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2000 DIGILAW 297 (HP)

STATE OF HIMACHAL PRADESH v. DURGA SINGH

2000-11-15

LOKESHWAR SINGH PANTA

body2000
JUDGMENT Lokeshwar Singh Panta, J.—The above two appeals are taken up and heard together on account of a common question of law raised in them as to the competency and authority of the civil court to deal With the claim and grant relief in favour of the plaintiffs , in the manner it has been done in the teeth of a bar engrafted in Sections 163 and 171 of the Himachal Pradesh Land Revenue Act, 1953, against the judgment and decree dated 21.8.1993 of the learned District Judge, Shimla passed in Civil Appeal No. 75-S/13 of 1991, whereby the judgment and decree dated 25.7.1991 dismissing suit No. 9/1 of 1988 by Sub-Judge 1st Class, Theog filed by respondent-plaintiff has been set aside and decreed as prayed for was granted in favour of the respondent-plaintiff. RSA No. 109 of 1994 is directed against the judgment and decree dated 17.9.1991 passed by Additional District Judge (1), Shimla in Civil Appeal No. 18-S/13 of 1993 whereby the appeal of the defendant-State Government against the judgment and decree of Sub Judge 1st Class, Theog in Civil Case No. 79/ 1 of 1990 decreeing the suit of the respondent-plaintiff for declaration and injunction has been affirmed. The parties hereinafter are referred to as the plaintiff and defendant-State in this judgment. Facts :— RSA No. 108 of 1994 2. Plaintiff Durga Singh filed case No, 9/1 of 1988 on the file of Sub Judge 1st Class, Theog, District Shimla for perpetual injunction alleging, inter alia, that the land comprised in Khata Khatauni No. 156/227 min, khasra Nos. 594 and 595, measuring 160 bighas 14 biswas situated in Chak Dharech-Ghawech, Tehsil Theog, District Shimla as entered in the jamabandi for the year 1982-83 was recorded in the ownership of the defendant-State and in possession of Bashindgan-Deh. The case of the plaintiff was that out of the total land, the land having Khasra No. 594/1 measuring 12-13 bighas and Khasra No. 595/1 measuring 5-13 bighas total land measuring 18 bighas 6 biswas land (hereinafter referred to as suit land) has been in possession of the plaintiff since the time of his fore-fathers. The case of the plaintiff was that out of the total land, the land having Khasra No. 594/1 measuring 12-13 bighas and Khasra No. 595/1 measuring 5-13 bighas total land measuring 18 bighas 6 biswas land (hereinafter referred to as suit land) has been in possession of the plaintiff since the time of his fore-fathers. The plaintiff stated that his predecessors were cultivating the suit land for the last more than 30 years and also planted apple plants on some portion of the suit land about 24-25 years before filing of the suit and some plants were planted by him as well and that some portion of the suit land is still under cultivation. He claimed that he used to cut grass from the suit land from the time of his fore-fathers. He pleaded that the possession of his fore-fathers over the suit land was open, continuous, exclusive and hostile to the knowledge of the true owner for the last more than 60 years. After the death of the plaintiffs father, the land came in his exclusive possession in a family arrangement entered into between the plaintiff and his brothers. The plaintiff has also fenced the suit land even prior to the death of his father. He stated that the defendant-State and its officials on the basis of wrong entries in the record of rights initiated ejectment proceedings against the plaintiff and the Assistant Collector 1st Grade passed an order of ejectment against him on 20.1.1983 and 2.1.1986 respectively. The order of ejectment recorded by the Assistant Collector 1st Grade was upheld by the Collector, Commissioner and Financial Commissioner. Pursuant to the ejectment orders, the plaintiff apprehended his dispossession from the suit land. Hence, the suit was accordingly filed. 3. The defendant-State filed written statement raising preliminary objections that the suit was not maintainable in the present form; that no cause of action ever accrued to the plaintiff to file the suit; that the suit was bad for non-joinder of necessary parties; that the suit was barred by res-judicata; that the plaintiff was estopped to file the suit; that the plaintiff had not come to the Court with clean hands; that no legal notice under Section 80 of the Code of Civil Procedure had been served upon the defendant-State and that the Court had no jurisdiction to try the suit. On merits, the defendant-State pleaded that the entries in the record of rights were correctly made but it was admitted that the plaintiff and other right holders have the grazing rights over the suit land. It was asserted that in fact in the year 1976-77, the plaintiff alongwith his brothers encroached upon a portion of the land comprised in Khasra No. 595/1 measuring 5 bighas 13 biswas for which proceedings were initiated against them before the Assistant Collector 1st Grade, Theog who passed the order of their ejectment on 2.1.1986 and the said order was upheld by the Collector on 30.5.1987. The defendant-State denied the possession of the plaintiff over the suit land and it was stated that long possession of the plaintiff has not ripened into ownership by way of adverse possession as claimed by him in the plaint the plaintiff has not become owner of the suit land by adverse possession as claimed by him. 4. Replication was filed by the plaintiff wherein the averments made in the plaint were reasserted and reaffirmed and the assertions made in the written statement by the defendant-State were denied. 