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2000 DIGILAW 120 (HP)

BHAU RAM v. KAMLA DEVI ALIAS GOPI

2000-05-25

KAMLESH SHARMA

body2000
JUDGMENT Ms. Kamlesh Sharma, J.—Earlier decree and judgment dated 8.12.1995 passed by this Court has been set aside by the Supreme Court on the ground that paragraph 32 of Himachal Pradesh (Courts) Order, 1948 could no longer survive after the establishment of Himachal Pradesh High Court wherein Section 100 C.P.C. would be applicable for deciding second appeals and keeping in view the judgment of the Supreme Court in Kshitish Chandra Purkait v. Santosh Kumar Purkait and others, (1997) 5 SCC 438, directions have been issued to restore the appeal to its original number and redecide the same on merits after hearing the parties keeping in view the limited jurisdiction of the High Court under Section 100 C.P.C. 2. When this appeal was taken up on remand, it was pointed out that respondent No. 2, namely, Panu Ram had died in the meantime and the appellant was permitted to take steps for bringing on record his legal representatives. Ultimately by order dated 16.3.2000 passed in CMP (M) No. 599 of 1999, legal representatives of deceased respondent No. 2 Panu Ram were brought on record after condoning the delay for the sufficient cause shown in the application and also for the reason that the estate of deceased respondent No. 2 Panu Ram was represented by his wife respondent No. 1 Smt. Kamla Devi, who was already on record. Thereafter the appeal is heard on merits. 3. The appeal is directed against the decree and judgment dated 2.12.1987 passed by Additional District Judge (2), Shimla, whereby the appeal of the respondents-defendants was allowed and decree and decree and judgment dated 25.3.1985 of Sub Judge (I), Shimla was set aside as a consequence of which the suit of the appellant-plaintiff was dismissed on the point of limitation. The appellant is the legal representative of original plaintiff Reshmoo, who had died during the pendency of the appeal before the Additional District Judge. In the later part of the judgment this Court will refer Reshmoo as plaintiff. 4. This case has a chequered history. The dispute between the parties is in respect of the land measuring 9 bighas 9 biswas comprised in Khasra Nos. 55, 56, 66, 69, 71, 72, 75 and 77 situate in village Badhai, Pargana Jajoht, Tehsil and District Shimla (hereinafter called the land in dispute). 4. This case has a chequered history. The dispute between the parties is in respect of the land measuring 9 bighas 9 biswas comprised in Khasra Nos. 55, 56, 66, 69, 71, 72, 75 and 77 situate in village Badhai, Pargana Jajoht, Tehsil and District Shimla (hereinafter called the land in dispute). Admittedly, initially it was owned by Smt. Lari Mohan Singh alias Madna Wati and was in occupation of one Shankar Lai, who was inducted as a tenant. After coming into force the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereinafter called the Act), late Shri Shankar Lai applied for acquisition of proprietary rights under Section 11 of the said Act in respect of the land in dispute some time in January 1957, but he died during the pendency of his application. He was survived by his wife Smt. Reshmu, who filed an application for coming on record to pursue the said application, but failed. She challenged the order of the Compensation Officer in appeal before the District Judge, Mahasu, which was accepted and Smt. Reshmu was permitted to pursue the application for acquisition of proprietary rights. When that application was still pending, the owner of the land in dispute Smt. Lari Mohan Singh alias Madna Wati sold the land in dispute in favour of one Varinder Kumar, who was the original defendant in the suit and has died during the pendency of the suit and the respondents-defendants are his legal representatives. Respondent-defendant No. 2 Panu Ram was also originally impleaded as defendant No. 2. 5. The application of Smt. Reshmu was allowed by the Compensation Officer vide order dated 31st August, 1964. Feeling aggrieved, the vendee Varinder Kumar and his father Panu Ram in their capacity as owners of the land challenged the order dated 31st August, 1964 before the District Judge, but failed. Their further appeal against the judgment of the District Judge was also dismissed by the learned Single Judge of this Court in MSA No. 14 of 1967 on 25th April, 1977. 6. During the pendency of the application for acquisition of proprietary rights, one Reghunath Singh Thakur had filed a suit against Lari Mohan Singh alias Madnawati, Reshmu, Varinder Kumar and Panu Ram in the Court of Senior Sub Judge, Mahasu for recovery of a sum of Rs. 6. During the pendency of the application for acquisition of proprietary rights, one Reghunath Singh Thakur had filed a suit against Lari Mohan Singh alias Madnawati, Reshmu, Varinder Kumar and Panu Ram in the Court of Senior Sub Judge, Mahasu for recovery of a sum of Rs. 13,400/- and in the alternative for possession of certain properties of Lari Mohan Singh alias Madnawati including the land in dispute on the allegations that the said property was mortgaged with him as security for certain loan amount taken by Lari Mohan Singh alias Madnawati, and that since she had failed to return the loan amount, he was entitled to take the possession of the mortgaged property. The suit was resisted by all the defendants and the plea of Smt. Reshmu was that the mortgaged land (the present land in dispute) was in