Judgment S.B.Sinha, J. 1. This Second appeal arises out of the judgment and decree dated 19th July, 1991 passed by Sri A. C. Dutta, Ist Additional Judicial Commissioner, Ranchi, in Title Appeal No. 23 of 1990 whereby and where-under the said learned court affirming the judgment and decree dated 20th June, 1989 passed by Sri K. N. Shah, Subordinate Judge VIth Court, Ranchi in Title Suit No. 202 of 1984/5 of 1988 decreeing the plaintiffs-respondents suit. 2. The fact of the matter is as follows: The plaintiff respondent No. 1 filed the aforementioned suit inter alia for declaration of his right title and interest in respect of a triangular place of land measuring 224 x234 x 350 bearing M. S. Plot No. 942 situated at Maickle Road, Upper Bazar in the town of Ranchi as described in schedule of the plaint as also for a declaration that defendant No. 1 appellant has no power or authority to declare the land in suit as a private bus stand under the provisions of Sec. 7 (1) of the Motor Vehicles Act, 1939 read with Rule 88 of the Bihar Motor Vehicles Rules as also for a decree for setting aside the notification issued by defendant No. 1 in that regard. The plaintiff further prayed for a decree for mandatory injunction directing defendant No. 1 to withdraw the said notification and for restraining him from doing any further construction work thereupon through defendant Nos. 2 and 3. 3. According to the plaintiff, the land in question belonged to Maharaja of Chotanagpur. The village Ranchi where the suit land is situate along with several other villages were granted in Khrposh right by the Maharaja of Chotanagpur in favour of Kunwar Shri Shahdeo ancestor of defendant No. 2. 4. Allegedly about 150 years ago, a Math was founded by Naga Baba Manohar Das Jee and with implied consent of the ancestors of the defendant, the aforementioned Mahanth occupied the suit land began to use the same for the purpose of performing religious functions of the Math and for other purposes. Allegedly the lands thus became the property of Naga Baba Math. 5. Allegedly the lands thus became the property of Naga Baba Math. 5. In the cadastral survey settlement record of right, the suit property was recorded in the name of Bara Lal Nawal Kishorenath Shabdeo grand father of defendant No. 5 in respect of Ranchi Thana No. 203 in Khewat No. 2 under the then Maharaja of Chotanagpur. 6. Allegedly the lands in question had all along been used by the plantiffs predecessor in interest and disciples of the original Mahanth had been possessing the said land by exercising various acts of possession. The plaintiffs further case is that in the year 1924, the then Ranchi Municipality now Ranchi Municipal Corporation (defendant No. 4) began to interfere with the peaceful possession of Mahanth Gyan Prakash Jee over the land in question for which a proceeding under Sec. 144 of the Code of Criminal Procedure was initiated. On 18-2-1926 another proceeding under Sec. 145, Cr. P. C. was initiated wherein the Ranchi Muncipality, Naga Baba Mahanth Gyan Prakah Das Jee Bara Lai Nawal Kishorenath Shahdeo, Raghunath Sahay and Sukhdeo Mishra figured as parties to the proceeding. 7. By an order passed in the year 1925 the then Sub-divisional Officer allegedly held that as it was not possible for him to decide the possession of the land in question and thus he attached the same in exercise of his power under Section 146 of the Cade of Criminal Procedure. However, none of the parties to the said proceeding filed any suit in Civil Court for declaration of title despite the said order of attachment. In the Municipal Survey Settlement, the land in question was recorded as Kaishar-e-Hind and in the remark column it was noted that the land was attached under Sec. 146 of the Code of Criminal Procedure. 8. The plaintiff claimed that even if there was a defect in the title of Naga Baba Math, it had perfected its title by long and continuous possession for over 90 years prior to the attachment of the suit land. 9. It was stated that the defendant No. 1 allegedly issued a notification which was published in Ranchi Express on, 16-5-1984 in purported exercise of his power under Rule 88 of the Bihar Motor Vehicles Rules declaring the land in question to be a Bus Stand. 9. It was stated that the defendant No. 1 allegedly issued a notification which was published in Ranchi Express on, 16-5-1984 in purported exercise of his power under Rule 88 of the Bihar Motor Vehicles Rules declaring the land in question to be a Bus Stand. A writ petition was filed by the plaintiff in this Court which was registered as C.W.J.C. No. 904 of 1984(R) and the same was disposed of by an order dated 24th July, 1984 with an observation that the plaintiffs may file a suit in Civil Court for establishing his title. 10. A written statement was filed on behalf of defendant No. 1 appellant. Another written statement was filed on behalf of defendant No. 5. Defendant No. 4 did not file any written statement nor does it appear that he contested the suit. However defendant No. 5 supported the case of the plaintiff. 11. In its written statement, defendant No. 1 inter alia contended that the suit was barred by limitation and was bad for non-joinder of necessary parties. Defendant No. 1 further contended that State of Bihar was a necessary party to the suit and in its absence the suit could not proceed. It was further asserted that the land in question were recorded as Kaishar-e-Hind and thus the State has all along been in possession of the suit land. The said defendant pleaded his ignorance with regard to the purported order of attachment passed by the Sub-divisional Officer under Sec. 146 of the Code of Criminal Procedure. 12. It was further asserted that a boundary wall had already been constructed on the suit land at the instance of the of State of Bihar. It has been asserted that the Deputy Commissioner, Ranchi, had every right to issue notification declaring the land in suit as private bus stand under the provisions of the Motor Vehicle Act and the rules framed thereunder. 13. It was alleged that no suit having been filed within the prescribed period of limitation after the purported order of attachment was passed and within the prescribed period after preparation of the record of rights, the suit was barred by limitation. 