the findings arrived at by the lower Appellate Court suffer from any defect in procedure causing error or defect in the decision upon merits. The lower Appellate Court has assessed the evidence adduced by the parties and on a consideration of the same, has come to its own findings to the effect that the plaintiffs have proved their possession of the suit land within 5 years of suit and the defendant has failed to prove his possession thereof from 1926 or for 30 years or from before 1950 as claimed by him and accordingly the suit was barred by limitation. None of the defects or errors in procedure enumerated above or otherwise has been committed by the lower Appellate Court and accordingly it is not competent for this Court sitting in second appeal to interfere with the findings of the said Court. The contentions of Mr. Das Gupta must therefore be overruled. ( 14 ) MR. Das Gupta has also assailed the findings of the lower Appellate Court which held that possession of the defendant in any event could not be adverse in absence of the requisite animus. The contentions of Mr. Das Gupta must therefore be overruled. ( 14 ) MR. Das Gupta has also assailed the findings of the lower Appellate Court which held that possession of the defendant in any event could not be adverse in absence of the requisite animus. The defendant in his written statement as also in evidence has contended that the suit land appertains to his Plot No. 405, which is now found, excepting an area of 24 sq. ft. to be within Plot No. 1269. It is obvious that the defendant according to his case, was over the suit land on the mistaken belief that it was within his land. Even so, Mr. Das Gupta has contended, that in cases where a person under a mistake as to the boundaries enters and occupies land not embraced in his title, claiming it as his own, for the requisite statutory period, he thereby becomes invested with the title thereto by possession, although his entry and possession may have been found upon a mistake In support, he relied on decisions in (2) Allah Dad v. Fazal Dad, 46 I 964, (3) Niranjan Singh v. Mahabir Singh, 123 I 820, and also in (4) Jai Krishna v. Babu, 133 I 696. ( 15 ) POSSESSION in law consists of the fact physical occupation and the mental act of holding the subject of possession to the exclusion of others as hostile to and in denial of the title of the owner. The unity of these two elements namely, occupation and animus possidendi is recognized as constituting possession in the eye of law. The defendant in his cross-examination, even on April 23, 1959, after the submission of the Commissioner's report, which was accepted on March 21, 1958, in absence of any objection by either party, stated as follows : "i have never illegally possessed lands belonging to others. I have never desired to possess lands not my own". As a portion of the suit land is found to be not belonging to him, in respect of such portion of land, it must be held that he never had any desire to possess such land as hostile to and in denial of the title of the owner, as admitted by him though he may be in occupation thereof. As a portion of the suit land is found to be not belonging to him, in respect of such portion of land, it must be held that he never had any desire to possess such land as hostile to and in denial of the title of the owner, as admitted by him though he may be in occupation thereof. The conclusion is therefore inescapable that the defendant had no animus possidendi in respect of that portion of the suit land appertaining to C. S. Plot No. 1269. In absence of any intention to claim as his own the land so encroached and occupied, and, thus of any assertion of hostile title thereon by the defendant in denial of the title of the plaintiff's as owners, there cannot be any possession adverse to the plaintiffs leading to acquisition of prescriptive title on the part of the defendant. The ruling cited by Mr. Das Gupta has no application as the case before us is not merely a case of occupation though by mistake as one's own but one of absence of requisite intention to possess land adversely. The contentions raised by Mr. Das Gupta must therefore fail. ( 16 ) THERE is no dispute that in respect of the lands of Plot No. 405, Mouja Kuldihi, the status of the defendant was that of a monthly tenant till 1950 under the Maharaja of Cossimbazar when he became a permanent lessee of the land under his tenancy. The plaintiffs claimed their title as lessee on the basis of the indenture dated November 8, 1924 (Exhibit 1), confirmed by indenture dated July 30, 1941 (Exhibit 1 (a ). Assuming that the defendant was in continuous, open and exclusive possession of the suit land with the requisite animus before 1950, such possession could only be held as a part and parcel of his monthly tenancy he held under the Maharaja of Cossimbazar, and this position is not in dispute. It is, however, urged that such adverse possession by the defendant extinguished the title of the plaintiffs. It is clear that such adverse possession if at all possible and even if so, enured to the benefit of the landlord Maharaja and reverted back to him when the defendant's monthly tenancy ceased in 1950. It is, however, urged that such adverse possession by the defendant extinguished the title of the plaintiffs. It is clear that such adverse possession