actual and cultivable possession of her late husband Shankar Lal as a tenant for which an application for transfer of proprietary rights under Section 11 of the Act was pending. As such, the plaintiff Raghunath Singh Thakur could only seek the decree of transfer of proprietary rights. On her defence, Issue No. 21 was framed that "whether there is any application of defendant No. 3 Smt. Reshmu before the Compensation Officer? If so, what is its effect?" Ultimately, the suit was decreed by decree and judgment dated 27.9.1965 by the Senior Sub Judge and the plaintiff Raghunath Singh Thakur was held entitled to take the possession of the suit land. Issue No. 21 was decided against Smt. Reshmu holding that there was no application for acquisition of proprietary rights pending before the Compensation Officer. The appeals against the decree and judgment dated 27.9.1965 were filed in the Court of Judicial Commissioner, Himachal Pradesh by the defendants including Smt. Reshmu, who had challenged the findings on Issue No. 21. Ultimately, the appeals were heard and disposed of by this Court vide judgment dated 7.10.1975 reported in A.I.R. 1976 H.P. 41 (Kanwarani Madnawati v. Raghunath Singh). The appeal (RFA No. 7 of 1966) of Smt. Reshmu was allowed by this Court by holding that "this application, it appears, was made in the year 1960 or thereabout and was decided by the Compensation Officer, Mahasu, on 31st August, 1964, granting proprietary rights to Smt. Reshmu on payment of Rs. 453.86 paise. The appeal (RFA No. 7 of 1966) of Smt. Reshmu was allowed by this Court by holding that "this application, it appears, was made in the year 1960 or thereabout and was decided by the Compensation Officer, Mahasu, on 31st August, 1964, granting proprietary rights to Smt. Reshmu on payment of Rs. 453.86 paise. Therefore, in the presence of this order it becomes crystal clear that late Shankar Dass was the tenant of the land and Smt. Reshmu succeeded to the tenancy rights after his death. From the copy of the jamabandi for the year 1956-57 it is established that the tenancy was created before 1956 in respect of this land. Even if the tenancy was created after the mortgage was effected Smt. Madna Vati was not precluded from creating tenancy of the mortgaged land. Under Section 65-A of the T.P. Act a mortgagor has the power to make leases of the land and which shall be binding on the mortgagee unless there is a condition in the mortgage deed to the contrary. The mortgage deed, Exhibit PA, does not contain any such condition, therefore, in my opinion, the tenancy shall be binding on the mortgagee. Now she has already acquired the proprietary rights in this land." 7. It was in this background that Smt. Reshmu filed the suit out of which the present appeal has arisen, for possession of the land in dispute on the allegations that she was forcibly dispossessed from the land in dispute by respondent-defendant No. 2 in the year 1965-66 during the pendency of her appeal in the High Court. According to her, the land in dispute had been in her cultivating possession since the death of her husband late Shankar Lal, for which she had become owner on the conferment of proprietary rights on her. She has also stated that since her appeal was pending in the High Court, she waited for its decision for filing the suit. As such, the cause of action had arisen to her in the year 1965-66 and thereafter on 7.10.1975 when her appeal was decided by the High Court. The respondents-defendants resisted the suit specifically stating that she was never in occupation of the land in dispute in any capacity. As such, the cause of action had arisen to her in the year 1965-66 and thereafter on 7.10.1975 when her appeal was decided by the High Court. The respondents-defendants resisted the suit specifically stating that she was never in occupation of the land in dispute in any capacity. It was specifically alleged that "her alleged claim of tenancy has been extinguished because she without any justifiable cause failed to cultivate her alleged tenancy ever since the death of her husband on 7.6.1960. In fact when defendant No. 1 purchased the land by means of a registered sale deed, he found that there was no one in cultivating possession thereof. The defendants have all along been in possession upto date in their own right. Defendant No. 1 planted an orchard on the suit land after having purchased the same as long as 18.10.1960." It was also averred that "the suit of the plaintiff is patently barred by time........In fact, the plaintiff has no cause of action whatsoever against the defendants who have, however, no objection as to the jurisdiction of this Honble Court." Replication was also filed by Smt. Reshmu. 8. On the pleadings of the parties, following issues were framed:— 1. What is the effect of the decision of the Compensation Officer and Appellate Authorities in the cases decided between the parties inter se to the present case? OPP. 2. Whether the suit of the plaintiff is within time? OPP. 3. Whether the plaintiff is liable to furnish better particulars? OPD. 4. Whether there is no cause of action, as alleged? OPD. 5. Whether the defendant No. 1 is a bona fide purchaser of the property in dispute, if so what effect? OPD. 6. Whether the husband of the plaintiff late Shri Shankar Lal was a non-occupancy tenant over the suit land under Smt. Madna Wati, if so to what effect? OPP. 7. Whether the plaintiff ever relinquished the tenancy of the suit land, as alleged? OPD. 8. Whether the suit has not been properly valued for the purposes of court fee? If not what is the proper time? OPD. 9. Whether the defendant No. 2 forcibly dispossessed the plaintiff from the suit land, as alleged? OPP. 9-A. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction, as alleged? OPD. 8. Whether the suit has not been properly valued for the purposes of court fee? If not what is the proper time? OPD. 9. Whether the defendant No. 2 forcibly dispossessed the plaintiff from the suit land, as alleged? OPP. 9-A. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction, as alleged? If so what is the correct valuation of the suit for the purpose of court fee and jurisdiction? OPD. 9-B.Whether the plaintiff is entitled to the vacant possession of the disputed land after demolition of all structures standing on the disputed property? OPP. 10. Relief. 9. Smt. Reshmu appeared as her own witness and produced and Budhi Singh, Kanungo as PW-2 to prove valuation of the land in dispute. On the other hand, respondents-defendants produced Chet Ram, DW-1, who has deposed from the revenue record that entry of possession in favour of the original defendant Varinder Singh was changed in the year 1960-61, but he was not able to state that how and under what orders, this change was given effect. Other witness Prem Sagar, DW-2, Tara Chand Tandon, DW-3 have been produced to prove the valuation of the buildings and plants standing on the land in dispute. Besides this oral evidence on record, Jamabandi for the years 1964-65, 1969-70 and 1974-75 are on record as Ex. PC, Ex. PB and Ex. DW-l/C and the Khasra Girdawaris for the years 1960-61 to 1964-65 and 1974-75 are Ex. P-l and Ex. DW-l/C. The judgment dated 14.12.1966 of the District Judge, Mahasu and the judgment dated 25.4.1977 are Ex. PD and Ex. PE. Other documents on record are not relevant for the purpose of this appeal. 10. Issues No. 1,2,6,8,9, 9-A and 9-B were answered in affirmative, whereas Issues No. 3 to 5 and 7 in negative. The suit was held within time relying upon the statement of Smt. Reshmu that she was dispossessed in the year 1965-66 and the findings of the District Judge in his judgment dated 14.12.1966 Ex. PD, Jamabandi Ex. DW-1 /C and the Khasra Girdawari Ex. DW-1 /B produced by the respondents-defendants in respect of their claim that they had acquired possession of the land in dispute some time in the year 1960-61 were rejected. PD, Jamabandi Ex. DW-1 /C and the Khasra Girdawari Ex. DW-1 /B produced by the respondents-defendants in respect of their claim that they had acquired possession of the land in dispute some time in the year 1960-61 were rejected. Finding that Smt. Reshmu was forcibly dispossessed in the year 1965-66, her suit was decreed for vacant possession of the suit land after demolishing all structures standing thereon. However, the decree passed in favour of the plaintiff was to be executed only on her payment of court fee of Rs. 41,500/ - within a period of 60 days. 11. The findings of the trial court had been upset by the Additional District Judge, who had framed the following points for determination:— 1. Whether the learned Sub Judge acted with illegality and in an arbitrary way in dismissing the application of the defendants for additional evidence? 2. Whether the suit out of which the present appeal has arisen had been filed within limitation? 3. Whether the plaintiff was a tenant within the meaning of H.P. Abolition of Big Landed Estates and Land Reforms Act and the proprietary rights had rightly been conferred upon her? 4. Whether the valuation of the house constructed by the defendants on the suit land is also required to be taken into account for the purpose of Court fee and jurisdiction? 5. Final order. 12. Before deciding the points framed in the appeal, the District Judge had allowed the application under Order 41, Rule 27, C.P.C. for additional evidence preferred by the respondents-defendants and the documents Ex. A-l to A-3 were brought on record to which the appellant-plaintiff did not raise any objection. From Ex. A-l and Ex. A-3 the respondents-defendants wanted to prove that Smt. Reshmu had filed a criminal complaint some time in March/May 1961 under Sections 447/504 of the Indian Penal Code against respondent-defendant No. 2 Panu Ram, which was dismissed on 19.1.1962. Document Ex. A-2 is copy of Goshwara, whereby the case file No. 39/13 pertaining to mutation proceedings initiated by Smt. Reshmu against Varinder Singh was destroyed. 13. The Additional District Judge has decided Points No. 1, 2 and 4 in negative and Point No. 3 in affirmative. Document Ex. A-2 is copy of Goshwara, whereby the case file No. 39/13 pertaining to mutation proceedings initiated by Smt. Reshmu against Varinder Singh was destroyed. 