14. On the aforementioned pleadings of the parties the learned trial Court framed the following issues: (1) Is the suit of the plaintiff as framed maintainable? (2) Has the plaintiff valid cause of action for the suit? 14. On the aforementioned pleadings of the parties the learned trial Court framed the following issues: (1) Is the suit of the plaintiff as framed maintainable? (2) Has the plaintiff valid cause of action for the suit? (3) Is the suit of the plaintiff time barred? (4) Is the suit of the plaintiff bad for non-service of notice under Section 80, C. P. C.? (5) Is the suit of the plaintiff suffer from any defect of non-joinder of necessary parties? (6) Whether the plaintiff has any right, title and interest over the lands in suit? (7) Whether the lands in suit were attached under Sec. 146, Cr. P. C. in Misc. Case No. 228 of 25 and the attachment still continuing or not? (8) Has the defendant No. 1 any right and authority to issue notification declaring the lands in suit as Public Bus stand or the notifications are illegal, void and without jurisdiction? (9) Whether the lands in suit belong to Kaisare Hind and its entry in the Municipal Survey Record of Rights with respect to the lands is correct? (10) Whether the plaintiff is entitled to a decree for partition of his right, title and interest as claimed for? (11) To what relief or reliefs is the plaintiff entitled to? 15. The learned trial court decreed the plaintiffs suit. Defendant No. 1 thereafter preferred an appeal in the Court of Judicial Commissioner, Ranchi which was eventually transferred to the Court of Ist Addl Judicial Commissioner, Ranchi for disposal and by reason of the impugned judgment, the said appeal has been dismissed. The instant Second Appeal arises out of the said judgment. 16. By order dated 2-1-1992 a learned Single Judge while admitting the appeal framed the following substantial questions of law: (A) Whether the courts below have erred in law in recording the finding that the respondent No. 1 and his predecessors-in-interest had preferred their title by adverse possession when the land in question was under attachment in view of the order passed under Sec. 146 of the Code of Criminal Procedure on 31-5-1926? (B) When there is no document to show that the land in question was not an agricultural land and there is positive evidence that it was recorded in the municipal as a holding under the Bihar and Orissa Municipal Act, whether the respondent No. 1 could have claimed oral settlement of the same from the person in whose favour khewat was recorded? It appears from the order dated 21-1-1992 that liberty was given to the appellant to formulate further substantial question of law at the time of hearing of this appeal. 17 Mr. M. Y. Eqbal learned Government Pleader No. 1 submitted that the following additional substantial questions of law be also formulated for consideration of this Court: (A) Whether in view of the fact that the plaintiff had valued the suit at Rs. 10150 and for the purpose of jurisdiction for the relief (a) the suit was valued at Rs. 10000 and at Rs. 15000 for reliefs (0) and (c) and fixed court fee of Rs. 24.50 for relief (a) and Rs. 25 for relief (b) and (c) the suit was maintainable. (B) Whether the suit is barred under the proviso to Sec. 34 of the Specific Relief Act (C) Whether in view of the assertions made by the plaintiff himself that his ancestors came in possession of the lands in question with implied consent of the ancestors of the defendant No. 5, the plaintiff can be said to have acquired title by adverse possession and whether the plaintiff has any subsisting right, title and interest over the land in question after coming into force of Bihar Land Reforms Act, 1950 ? 18. In view of the fact that liberty had been given to the applicant to formulate other substantial questions of law at the time of hearing and further in view of the fact that the points raised at the Bar are pure questions of law and arise on the face of the pleadings of the parties as also the impugned judgment, permission was accorded to the appellant to make submissions on the aforementioned substantial questions of law also. 19. Mr. M. Y. Eqbal, submitted that in view of the fact that the plaintiff had inter alia, prayed for a relief of a mandatory injunction, the suit was barred under the proviso appended to Sec. 34 of the Specific Relief Act. 19. Mr. M. Y. Eqbal, submitted that in view of the fact that the plaintiff had inter alia, prayed for a relief of a mandatory injunction, the suit was barred under the proviso appended to Sec. 34 of the Specific Relief Act. It was further submitted that the plaintiff could not have given two separate valuations one for the purpose of court fee and another for the purpose of jurisdiction of the Court. In view of the fact that consequential relief prayed for by the plaintiff are dependant upon the grant of main relief, the learned Counsel submitted that the suit was not maintainable. Learned Counsel in this connection has relied upon Abinash Chandra Chakravarty V/s. Smt. Kamla Devi. 20. With regard to the question of limitation learned Government Pleader No. 1 submitted that although the land in question were attached in view of the decision of the Division Bench of this Court in Jurawan Singh and Ors. V/s. Ramsarekh Singh and Ors. reported in AIR 1933 Pat 224 upon which learned courts below, themselves have placed strong reliance, the suit should have been held to be covered by Article 47 of the old Limitation Act which is equivalent to Article 65 of the Limitation Act, 1963 and, thus, the suit should have been held to be barred under the law of Limitation. 21. learned Counsel further submitted that there is nothing on the record to show that the order of attachment was given effect to and in any event as the appellant was not a party to the said proceeding under Sec. 145 of the Code of Criminal Procedure, he was not bound by the said order. Learned Counsel in support of the aforesaid contention relied upon Deo Kuer and Anr. V/s. Sheo Prasad Singh and Ors. and in Government of India V/s. Citedal Fine Pharmaceutical Madras and Ors. 22. It was next contended that even if it be held that the lands in suit being under attachment, the suit would not be governed by Article 65 of the Limitation Act, it should be held that the same would come within the purview of Article 113 of the Limitation Act, 1963. 23. 22. It was next contended that even if it be held that the lands in suit being under attachment, the suit would not be governed by Article 65 of the Limitation Act, it should be held that the same would come within the purview of Article 113 of the Limitation Act, 1963. 23. learned Counsel also drew my attention to the paragraphs 46 and 47 of the judgment of the Court of appeal below and paragraphs 21, 22 and 29 of the judgment of the learned trial Court and submitted that both the Courts below have miconstrued and misinterpreted the provisions of Sec. 90 of the Evidence Act for the purpose of holding that Ext. A was admissible in evidence and farther misdirected itself in relying upon Ext. 12 for the purpose of proving the ownership and possession of the plaintiff. learned Counsel further submitted that in any event, the order of attachment of the petitioner was by itself not sufficient unless and until was shown that the lands in question were, in attached. 24. It was also submitted in any event as the plaintiffs were not in possession of the land in question after the order of attachment, the land must be held to have vested in the State of Bihar. 