5. On the controversial pleadings of the parties, the trial Court framed the following issues:— 1. Whether the plaintiff has become the owner of the suit land by way of adverse possession? OPP 2. Whether the present suit is not maintainable in the present form? OPD 3. Whether no cause of action ever accrued to the plaintiff to file the present suit? OPD 4. Whether the present suit is bad for non-joinder of necessary parties? OPD 5. Whether the present suit is barred under the provision of res judicata? OPD 6. Whether the plaintiff is estopped to file the present suit? OPD 7. Whether the plaintiff has not come to the Court with clean hands? OPD 8. Whether no legal notice under Section 80 CPC has been . served upon the State of H.P.? OPD 9. Whether this court has no jurisdiction to try the present suit? OPD 10. Relief. 6. The plaintiff adduced oral and documentary evidence in support of his claim and the defendant-State has not led any evidence to rebut the evidence of the plaintiff. The learned trial Court recorded findings under issue Nos. 1, 2 and 7 against the plaintiff and in favour of the defendant-State. Issue Nos. OPD 10. Relief. 6. The plaintiff adduced oral and documentary evidence in support of his claim and the defendant-State has not led any evidence to rebut the evidence of the plaintiff. The learned trial Court recorded findings under issue Nos. 1, 2 and 7 against the plaintiff and in favour of the defendant-State. Issue Nos. 2, 3, 5, 6, 8 and 9 were decided against the defendant-State and in favour of the plaintiff. Consequently, the suit of the plaintiff was dismissed. Aggrieved, the plaintiff persuaded the matter on appeal before the first Appellate Court which was allowed and findings of the learned trial Court were set aside. Consequently, the suit of the plaintiff was decreed declaring him to be owner of the suit land by way of adverse possession. 7. Now the defendant-State is before this Court in second appeal. The appeal came to be admitted on the following two substantial questions of law:— 1. Whether mere possession howsoever long amounts to adverse possession when there being an element of open and hostile possession? 2. Whether Civil Court has no jurisdiction to entertain and try the civil suit in view of the bar created by Section 163 of the H.P. Land Revenue Act, 1953? RSA No. 109 of 1994 8. Plaintiff Pintoo filed civil case No. 79/1 of 1990 on the file of Sub Judge 1st Class, Theog, District Shimla for declaration and injunction against the defendant-State alleging inter alia, that he was inducted as tenant by the erstwhile Ruler of Balson over the land comprising Khasra No. 100 measuring 5-7 biswas situated in Chak Kuthar, Tehsil Theog, District Shimla and he used to pay rent to the Ruler at the rate of 1/2 of the total produce of the suit land. It was submitted that the former Ruler of Balson had declared his land including suit land surplus under the H.P. Land Ceiling and Land Holding Act, 1973 and despite the change of the entry which was not in the knowledge of the plaintiff, the possession of the suit land continued with the plaintiff. However, lateron the defendant-State started ejectment proceedings against the plaintiff under Section 163 of the H.P. Land Revenue Act, 1953 and. on this premise the necessity to file the suit arose. However, lateron the defendant-State started ejectment proceedings against the plaintiff under Section 163 of the H.P. Land Revenue Act, 1953 and. on this premise the necessity to file the suit arose. In the alternative, the plaintiff claimed that if his tenancy is not proved on record, then he has become owner by way of adverse possession as his possession over the suit land has been for the last more than 40 years continuously, openly, uninterruptedly and adverse to the interest of the defendant-State. The order of the ejectment of Assistant Collector, 1st Grade, Theog, dated 4,12.1984 has been challenged being wrong and illegal. 