13. The Additional District Judge has decided Points No. 1, 2 and 4 in negative and Point No. 3 in affirmative. While deciding Point No. 1, the Additional District Judge has rejected the contention of the respondents-defendants that their prayer for additional evidence was wrongly rejected by the trial court by holding that they had ample opportunity to produce the evidence on all the issues. On Point No. 2, the learned Additional District Judge has come to the conclusion that the suit was not filed within the period of limitation. For coming to this conclusion, the Additional District Judge has relied upon the revenue record i.e .Khasra Girdawari for the period from Kharif 1961 to Rabi 1965, Ex. P-l and Jamabandi for the year 1964-65 Ex. PC and the alleged statement of Smt. Reshmu in cross-examination, that respondents-defendants had come in possession of the suit land soon after the attestation of mutation in their favour. On the appreciation of this evidence, the Additional District Judge has arrived at the findings that the respondents-defendants "occupied the suit land adversely to the plaintiff and thus they had been in adverse possession of the suit land for more than 12 years prior to the institution of the suit. Limitation for filing a suit for possession on the basis of title is 12 years from the date when the possession of the defendants becomes adverse to the plaintiff, per Article 65 of the Limitation Act." The plea raised on behalf of the plaintiff that the suit could not be filed because of the pendency of the appeals in the High Court did not find favour with the Additional District Judge, who has held that "there was no controversy either in those appeals or in the suit out of which those appeals had arisen with respect to the dispossession of the plaintiff by the defendants and, therefore, by no stretch of imagination can it be said that the plaintiff did not file any suit for the possession of the suit land because the appeals were pending in the Honble High Court. The plaintiff could not get the possession of the suit land back from the defendants on the strength of the result of the appeals which were pending in the Honble High Court and, therefore, she was not supposed to have waited for the result of those appeals before filing a suit for taking back the possession from the defendants. For returning his findings on point No. 3, the Additional District Judge has relied upon the judgment dated 25.4.1977 Ex. PE, whereby it was held that Smt. Reshmu in her capacity as wife of late Shankar Lal had inherited the tenancy rights and lateron acquired the proprietary rights in accordance with law. 14. On point No. 4, the Additional District Judge has held that since the suit was for possession of the vacant land after demolishing the house thereon and removing the Malba and not for the possession of the house, the appellant-plaintiff was not required to pay the court fee on the market value of the house. In view of the findings on point No. 2 the final order was passed, whereby the appeal was accepted and the suit of the appellant-plaintiff was dismissed, as barred by limitation. Hence, the present appeal. 14-A. At the time of admission following substantial questions of law were framed by order dated 27.4.1988:— "1. Whether the suit was instituted within the period of limitation? 2. Whether, on the facts and circumstances of this case, the learned, first appellate court was justified in holding that defendants-respondents had become owners of the suit land by adverse possession? 3. Whether the predecessor-in-interest of the appellant was in possession of the suit land as a tenant and she had become owner thereof? 15. This Court has heard learned Counsel for the parties and gone through the record. Learned Counsel for the respondent has vehemently urged that the above stated questions are not the substantial questions of law arising in the present appeal to interfere with the findings of fact arrived at by the Additional District Judge. 15. This Court has heard learned Counsel for the parties and gone through the record. Learned Counsel for the respondent has vehemently urged that the above stated questions are not the substantial questions of law arising in the present appeal to interfere with the findings of fact arrived at by the Additional District Judge. He has referred to the judgment of the Supreme Court in Dudh Nath Pandey (dead by L.Rs.) v. Suresh Chandra Bhattasali (dead by L.Rs.), AIR 1986 SC 1509, to submit that finding on the question of limitation recorded by the first appellate court on appraisal of evidence after taking into consideration the entire circumstances in the case is a finding of fact which could not be set aside by the High Court in the exercise of power under Section 100 C.P.C. Similarly, in respect of questions No. 2 and 3 the submission of the learned Counsel for the respondents is that the findings of the Additional District Judge do not call for any interference. He has referred to the judgments of the Supreme Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, (1999) 3 SCC 722; Arumugham (dead) by L.Rs. and others v. Sundarambal and another, (1999) 4 SCC 350 and M.G. Hegde and others v. Varudev D. Hegde, (2000) 2 SCC 213. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, the learned Judges have held that:— "......The conditions mentioned in the Section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this section. The substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this section. The substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314, held that:— "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question or law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey, (1976) SCC 803, held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference." 