25. In view of the rival contentions of the parties, as noticed herein before the substantial questions of law with regard to the suit being bad for non-payment of court fee, does not subsist inasmuch as noticed hereinbefore. The learned Counsel appearing on behalf of the respondents have given up the claim with regard to the reliefs B and C of the plaint. In this view of the matter, the following substantial questions of law arise for consideration in this appeal: (A) Whether in the facts and circumstances of this case, the plaintiff can be said to have acquired title by adverse possession in view of the fact that they themselves pleaded that they came in possession of the lands in question upon obtaining permission of the their landlord and in view of the fact that the lands had been under attachment purported to under an order passed under Sec. 146 of the Code of Criminal Procedure since 31-5-1976? (B) Whether in view of the enquiry of the lands in suit as Kaisar-e-Hind in the Municipal Survey Record of Rights as a holding within the meaning of the provisions of the Bihar and Orissa Municipal Act, the lands in question can be said to have been saved from vesting under the provisions of Bihar Land Reforms Act, 1950. (C) Whether the suit was barred under proviso appended to Sec. 34 of the Specific Relief Act, 1963 ? Re: Questions A and B: 26 There cannot be any doubt that the pleadings have to be read as a whole. It may also be true that in a given case the court may not insist upon rules of pleading, if the parties had gone to trial knowing fully well the issues technical involved in the case and adduce their evidences in support of their respective cases. 27. So far as pleading of adverse possession is concerned, the same stands on a bit different footing. A long possession does not necessarily constitute adverse possession. Before a person can acquire title prescription, he must not only show that he had been in possession of the lands for a period of 12 years but also must show that his possession was adverse to the interest of all concerned in open assertion of his own right. 28. A person who sets bis foot on the land in question upon obtaining permission from the true owner, in law, cannot acquire title be adverse possession. In other words, a permissive possession cannot give rise to adverse possession. Reference, in this connection, may be made to S. M. Karim V/s. Mst, Bibi Sakina -- and in Smt. Sandhya Rani Dutta V/s. Shri B. N. Singh, (1990) (1) PLJR 6. 29. In paragraph 8 of the decision of the Supreme Court in Kshitish Chandra Bose V/s. Commissioner of Ranch -- upon which strong reliance has been placed by Mr. Debi Prasad, it has been held: All that the law requires is that the possession must be open and without any attempt of concealment. It is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner. 30. In that case, however, the fact of the matter was subsolutely different. In that case the plaintiff pleaded in paragraph Nos. It is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner. 30. In that case, however, the fact of the matter was subsolutely different. In that case the plaintiff pleaded in paragraph Nos. 6, 7, 8, 9, 15, 17 and 19 of the plaint that they have been in possession of the lands in suit in the manner stated therein. It was also alleged that there are sufficient materials on record to show that the plaintiff of that case had been asserting hostile title against Municipality and even a notice to that effect had been issued in 1953 and in a criminal case the plaintiffs possession was found. It was also found as of fact that the plaintiff had let out the land for cultivating purpose and used the same himself without any objection from the defendants thereof. 31. In this case, however, although in some paragraphs of the plaint the plaintiff casually stated that their possession was adverse but it cannot be ignored that the definite case of the plaintiff was that with implied consent of the ancestor of defendant No. 5, the land in question was occupied and religious functions of the Math was being held. Such a possession was a permissive possession in also evident from Ext, A upon which strong reliance has been placed by the plaintiff himself. Further the plaintiff has made out an inconsistent and contradictory case inasmuch as whereas in paragraph 4 of the plaint, was stated that the ancestors of the plaintiff came in possession over the lands in question with implied consent of the ancestor of defendant No. 5, but in paragraph 21 of the plaint, it has been stated that the ancestor of the defendant No. 5 had given the land to Naga Baba Math. In evidence, the plaintiff stated that the ancestors of the defendant No. 5 made grant to his ancestor in respect of the land in question which fact was not pleaded. Further the plaintiff in paragraph 10 of the plaint alleged that the defendant No. 4 (Ranchi Municipality) had been claiming the lands in question by reason of acquisition thereof under the Land Acquisition Act. Such a claim was made by the Ranchi Municipality as far back as in 1925. Further the plaintiff in paragraph 10 of the plaint alleged that the defendant No. 4 (Ranchi Municipality) had been claiming the lands in question by reason of acquisition thereof under the Land Acquisition Act. Such a claim was made by the Ranchi Municipality as far back as in 1925. Admittedly, there has been dispute with regard to possession between the plaintiff, the Ranchi Municipality and others. The possession of the plaintiffs, predecessor was not found by any court of law in any proceeding. 32. The possession of the plaintiffs ancestor was not even decided in a proceeding under Sec. 145 of the Code of Criminal Procedure and admitted-ly the lands in question were attached under the provisions of Sec. 146 of the Code of Criminal Procedure in 1926. It is beyond anybodys comprehension that although the ancestor of the plaintiff had been claiming the lands in question as having been acquired an indefeasible title thereto but despite the same a civil suit was not filed after an order of attachment was passed. It is further admitted that even in the Municipal Survey the land in question was not recorded either in the name of the plaintiff or in the name of the Ranchi Municipality, but was recorded as Kaisar-E-Hind as per order passed on 4-10-1989. Of course in the remarks column of the said record of rights, it has beep mentioned that the lands had been attached. 