if at all possible and even if so, enured to the benefit of the landlord Maharaja and reverted back to him when the defendant's monthly tenancy ceased in 1950. The Maharaja, however did not claim any extinguishment of the plaintiff's title on the land of C. S. Plot No. 1269; on the other hand, the plaintiff's title was throughout kept alive and acknowledged by him and, after vesting, by the State of West Bengal as will appear from the rent receipts Exhibits 2 series issued on the basis of the plaintiff's title under Exhibits 1 and 1 (a ). I am therefore of opinion that the title of the plaintiffs did not extinguish by the alleged adverse possession of the defendant at least till December 15, 1950, the date of defendant's new settlement. ( 17 ) MR. Das Gupta also challenged the right of the plaintiff No. 1 to institute the suit through its liquidators. It was contended that the liquidators were not competent to institute the suit on behalf of the plaintiff No. 1, as it was not within their powers to do so. Sections 203 (2), 205, 208a and 212 of the Indian Companies Act, 1913 (Act VII of 1913), were relied upon. It appears, however, that the contentions on this issue are misconceived. The plaintiff No. 1, as it appears from Exhibits 1 and 1 (a), was incorporated in England and on December 2, 1936, when the plaintiff No. 1 went in voluntary liquidation, it was governed by the provisions of the English Companies Act, 1929 (19 and 20 Geo 5 c. 23), then in force in United Kingdom. Exhibit 5, the certified true copy of the Special Resolution at the Extraordinary General Meeting of the said company dated December 2, 1936, shows that company wound up voluntarily and Mr. M. F. Anderson with another, was appointed liquidators with joint and several powers for the purposes of winding up, and Mr. Anderson's powers to act singly was preserved by the resolution dated April 21, 1948, [certified true copy of the resolution marked Exhibit 5 (a)]. M. F. Anderson with another, was appointed liquidators with joint and several powers for the purposes of winding up, and Mr. Anderson's powers to act singly was preserved by the resolution dated April 21, 1948, [certified true copy of the resolution marked Exhibit 5 (a)]. Under section 248, sub-section (1), clause (b) of the said Act, the liquidator in voluntary liquidation is empowered to exercise, even without sanction of an extraordinary resolution of the company, powers in section 191 (1), sub-section (a), (b) and (c) thereof to the liquidator in a winding up by the Court, clause (a) of section 191 (1) thereof provides the power to bring or defend any action or other legal proceeding in the name and on behalf of the company. Sections 191 and 248 of the English Companies Act, 1929, are respectively almost similar to sections 179 and 212 of the Indian Companies Act, 1913 and sections 457 and 512 of the (Indian) Companies Act, 1956. In view of the above provisions, it cannot be contended that the suit is not maintainable by the liquidator on behalf of the company. ( 18 ) MR. Das Gupta has lastly contended that the plaintiff No. 2 has no locus standi to institute the suit, its status being that of a licensee and a licensee cannot sue a trespasser for possession. The plaintiff No. 2 is in possession of the properties of the plaintiff No. 1 since 1936 in terms of scheme of arrangement which provides for transfer of its whole of the undertakings, properties and assets to the plaintiff No. 2 though no formal transfer in respect of the immovable properties has yet been executed. The plaintiff No. 2 obtained possession for long over 12 years prior to suit, which has clothed it with a colour of title. Where, as here, the plaintiff No. 1, the decree jure owner, has joined the plaintiff No. 2 in the action for recovery of possession of the suit land on declaration of their title thereto, and in so far as it appertains to Plot No. 1269, there is, in my opinion no scope, for any further objection to the suit as being not maintainable, or as to the plaintiff No. 2 having no locus standi to maintain the suit. The contentions of Mr. Das Gupta are accordingly overruled. The contentions of Mr. Das Gupta are accordingly overruled. ( 19 ) AS all the material contentions raised on behalf of the appellant fail the appeal is liable to be dismissed. The point however, in regard to 24 sq. ft. of land out of the suit land as found in the report and delineated in the map of the learned Commissioner as appertaining to C. S. Plot No. 405, Mouza Khuldihi must succeed and the plaintiffs' claim in regard to the said 24 sq. ft. of land appertaining to C. S. Plot No. 405 must fail. ( 20 ) IT is, accordingly, ordered that the appeal is allowed in part and the plaintiffs suit in regard to 509 sq. ft. as appertaining to C. S. Plot No. 1269 as found in the report and delineated in the map of the Commissioner (which have been made part of the decree) is decreed with all other reliefs granted by the lower Appellate Court in respect thereof. In regard to the land measuring 24 sq. ft. of the suit land appertaining to C. S. Pot No. 405, Mouja Kuldihi as found in the report and delineated in the map of the Commissioner, the plaintiffs' suit is dismissed. In the circumstances of the case, I further direct that the parties shall bear their own costs throughout. Appeal allowed.