16. In Arumugham (dead) by L.Rs. and others v. Sundarambal and another (supra) the learned Judges by referring to the earlier judgment of the Supreme Court in Ramachandra Ayyar v. Ramalingam Chettiar, AIR 1963 SC 302, have held that it is open to the first appellate court to consider the evidence adduced by the parties and give its own reasons for accepting the evidence on one side or rejecting the evidence on the other side but it is not permissible for the second appellate court to interfere with such findings of the first appellate court only on the ground that the first appellate trial court had not come to grips with the reasoning given by the trial court. In M.G. Hegde and others v. Vasudev D. Hegde (supra), a very short judgment, the learned Judges have held that the words "prima facie perverse and error apparent on the face of the record" are not a "mantra" which can be employed to permit the High Court to do in a second appeal what the law enjoins it not to do. 17. On the other hand, the learned Counsel for the appellant has referred to the judgments of the Supreme Court in Sundra Naicka Vadiyar (dead) by LRs. and another v. Ramaswami Ayyar (dead) by his LRs., AIR 1994 SC 532 and Mohd. Yunus v. Gurubux Singh, 1995 Supp. (1) SCC 418, wherein the learned Judges have held that interference in second appeal is called for if documents, which are vital for deciding the point in issue, are ignored and there is gross mis-appreciation of the evidence which goes to the root of the matter. In an another judgment of the Supreme Court in Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, (1999) 6 SCC 343, the learned Judges after referring to line of their earlier judgments, have observed that where the High Court feels the need for examining the evidence to find out whether the findings of the lower courts were either perverse or not borne out by the record, it should refer to and discuss the evidence in detail and point out the fatal error committed by the lower courts in relation to their findings of fact. In a recent judgment in Ishwar Dass Jain (dead) through LRs. v. Sohan Lal (dead) by LRs., (2000) 1 SCC 434, after reiterating that under Section 100 C.P.C. it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so, it is observed in para 11:— "11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. This principle has been laid down in a series of judgments of this Court in relation to Section 100 CPC after the 1976 Amendment. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. This principle has been laid down in a series of judgments of this Court in relation to Section 100 CPC after the 1976 Amendment. In Dilbagrai Punjabi v. Sharad Chandra, 1988 Supp SCC 710, while dealing with a second appeal of 1978 decided by the Madhya Pradesh High Court on 20.8.1981, L.M. Sharma, J. (as he then was) observed that : (SCC pp. 712-13, para 5) "The Court (the first appellate court) is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. This is the situation in the present case." In that case, an admission by the defendant tenant in the reply notice in regard to the plaintiffs title and the description of the plaintiff as "owner" of the property signed by the defendant were not considered by the first appellate court while holding that the plaintiff had not proved his title. The High Court interfered with the finding on the ground of non-consideration of vital evidence and this Court affirmed the said decision. That was upheld. In Jagdish Singh v. Natthu Singh, (1992) 1 SCC 647, with reference to a second appeal of 1978 disposed of on 5.4.1991, Venkatachaliah, J. (as he then was) held : (SCC p. 652, para 10) ".......where the findings by the court of facts is vitiated by non consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings." Again in Sundra Naicka Vadiyar v. Ramaswami Ayyar, 1995 Supp (4) SCC 534, it was held that where certain vital documents for deciding the question of possession were ignored such as a compromise, an order of the Revenue Court-reliance on oral evidence was unjustified. In yet another case in Mehrunnisa v. Visham Kumari, (1998) 2 SCC 295, arising out of second appeal of 1988 decided on 15.1.1996, it was held by Venkataswami, J. that a finding arrived at by ignoring the second notice issued by the landlady and without noticing that the suit was not based on earlier notices, was vitiated and the High Court could interefere with such a finding. This was in second appeal of 1988 decided on 15.1.1996." 18. So far the case in hand is concerned, the learned Counsel for the appellant has urged that the suit of plaintiff Reshmu Devi was based on title and on her discharging initial burden to prove that she had acquired proprietary rights of the land in dispute it was for the respondents/defendants to prove adverse possession for twelve years, as prescribed under Article 65 of the Limitation Act, which they have miserably failed to plead and prove. According to the learned Counsel, the findings of fact arrived at by the Additional District Judge that the respondents/defendants came in possession of the suit land somewhere in 1960-61 and it was adverse from they very beginning, deserves to be interfered with in this appeal for the following reasons:— 1. The statement of the plaintiff Reshmu in cross-examination relied upon as her admission that possession of the land in dispute was taken over by the respondents/defendants after the attestation of the mutation in their favour, which might have taken place, presumably, immediately after the purchase of the suit land by them on 22.10.1961, has been misread and misinterpreted. 