33. Rule 125 (c) of the Technical Rules of the Settlement Deparatment (Vol. 1) reads as follows: Where the land in the property of or in the occupation of Government the entry in column 4 will be Kaisar-E-Hind. This entry will be made even where the tenant or landlord has encroached on portion of a Government road. The area encroached on will be plotted separately from the rest of the road, but will be entered in the Kaisar-E-Hind khatian, the name of the person actually in possession being record in column 12 against the plot concerned. The same principle will be followed in preparing the khatian of the District or Local Board" The lands in suit was, therefore, recorded as being belonging to the State. 34 Further, in the Municipal Survey, it was recorded as a holding under the Bihar and Orissa Municipal Survey Act. The same principle will be followed in preparing the khatian of the District or Local Board" The lands in suit was, therefore, recorded as being belonging to the State. 34 Further, in the Municipal Survey, it was recorded as a holding under the Bihar and Orissa Municipal Survey Act. As the land was recorded in the name of the Government and not in the name of Ranchi Municipality or the plaintiffs predecessor-in-interest as far back as in 1929; even assuming that the predecessors-in-interest of the plaintiff acquired title by prescription earlier, it was obligatory on their part to file a suit for correction of the entry within a period of 12 years from the date of final publication thereof, as by reason of the said entry, the plaintiffs title came under a cloud. Further neither any objection was filed at the time of survey settlement operation nor any civil suit was filed for declaration of title by the plaintiff or his predecessor-in-interest. 35. In the proceeding under Sec. 145 of the Code of Criminal Procedure, the State was not a party. The order of attachment was, therefore, not binding upon the State. Further there is nothing to show that the procedure required for the purpose of effecting a valid attachment had been followed. Before an order of attachment becomes binding on everybody, all the requirements of law for effecting valid attachment of land must be followed. 36. It is now well known that there is a marked distinction between an attachment of properties under the Code of Civil Procedure and an attachment under the Code of Criminal Procedure. The purpose of the attachment by civil court under the Code of Civil Procedure is a preliminary step to be taken to make the properties available for sale for satisfaction of the decree. The Magistrate acting under Sec. 145 of the Code of Criminal Procedure (New) which is substantially in pari materia with the provision of attachment as it existed prior to Code of Criminal Procedure (Amendment) Act, 1955 has nothing to do with the title of the property in dispute and he is concerned with maintaining actual possession with a view to prevent breach of the peace. 37. A Magistrate attaching the properties in proceeding is under a legal obligation to make the property in custodia legis either by appointing a receiver or some other agent to look after it. 37. A Magistrate attaching the properties in proceeding is under a legal obligation to make the property in custodia legis either by appointing a receiver or some other agent to look after it. Indeed, if he does not follow the said procedure, he would be failing in his duty. 38. It is further well known that an order of attachment become effective either by taking actual possession or by making explicit order prohibiting the parties from going upon the land which is to be served upon them or by deli very of possession to a receiver appointed by the court and until then, the property does not become custodia legis. 39. In Kailash Singh and Ors. V/s. Mahabir Pandey AIR 1973 Pat. 44, a Division Bench of this Court stated the law thus: We do not consider it necessary to go into the question whether the proceeding under Sec. 145 of the Code of Criminal Procedure which was drawn up on the 29th of March, 1957 should be treated as non-existent in law on the ground that it was not signed by the Magistrate inasmuch as we are of the view that Mr. Prasad is right in his second submission that there was no legal attachment and the property, therefore, was not in custodia legis as held by the two courts below. In support of his contention Mr. Prasad has relied on the decision in State of Vindhya Pradesh V/s. Ram Lakhan AIR 1953 Vindh Pra. 25; Atar Khan V/s. The State AIR 1960 Assam 109 and Mukhdeo Singh V/s. State of Bihar, 1962 BLJR 405. All these decisions are of single Judges. In Mukhdeo Singhs case Anant Singh, J. following the aforesaid two decisions of Vindhya Pradesh and Assam High Courts and also some other decisions held that mere order of attachment made by the Magistrate on the order sheet is not sufficient to assume that the land in fact has been attached in the sense that the property has become custodia legis. He further held that the land in dispute had to be taken possession of either by taking actual possession or at least by making an explicit order prohibiting the parties from going upon the land. We respectfully agree with the view taken by the learned Judge. 40. In this case, the order of attachment dated 31-5-1926 (Ext. He further held that the land in dispute had to be taken possession of either by taking actual possession or at least by making an explicit order prohibiting the parties from going upon the land. We respectfully agree with the view taken by the learned Judge. 40. In this case, the order of attachment dated 31-5-1926 (Ext. 10/1) reads thus: The Ranch Municipality is declared to be in possession of the well standing within the disputed land and the other parties are prohibited from disturbing that possession in any way. The lands are however attached under Sec. 146, Cr. P. C. as I am not satisfied which of the parties is entitled to possession. Parties will bear own costs. 41. It is, therefore, clear that as the well which was within the properties in dispute was declared to be in possession of the Municipality which became final and binding upon the parties. It is also evident that neither any receiver nor any agent was appointed by the Magistrate in relation to the properties nor the parties were prohibited from going upon or near the properties in dispute. The purported order of attachment dated 31-5-1926 is, therefore, wholly illegal and without jurisdiction. In that view of the matter, it must be held that there was no valid order of attachment. It is further evident from the aforementioned order-sheet that the properties were not directed to be attached till the possession of the parties is declared by a competent court. 42. Before 1955 the proceeding for attachment under Code of Criminal Procedure was short and simple. If the Magistrate decided that none of the parties was in possession or if he was unable to satisfy himself as to which party was in possession, then he had the power to attach the property "until a competent court has determined the rights of the parties thereto. The amendment of 1935 introduced a novel scheme whereby, in such a case besides attaching the properties, the Magistrate has to draw up a statement of facts of the case and forward the records of the proceeding to a competent civil court, for deciding the question of possession. Under the present Sec. 146 of Code of Criminal Procedure, however, former position has been restored, subject of course, to an additional power of the Magistrate to attach the property in case of an emergency. 43. Under the present Sec. 146 of Code of Criminal Procedure, however, former position has been restored, subject of course, to an additional power of the Magistrate to attach the property in case of an emergency. 43. In this case, another aspect of the matter cannot be ignored. Admittedly, the properties belonged to Chotanagpur Raj. A Khorposh grant was created in respect of the lands in question alongwith some other village by the then owner of Chotanagpur Raj in favour of his sons. Such a grant was grant in tenure right which is evident from the fact that the name of successor-in-interest of grantee Kundannath Sahdeo was recorded in Khewat No. 2 which shows interest of tenure holding the land immediately below the owner of the Estate whose rights are recorded in Khewat No. 1. It is the case of the plaintiff that Rule of (sic ?) in the matter of succession was prevalent, in the Chotanagpur Raj. 44. It is also not in dispute that the estate of Chotanagpur Raj vested in the State of Bihar under the provisions of Bihar Land Reforms Act, 1950 . The lands under Khewat No. 2 being, thus, belonging to the tenure holder," thus also vested in the State of Bihar. 45. In terms of provisions of Bihar Land Reforms Act only the interest of Raiyats and Under-Raiyats are saved from vesting. 46. Secs. 5, 6 and 7 of the said Act, however, carve out an exception with regard to vesting of the land absolutely in the State of Bihar inasmuch as the said provisions contemplated that in the event the ex-intermediary or tenure holder had been in Khas possession of the land on the date of vesting in relation to homestead land, the same would be saved under Section 5 in respect of the agricultural land, the same would be saved under Section 6 and in respect of Golas, Factories or Mills the same would be saved under Sec. 7 of the Act. It is, therefore, not in dispute that the lands under Khewat No. 2 vested in the State of Bihar under the provisions of Bihar Land Reforms Act, 1950. 47. It is, therefore, not in dispute that the lands under Khewat No. 2 vested in the State of Bihar under the provisions of Bihar Land Reforms Act, 1950. 47. It is not and could not have been the case of the plaintiff that on the date of vesting either the ancestors of defendant No. 5 and the ancestors of the plaintiff had been in khas possession of the land in question inasmuch as on their own showing the lands in suit being under attachment and thus custodia legis. 48. Khas Possession as defined under Sec. 2(k) of the Bihar Land Reforms Act has a definite connotation which reads as follows: 2(k) Khas possession used with reference to the possession of a proprietor or tenure-holder of any land used for agricutural or horticutural purposes means the possession ot such proprietor or tenure holder by cultivating such land or carrying on horticultural operations thereon himself with his own stock or by his own servants or by hired labour or with hired stock: Explanation--"Land used for horticultural puposes" means land used for the purposes of growing fruits, flowers or vegetables. 49. However, in cases, where the provisions of Secs. 5 and 6 of the Bihar Land Reforms Act, 1950 are attracted by reason of a legal fiction created, the erstwhile proprietor, intermediary or tenure holder becomes a tenant of the State of Bihar, subject to the conditions laid down therein. 50. In this case, as the plaintiff or the defendant No. 5 had not been in possession of the land in question far less in Khas possession and thus the question of applicability of Secs. 5 and 6 of the Bihar Land Reforms Act in the facts and circumstance of the case, does not arise. 51. In Suraj Ahir and Ors. V/s. Prithinath Singh and Ors. 1963 BLJR 1, the Supreme Court held as follows: Reliance was placed by the High Court on the case reported as Brij Nandan Singh V/s. Jamuna Prasad of the construction put on the expression khas possession to include subsisting title to possession as well and therefore for holding that any proprietor, whose right to get khas possession of the land is not barred by any provision of law, have a right to recover possession and that the State of Bihar shall treat him as a raiyat with occupancy right and not as a trespasser. We do not agree with this view when, the defintion of khas possession means the possession of a proprietor or tenure-holder either by cultivating such land himself with his own stock or by his own servants or by hired labour or with hired stock. The mere fact that a proprietor had a subsisting title to possession over certain land on the date of vesting would not make that land under his khas possession. 52. In Gurucharan Singh V/s. Kamla Singh and Ors. -- the Supreme Court observed: The full proprietors khas possession is also not disturded. Certainly, the large land holders, whose lands have for long been tenancy, lose their lands to the State by virtue of the vesting operation (of course, compensation is provided for). Nevertheless, the reform law concedes the continuance of a limited species of interest in favour of those Zamindars. The three classes of lands is brought into the saving bucket by including them in the Khas possession of the proprietors. They are legislatively included in khas possession by an extended itemisation in Sec. 6 (1). The purpose and the purport of the provisions is to allow the large land holder to keep possession of small areas which may be designated as the private or privileged or mortagaged lands traditionally held directly and occasionally made-over to others, often servants or mothers in the shape of leases or mortgages. The crucial point to remember is that Sec. 3 in its total sweep, transfers all the interest in all lands to the State, the exception being lesser interests under the State set out in detail in Secs. 5, 6 and 7. The Supreme Court while considering the meaning of the word khas possession used in Sec. 6 of the Act held that khas possession is actual possession, that is "a foothold on the land, an actual entry, a possession in facts, a standing upon it, an occupation of it, as a administrative act done". With regard to the constructive possession, the Supreme Court states: Constructive possession or possession in law is what is covered by the Sub-clause (1) of Sec. 6. Even so, it is impossible to conceive, although Shri Mishra wanted us to accept, that possession is so wide as to include a mere right to possess, when the actual domination over the property is held by one in hostility to the former. Even so, it is impossible to conceive, although Shri Mishra wanted us to accept, that possession is so wide as to include a mere right to possess, when the actual domination over the property is held by one in hostility to the former. Possession, correctly understood, means effective, physical control or occupation. "The word possession is sometimes used inaccu-retely as synonymous with the right to possess. (words and Pharases, 2nd Edn. John B. Sounders, p. 151). "In the Dictionary of English Law (Earl Jowitt) 1959 at p. 1367 Possession is defined as follows; possession; the visible possibility of exercising physicial control over a thing, coupled with the intention of doing some either against all the world, or against all the world except certain persons. (Underlining is mine for emphasis) In that case, the Supreme Court further observed that a trespassers possession cannot be said to be a possession on behalf of the owner. 