2. The Additional District Judge has failed to refer to the judgment dated 14.12.1966 Ex. PD and judgment dated 25.4.1977 Ex. PE between the parties in which it has been categorically held that the plaintiff Reshmu continued to be in possession from the time of the death of her husband and no reliance could be placed on the copies of Khasra Girdawari Ex. P-l. Had the Additional District Judge referred to these documents, he would not have relied upon Khasra Girdawari Ex. P-l from. Kharif 1961 to Rabi 1965 and Jamabandi Ex. PC for the year 1964-65 to hold that the plaintiff Reshmu was dispossessed in the Kharif 1961 and suit filed by her on 10.12.1976 is barred by limitation. 19. P-l. Had the Additional District Judge referred to these documents, he would not have relied upon Khasra Girdawari Ex. P-l from. Kharif 1961 to Rabi 1965 and Jamabandi Ex. PC for the year 1964-65 to hold that the plaintiff Reshmu was dispossessed in the Kharif 1961 and suit filed by her on 10.12.1976 is barred by limitation. 19. On the other hand, learned Counsel for the respondents-defendants has vehemently argued that the suit of plaintiff Reshmu was not based on title but was based on possession as a tenant and limitation will be governed under Article 64 of the Limitation Act i.e. twelve years from the date of dispossession. According to the learned Counsel, the Additional District Judge has rightly relied upon the statement of plaintiff Reshmu in cross-examination and Khasra Girdawari Ex. P-l and Jamabandi Ex. PC to come to the conclusion that the plaintiff Reshmu was dispossessed in the year 1960-61. The learned Counsel has also urged that had the Additional District Judge referred to Exts. A-l and A-2, which were produced by way of additional evidence, he would have in addition supported his findings by these documents. Ex. A-l is the copy of an entry of the Register maintained by the Magistrate II Class, Kasumpti (Tehsildar) showing that Criminal Case No. 3 of 1965 titled Smt Reshmu Devi v. Panu Ram, under Sections 447 and 504 I.P.C. was dismissed on 19.1.1962 and Ex. A-2 is copy of an entry of Goshwara Register from the Record Room to show that the file of the said criminal case was destroyed in accordance with rules on 9.10.1970. 20. After giving its best consideration to the submissions made by the learned Counsel for the parties, this Court is of the view that the first substantial question of law, as framed at the time of admission, does arise in this appeal. Firstly, the question of limitation is mixed question of law and fact, and secondly, its decision will directly and substantially affect the rights of the parties in respect of the suit property. In order to decide this substantial question of law, first of all it is to be determined whether the suit of the plaintiff was based on title or on possession. In order to decide this substantial question of law, first of all it is to be determined whether the suit of the plaintiff was based on title or on possession. According to the plaintiff it was based on title and Article 65 of the Schedule to the Limitation Act will apply, whereas, according to the defendants, it is based on possession and Article 64 will apply. The perusal of paragraph 13 of the impugned judgment will show that the first appellate Court has applied Article 65 of the Schedule to the Limitation Act considering that the suit of the plaintiff was based on title and proceeded to hold on its analysis of evidence that the defendants are-able to prove that their possession is adverse to the title of the plaintiff from Kharif, 1961, whereas, the suit has been filed by the plaintiff on 16.11.1976 beyond the period of limitation. 21. In order to find out whether the suit was filed on the basis of title or on the basis of possession, this Court is to advert to the plaint, wherein after giving the history of litigation pertaining to conferment of proprietary rights on the plaintiff under Section 11 of the Act, it is stated in paragraph 13:— "13. That some time in the year 1965-66 when the said appeal preferred by the plaintiff in the High Court was pending the defendant No. 2 father and natural guardian of the defendant No. 1 forcibly dispossed the plaintiff from the suit land which was in her cultivating possession after the time of death of her husband Shri Shankar Lal and of which land she had also become owner by virtue of the order of learned Compensation Officer, Mahasu granting her proprietory rights in the suit land under Section 11 of the H.P. Act No. XV of 1954 and which decision was eventually upheld by the learned District Judge, Mahasu. The defendants have illegally raised structures over the suit land which are liable to be demolished." 22. Therefore, from the perusal of the averments made in the plaint, more specifically, paragraph 13 thereof it is established on record that the plaintiff claimed possession in her capacity as owner on the basis of conferment of proprietary rights on her and Article 65 of Schedule to the Limitation Act was applicable. Therefore, from the perusal of the averments made in the plaint, more specifically, paragraph 13 thereof it is established on record that the plaintiff claimed possession in her capacity as owner on the basis of conferment of proprietary rights on her and Article 65 of Schedule to the Limitation Act was applicable. It is:— Description of suit Period of limitation Time from which period begins to run "65. For the possession of immovable property or any interest therein based on title. Twelve years When the possession of the defendant becomes adverse to the plaintiff." 