53 However, as noticed hereinbefore, in this case, admittedly, the plaintiffs predecssors-in-interest did not possess the land in question after the purported order of attachment was passed. 54. In paragraph-4 of the plaint, it has clearly been stated: That soon after Mahant Manchar Dasjee founded the Math commonly known as Naga Baba, Mahant Manchar Dasjee with implied consent of defendant No. 5 occupied triangular piece of land and began to use the said piece of triangular land for performance of the religious function of the Math and other purposes connected therewith and exercise all act of possession and ownership over the said land to the knowledge of the ancestors of defendant No. 5 and all concerned. The said land became and is the property of the Mahant of the Naga Baba and the Math. 55. Evidently, therefore, the land in question was not being used either for homested purpose or for agricultural purpose. Even if it be assumed that the plaintiff acquired title by adverse possession, it was incumbent upon it to show that the lands were saved from vesting under the Land Reforms Act. 56. There is yet another serious lacuna in the suit. Admittedly, the lands in question were recorded in the Municipal Survey record of rignts as Katsar-E-Hind i.e. the same belonged to the Government. The appellant in his written statement has cleary stated that the lands in question belongs to the State. 56. There is yet another serious lacuna in the suit. Admittedly, the lands in question were recorded in the Municipal Survey record of rignts as Katsar-E-Hind i.e. the same belonged to the Government. The appellant in his written statement has cleary stated that the lands in question belongs to the State. The State of Bihar, however, was not impleaded as a party to the suit. If the plaintiff wanted to dislodge the claim of the State it was obligatory on his part to make the State of Bihar a party and in its absence the suit could not have been effectively adjudicated. 57. It is true that the defendants in their written statement did not specifically raise a plea of vesting of the suit lands under the Bihar Land Reforms Act. In Paragraph-4 of the additional written statement, however, it has been stated: That Kaiser-E-Hind has been recorded as owner and occupier of the land in suit in 1929 and the Govt. is the owner and is in possession since a long time openly without any objection at any time and the plaintiff is not entitled to any injunction for such a long time. 58. In paragraph 5 of the written statement, the defendants definitely stated that the State of Bihar was a necessary party to the suit land and, that, the suit was bad for non-joinder of necessary party. 59. In paragraphs 16,18,23 and 24 of the written statement the defendant No 1 clearly asserted the right of the State of Bihar in respect to the land in suit. The defendant No. 1 had further denied and disputed the title and possession of the plaintiff in or over the suit land. 60. Both the Court below proceeded to decide the question of possession as to whether the parties has been in possession of the lands in question prior to 1926 or not. The learned courts below committed a serious error of law in so far as they failed to take into consideration that it is not possible for the State authorities to prove their possession prior to 1926 by adducing any direct evidence in that regard. The learned courts below committed a serious error of law in so far as they failed to take into consideration that it is not possible for the State authorities to prove their possession prior to 1926 by adducing any direct evidence in that regard. The learned courts below failed to take into conside Tation that even assuming that the plaintiffs case was based on possession in terms of Article 65 of the Limitation Act, it was obligatory on the part of the plaintiff to prove the requirement thereof inasmuch as it is not the contention of the plaintiff that his ancestors obtained title by reason of any grant made by the ex-tenure holder. The learned courts below also failed to take into consideration on that in view of insertion of Articles 64 and 65 of the Limitation Act, 1963, the burden of proof has clearly been placed upon a person who bases his suit only on possession. However, in this case, as the plaintiff admittedly was not in possession of the suit land on the date of institution of the suit; the suit could be decreed only on establishment of its title. 61. It was also, thus, obligatory on the part of the plaintiff to prove subsisting and better title than the defendants as admittedly they were in possession the learned courts below further failed to take into consideration the intervening events, namely, the effect of coming into force of the Bihar Land Reforms Act. 62. In any event, possession of land for holding religious functions is not the purpose contemplated under Secs. 5, 6 and 7 of the Bihar Land Reforms Act. The same would, therefore, constitute an encumbrance. 63. In Dwarika Prasad V/s. The State of Bihar, 1964 BUR 66, it has been held; In a general sense the word incumbrance would include any burden on property, any right or interest created by the owner in limitation of his own and that was the sense in which the term was used, for example, in Section. 161 of the Bengal Tenancy Act. In that case, it was held that right of fishery is an encumbrance. 64. Further, the scheme of Bihar Land Reforms Act, 1950 and Rules framed thereunder postulates vesting of a property belonging to a religious trust also (See Secs. 21 and 33 and Rules 25A, 25B and 25C of the Bihar Land Reforms Act). 65. In that case, it was held that right of fishery is an encumbrance. 64. Further, the scheme of Bihar Land Reforms Act, 1950 and Rules framed thereunder postulates vesting of a property belonging to a religious trust also (See Secs. 21 and 33 and Rules 25A, 25B and 25C of the Bihar Land Reforms Act). 