23. Interpreting Article 65 of the Limitation Act, the learned Judges of the Supreme Court in Indira v. Arumugam and another, (1998) 1 SCC 614, have held in para 5 of the judgment:— "......that when the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited. Unfortunately, this aspect of the matter was missed by the learned Judge and, therefore, the entire reasoning for disposing of the second appeal has got vitiated." 24. Similarly, in Joy Nath Goala and others v. Bhabani Prasad Choudhary and others, (1997) 10 SCC 276, it is held in para 6:— .......When the appellants claimed their title to the property on the basis of the sale deed, unless the respondents establish by evidence aliunde by pleading adverse possession and proof of disclaimer of their right in their possession as licensees asserting their own right to remain in possession disclaiming the title of the appellant, the question of adverse possession would not arise. It was neither pleaded as an issue nor has any finding been recorded by the courts below. The High Court was clearly in error in recording the finding that the appellants had not proved that the respondents were not in possession of the property adverse to the appellants right. Therefore, the question of adverse possession of the respondents does not arise." 25. Applying this principle of law to the present case this Court further finds that the plaintiff has discharged her initial burden that her suit is based on title by the judgments dated 14.12.1966 Ex. PD and dated 25.4.1977 Ex. Therefore, the question of adverse possession of the respondents does not arise." 25. Applying this principle of law to the present case this Court further finds that the plaintiff has discharged her initial burden that her suit is based on title by the judgments dated 14.12.1966 Ex. PD and dated 25.4.1977 Ex. PE whereby it was conclusively held that the proprietary rights of the land in dispute were conferred on the plaintiff and she had rightly claimed title of the land in dispute. The submission made by the learned Counsel for the defendants is without any substance that the suit of the plaintiff was based on possession as a tenant and Article 64 of the Schedule to the Limitation Act was applicable and the suit was time barred since it was filed after the expiry of period of twelve years from the date of dispossession as held by the first appellate court. 26. The next question arises for consideration is whether the defendants have pleaded and proved adverse possession for more than twelve years before the civil suit was instituted. The legal position in this regard is that burden of proof is on the person claiming possession to show that it is peaceful, open, continuous and hostile to the real owner amounting to denial of his title : (See : Parsinni (dead) by LRs and others v. Sukhi and others, (1993) 4 SCC 375; Annasaheb Bapusaheb Patil and others v. Balwant alias Balasaheb Babusaheb Patil (dead) by LRs. and Heirs and others, (1995) 2 SCC 543; Inder Dass v. State of Hirnachal Pradesh and others, 1994 (2) Sim. L.C. 395; Tilak Raj v. Bhagat Ram and another, 1997 (1) Sim. L.C. 281 and Rajinder Singh v. Dalbir Singh and others, AIR 1998 H.P. 43). 27. On the other hand, learned Counsel appearing for the defendants has relied upon the judgment in B.N. Gupta v. Ganga Ram., 1993 (2) Sim. L.C. 235, to urge that whether the possession of a party is adverse or not is a question of fact, which this Court need not decide afresh by reappraising all the evidence on record. 27. On the other hand, learned Counsel appearing for the defendants has relied upon the judgment in B.N. Gupta v. Ganga Ram., 1993 (2) Sim. L.C. 235, to urge that whether the possession of a party is adverse or not is a question of fact, which this Court need not decide afresh by reappraising all the evidence on record. If there are pleadings and evidence on record on the analysis of which the court below arrives at a finding whether the adverse possession claimed by the party is proved or not, it is a question of fact which need not be gone into in exercise of jurisdiction under Section 100 C.P.C. but if there are neither pleadings nor issues nor evidence on record still the court below of its own makes out a case for a party for adverse possession, such findings can definitely be gene into in exercise of jurisdiction under Section 100 C.P.C. on the substantial question of law that the findings of Averse possession are erroneous and perverse having been not supported either by pleadings or evidence, which is true in respect of the case in hand. The perusal of written statement shows that the stand of the defendants was that they have been in possession since when they had purchased the land in dispute on 18.10.1960 and they had planted an orchard over it. Alleging that the judgments conferring proprietary rights on the plaintiff was nullity, the defendants have averred that the plaintiff was never a tenant and in the alternative that she had either abandoned her tenancy or her tenancy stood extinguished on her failure to cultivate the land in dispute after the death of her husband. In view of this defence in the written statement there is no question of evidence of adverse possession and the first appellate Court has gravely erred in holding in para 13 of its judgment that possession of the defendants is adverse to the rights of the plaintiff from the very beginning. It is well settled that possession for howsoever long period cannot ripen into ownership unless and until there is assertion of hostile title. It is well settled that possession for howsoever long period cannot ripen into ownership unless and until there is assertion of hostile title. Therefore, the findings of the first appellate Court that the possession of the defendants was hostile from 20th October, 1960, when they purchased the land in dispute and the period of limitation for filing the suit by the plaintiff expired twelve years thereafter i.e. on 20th October, 1972, whereas, she had filed the suit on 16.11.1976, are set aside. 