65. It is true as has been submitted by Mr. Debi Prasad that in a case where there is a valid order of attachment, Article 47 of the Limitation Act, 1908 which is equivalent to Article 65 of the Limitation Act, 1963 would not apply. 66. In view of my findings aforementioned that there has been no valid order of attachment and further in view of the fact that the lands in question were recorded in the Municipal Survey Settlement Record of Right in the name of the Government (State of Bihar), is was obligatory on the part of the plaintiff and/or his predecessor-in-interest to file a suit within the period of 12 years, if not, from the date of the purported order of attachment passed in the year 1926 (Ext. 10/a) but at least from the final publication of the Record of Rights. 67. It is, therefore, evident that the plaintiff having failed to prove his subsisting title on the lands in question, the suit was liable to be dismissed. 68. As noticed hereinbefore, the matter relating to vesting was, although not specifically been pleaded, the same being a matter of law, in my opinion, the same can be taken into consideration by this Court, particularly, in view of the fact that after 1926 i. e. after the purported order of attachment was passed, the plaintiff or his ancestors admittedly was not in possession of the land in question. This Court even in Second Appeal is bound to consider the effect of a statute if the facts are not disputed. 69. In Dwarika Nath Choudhary and ors. V/s. Shashtl Kinkar Banerjee and Ors. (18 Indian Cases pages 869) upon which strong reliance has been placed by Mr. Debi Prasad, the fact of the matter was completely different. In that case, the plaintiff and the defendant had been holding the land by mutual consent as part of their joint state for a period of 12 years in ignorance of their rights. (18 Indian Cases pages 869) upon which strong reliance has been placed by Mr. Debi Prasad, the fact of the matter was completely different. In that case, the plaintiff and the defendant had been holding the land by mutual consent as part of their joint state for a period of 12 years in ignorance of their rights. In such a situation, invoking Articles 142 and 144 of the Limitation Act, 1908, it was held that the suit for exclusive possession of the plaintiff would be barred. It was, therefore, not a case that the defendant came in possession with consent of the true owner but with consent of a person who had no right in relation thereto. In this case admittedly the plaintiffs predecessor came in possession of the suit lands with the consent of the then owner. This decision however cannot have application after coming into force of the Limitation Act, 1963. Further, the aforementioned decision appears to be in direct conflict with the decision of the Supreme Court in S. M. Karim V/s. Mst. Bibi Sakina -- in which it was observed; Adverse possession must be adequate in continuity, in publicity and extent and a plea required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did and a mere suggession in the relief clause that there was an uninterrupted possession for several 12 years or that the plaintiff had acquired an absolute title was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. 70. Similarly in AIR 1990 Patna 113, the aforementioned aspect of the matter was not considered at all. Further, in this case, admittedly the defendant No. 1 is in possession of the land in question. 71. In terms of Sec. 110 of the Evidence Act, it must be held that possession follows title. The plaintiff admittedly had not been in possession for a long time. It was, therefore, not a case where the plaintiff alleges that he had been dispossessed by the defendant. 71. In terms of Sec. 110 of the Evidence Act, it must be held that possession follows title. The plaintiff admittedly had not been in possession for a long time. It was, therefore, not a case where the plaintiff alleges that he had been dispossessed by the defendant. Only in such a situation, the courts have held that a decree on the basis of possessory title can be granted where both the parties fail to prove their respective title. In this case, the record of rights stands in the name of the State, It is true that a record of right is not document of title but the same alongwith the provisions of the Bihar Lard Reforms Act leads to only one conclusion that the land in suit belonged to the State of Bihar. In 1 hat view of the matter, the question of grant of any decree on the basis of possessory title does not arise. Re: Question (c) 72. It has been found by the learned courts below that an order of attachment was passed by the S". D. O. in the year 1926. 73. In Maharaja of Venkatagiri V/s. Ambarkant Srtvastava Row, AIR 1916 Mad 507, it has been held that an order of attachment of property under Sec. 146 remains in force until withdrawn, but it is the duty of the Magistrate to withdraw it and release the attachment as soon as it is brought to his notice that a comptent court has determined the rights of the parties thereto or of the person entitled to possession. 74. In Alagarswami Thewan and Ors. V/s. Rambndra Naidu Garu AIR 1929 Madras 36, it has been held that where the property is in custodia legis i. e. at the hands of the receiver, a mere suit of his declaration of title to the properties is maintainable. 75. In Jurawan V/s. Ramsarekh, reported in AIR 1933 Patna 224, a division bench of this Court has held that in case of continuing wrong, in view of Sec. 23 of the Limitation Act, 1908, the right to sue runs from moment to moment so long as attachment lasts and a suit for declaration of title cannot be held to be barred by lapse of six years on an order passed by a magistrate u/s 145 of the Code of Criminal Procedure. In that case also a receiver was appointed. 76. In that case also a receiver was appointed. 76. In Ghamandi Misser y. Jagarnath Misser and Ors reported in AIR 1938 Patna 212, a learned single judge of this Court followed Jhurawan Singhs case (supra). In Madhorao Raghunath by Guardian Mt. Mankarnikabai and Anr. V/s. Amirkhan Namdarkhun, reported in AIR 1943 Nagpur 246, it was held that when in case of attachment 3rd parties are injured, when the court takes possession: they have only two remedies; i. e. (a) they can apply to the criminal court to withdraw the attachment on the ground that no fear of breach of the peace exists any longer or else (b) they can file a suit to establish that they are the persons entitled to possession. 77. In this case there is nothing on the records to show that the court had actually taken possession of the lands in question after the order of attachment was passed. 78. Mr. Debi Prasad, the learned Counsel appearing on behalf of the plaintiff respondent No. 1, when questioned, conceded to this aspect of the matter and merely submitted that the order of attachment as also the remarks column of the Municipal Parcha clearly show that the lands were under order of attachment. But the learned Counsel could not point out as to whether actual possession of the lands in question had been taken by the court or not. As this aspect of the matter has been dealt with earlier, the same may not be reiterated over again. 79. In Smt. Pentapati Venkatratnam and Ors. V/s. Kari Venkatanarsayamma and Ors. -- , it has been held that where an order passed under Sec. 145 of the Code of Criminal Procedure is final, no such finality is attached to order under Sec. 146 of the Code of Criminal Procedure, It was held: Under that provision as it stood before the amendment of 1955, if the magistrate is unable to decide as to which of the disputants was then in possession of the subject of dispute, or if he decides that none of the parties was then in such possession, it is open to him to attach the property until a competent court has determined the rights of the parties thereto or the person entitled to possession thereof. 80. In Smt. Kuleshwari Devi and Ors. V/s. Mosamat Jagdamba, 1987 PLJR 70, the facts were different. 80. In Smt. Kuleshwari Devi and Ors. V/s. Mosamat Jagdamba, 1987 PLJR 70, the facts were different. In that case, it was held that right to sue for possession accrues only after the final order is passed under Sec. 145 of the Code of Criminal Procedure and not from the date when preliminary order under Section 145(1) of the Code of Criminal Procedure is passed. 81. In Deo Kuer and Anr. V/s. Sheo Prusad and Ors. -- , it has been held that while the property is under attachment, the suit for declaration of title is maintainable and such a suit is not hit by proviso to sec. 42 of the Specific Relief Act, 1877. 82. In view of the decisions, as noticed hereinbefore, there cannot be any doubt that when the property is in custodla legis, the suit for mere declaration is maintainable and the same would not barred under the proviso to Sec. 34 of the Specific Relief Act, 1963 . 83. Reliance placed by Mr. Eqbal in Government of India V/s. Citedal Fine Pharmaceutical Madras and Ors. -- is wholly misplaced. In that case, the Supreme Court was considering an application under Article 226 of the Constitution of India and in thatcontext it was held that the application must be fild within a reasonable time, the aforementioned proposition of law cannot apply in a suit. 84. There cannot be any doubt that when the land is under order of attachment mere suit for declaration of title suffice and in such a suit, the plaintiff is not required to pray for any consequential relief. 85. However, in this case, there has been no valid order of attachment as the properties in suit was not in custodia legis and in view of the fact that plaintiff himself admitted that he had not been in possession of the land as in the date of the institution of the suit, he was bound to pray for consequential reliefs in terms of the proviso appended to Sec. 34 of the Specific Relief Act. 86. Before parting with this case, one of the submissions of Mr. Debi Prasad that this Court should not interfere with the concurrent finding of fact may be considered. 87. There cannot be any dispute with the proposition of law that this Court in Second Appeal should not interfere with the concurrent findings of the fact. 86. Before parting with this case, one of the submissions of Mr. Debi Prasad that this Court should not interfere with the concurrent finding of fact may be considered. 87. There cannot be any dispute with the proposition of law that this Court in Second Appeal should not interfere with the concurrent findings of the fact. In Smt. Gitarani Paul Dibyendra Kundu alias Dibyendra Kumar Kundu -- , upon which Mr. Devi Prasad strongly relied upon, the High Court did not disturb the concurrent finding of the Court below but despite the same held that as the actual date of dispossession was not specifically mentioned in the plaint, the suit for possession was not competent. 88. In that case, the title of the appellant was proved and thus the Supreme Court held that the plaintiff was entitled to a decree for possession. The Supreme Court accordingly observed that the High Court fell into error in ignoring the concurrent findings of the Courts below and accepting the appeal on an issue which was neither raised nor argued before the courts below. Such is not the position here. 89. In Kshitish Chandra Bose V/s. Commissioner of Ranchi -- , the Supreme Court reversed the judgment of the High Court as it reversed a pure concurrent finding of facts arrived at by the trial court and the appellate court both on question of title and adverse possession. In that case the Supreme Court held that both the courts approached the evidences with correct and perspective view in arriving at a concurrent finding of fact which, thus, could not have been interfered with in Second Appeal. In this case, however, findings of the courts below are being set aside on pure questions of law touching the jurisdiction of the Court and as also maintainability of the suit itself. 90. In this case, the learned courts below did not at all apply their minds to the relevant issues nor did they try to acquaint themselves with the questions of law involving the same and thus they must be held to have misdirected themselves in law. 91. In Madan Lal V/s. Smt. Gopi and Anr. 90. In this case, the learned courts below did not at all apply their minds to the relevant issues nor did they try to acquaint themselves with the questions of law involving the same and thus they must be held to have misdirected themselves in law. 91. In Madan Lal V/s. Smt. Gopi and Anr. -- , it was held: This, substantially, is a question of fact but we find the trial court and the District Court wholly ignored the weight of preponderating circumstances on the record and allowed their judgments to be influenced by inconsequential matters. The High Court was, therefore, justified in reappreciating the evidence and in coming to its own independent conclusion on the basis of that evidence. 92. Yet recently in M\s. Dutta Cycle Stores and Ors. y. Smt. Gita Devi Sultania and Ors. 1990 (1) PLJR 36 (SC), the Supreme Court itself considered the evidence on record and held that as the courts below did not appreciate that adduced by the defendants evidences were staring in the face of the records and there was total absence of evidence on the side of the plaintiffs to contradict the defence evidence, the Supreme Court set aside the judgment passed by the courts below including the High Court. In view of my findings aforementioned all the substantial questions of law must be answered in favour of the appellant. 93. For the reasons aforementioned, the judgment and decree passed by the learned courts below cannot be sustained. In the result, this appeal is allowed and the judgment and decree passed by the courts below are set aside. 94. However, in the facts and circumstances of the case, there will be no order as to costs.