28. Even the findings of the first appellate Court that the defendants came in possession of the suit land somewhere in 1960-61 calls for interference on the ground that the statement of plaintiff Reshmu has been misread and misinterpreted to hold that the defendants had come into possession soon after the attestation of mutation in their favour after they had purchased the land. So far the statement of plaintiff Reshmu is concerned, it is not in clear terms that the respondents-defendants came in possession soon after the attestation of Mutation in their favour, as referred to by the first appellate Court. It is:— "YEH THEEK HAT KI MADNAVATI WALI ZAMEEN KI INTKAL VIRENDER DEFENDANT NO. 1 KE NAAM HUA THA SWEM KAHA KI BAAD MEIN KAAT KAR MERE NAAM HO GAYA THA. MAIN IS SAMAY IS VARE KOI SABOOT NAHIN DE SAKTI HOON KI INTKAL MERE NAAM PAR HUA THA. ZAMEEN MUTNAZA KI KABJA US SAMAY SE LE KAR AAJ TAK DEFENDANT NO. 1 VIRENDER KA CH ALA AA RAH A HAI........" 29. From the perusal of above statement it is not clear that plaintiff Reshmu was referring to the Mutation attested in favour of the respondents-defendants or in her favour to state that since the time of mutation the respondents-defendants continued to be in possession. Moreover, there is no evidence on record that when Mutation of purchase in favour of respondents-defendants was attested and the first appellate Court has gravely erred in presuming that it must have been soon after the purchase on 22.10.1960 to fix the start of period of limitation as 1960-61. 30. This Court further finds that judgments Exts. PD and PE were material documents and had the first appellate Court referred to them, it would not have relied upon Khasra Girdawari Ex. P-l and Jamabandi Ex. PC to hold that the respondents-defendants came in possession of the land in dispute in Kharif 1961. 30. This Court further finds that judgments Exts. PD and PE were material documents and had the first appellate Court referred to them, it would not have relied upon Khasra Girdawari Ex. P-l and Jamabandi Ex. PC to hold that the respondents-defendants came in possession of the land in dispute in Kharif 1961. Judgment Ex. PD was passed in CMA No. 95-M/14 of 1964 by District Judge, Mahasu and Kinnaur District, whereby the order dated 31.8.1964 of Compensation Officer, Mahasu granting proprietary rights to plaintiff Reshmu under Section 11 of the Act was affirmed and by judgment Ex. PE passed in M.S.A. No. 14 of 1967 the learned Single Judge of this Court has further affirmed the judgment Ex. PD. In the judgment Ex. PD the District Judge has categorically held:— "From the evidence on record, it has been proved beyond any reason of doubt that Smt. Reshmoo respondent, is in possession of this land from the time of the death of her husband Shankar Lal. No reliance can be placed on the copies of the Khasra Girdawari and those are incorrect entries evidently made by the Patwari to harm the case of the respondent. Once the relationship of landlord and tenant comes into existence, it continues unless it is terminated in accordance with the provisions of the Tenancy Laws....." Further, in judgment Ex. PE the learned Single Judge of this Court affirmed the findings of the District Judge that there is nothing to show that change in the entry in Khasra Girdawari after Kharif 1961 was effected with the knowledge and consent of the plaintiff Reshmu, as such, it cannot be relied upon to be hold that she was dispossessed from Kharif 1961 or she had relinquished the possession as per the case of the respondents-defendants. 31. The result of above discussion is that the first substantial question of law is decided in favour of the appellant by holding that the suit of the appellant-plaintiff is within limitation and the findings of the first appellate Court on Point No. 2 are set aside. 32. 31. The result of above discussion is that the first substantial question of law is decided in favour of the appellant by holding that the suit of the appellant-plaintiff is within limitation and the findings of the first appellate Court on Point No. 2 are set aside. 32. So far second substantial question of law is concerned, it has also been answered in favour of the appellant-plaintiff, as during the course of discussion on substantial question of law No. 1 this Court has already held that in the absence of pleadings and evidence on record the first appellate Court was not justified in holding the possession of the defendants as adverse. As regards third substantial question of. law, it does not arise in the present appeal as the first appellate Court has categorically held while deciding Point No. 3 that the matter of conferment of proprietary rights on the plaintiff stood finally decided by the judgment Ex. PE passed by this Court. 33. In the end, the result of above discussion is that there is merit in this appeal and it is allowed. The judgment and decree of the first appellate Court are set aside and the judgment and decree of the trial Court are affirmed. No costs. Appeal allowed.