9. In the written statement filed by the defendant-State, preliminary objections were taken that the suit land was not maintainable; that the plaintiff was estopped from filing the suit; that the suit was Darred by limitation; and was bad for non-joinder of necessary parties as well as for non-service of legal notice. The jurisdiction of civil court has also been challenged. On merits, it was admitted that prior to the vestment of the land with the State Government under the H.P. Land Ceiling and Land Holdings Act, 1973 (for short the Act); the suit was owned by the erstwhile Ruler of Balson but it was denied that the plaintiff was ever inducted as tenant over the suit land or that he is in possession of it for the last more than 40 years. It was contended that the land which was declared surplus has now vested with the State free from all encumbrances and therefore, the order of Assistant Collector 1st Grade, Theog and also the revenue entries of the ownership of the State on the suit land were correct. The claim of adverse possession made by the plaintiff has also been challenged and it was prayed that the suit be dismissed. 10. On the pleadings of the parties the trial court framed the following issues:— 1. Whether the plaintiff was inducted as tenant over the suit land by erstwhile ruler of Balsan Estate as alleged? OPP 2. If issue No. 1 is not proved as affirmative whether the plaintiff has become owner of suit land by way of adverse possession as alleged? OPP 3. Whether the suit of plaintiff is not maintainable in view of preliminary objections No. 1 to 8 of written statement as alleged? OPD 4. Relief. 11. OPP 2. If issue No. 1 is not proved as affirmative whether the plaintiff has become owner of suit land by way of adverse possession as alleged? OPP 3. Whether the suit of plaintiff is not maintainable in view of preliminary objections No. 1 to 8 of written statement as alleged? OPD 4. Relief. 11. Plaintiff adduced oral and documentary evidence in support of his claim whereas no evidence has been led by the defendant-State to rebut the evidence of the plaintiff. 12. On appraisal of entire evidence and other material on record the trial court held that the plaintiff was not a tenant of the suit land as the factum of payment of rent was not sufficiently proved by him. However, the plea of the plaintiff that he has become owner of the suit land by way of adverse possession has been accepted and the suit of the plaintiff has been decreed on that count. 13. Aggrieved, the defendant-State persuaded the matter on appeal before the first Appellate Court. The first appellate Court concluded that since the plaintiff could not prove his adverse possession hence decree to that extent was set aside but the suit was decreed holding the plaintiff tenant of the suit land under the erstwhile ruler of Balson. Now, the defendant-State is in second appeal before this Court. The appeal came to be admitted on the following substantial questions of law:— 1. Whether the First Appellate Court has correctly interpreted the documents Ext. PW-l/A and Ext. P-2 to come to the conclusion that respondent/plaintiff was in possession of the land as a tenant when the H.P. Ceiling and Land Holdings Act, 1973 came into operation? 14. In both the above said appeals, common arguments were addressed by the learned Counsel on either side and hence they are dealt with and decided together. 15. Mr. M.S. Guleria, learned Deputy Advocate General in both these appeals vehemently contended that the jurisdiction of the civil Court is barred under Section 171 of the H.P. Land Revenue Act, 1953 ancl therefore, the civil suit filed by the plaintiffs were not maintainable before the trial Court. 15. Mr. M.S. Guleria, learned Deputy Advocate General in both these appeals vehemently contended that the jurisdiction of the civil Court is barred under Section 171 of the H.P. Land Revenue Act, 1953 ancl therefore, the civil suit filed by the plaintiffs were not maintainable before the trial Court. He also contended that the decree of injunction as prayed for by the plaintiffs in their suits could not be granted unless the orders of revenue officers passed under Section 163 of the H.P. Land Revenue Act (fort short "the Revenue Act") against the plaintiffs were set aside by the competent court; that the suits of the plaintiffs were barred as the orders of the ejectment of the Revenue Authorities were not challenged by the plaintiffs within one year from the date of such order. In support of this submission, the learned Counsel relied upon a decision of the learned Single Judge of this Court in State of Himachal Pradesh v. Girja Kumar and others, 2000 (2) Shimla Law Cases 253. The learned Deputy Advocate General further contended that before claiming the declaration as prayed for by-the plaintiffs in their suits, the impediment of the orders of the Revenue Authorities have to be got cleared by the plaintiffs and once the plaintiffs have been found encroachers of the suit land by the competent revenue officer no decree could have been passed by the courts below sought for by the plaintiffc in their suits. In support of this submission the learned Deputy Advocate General has placed reliance in Ajudh Raj and others v. Moti, S/o Mussadi, AIR 1991 SC 1600. It was further contended that the plaintiffs have miserably failed to prove that they are in adverse possession of the suit land for the last more than 30 years to the knowledge of the true owner i.e. State Government and long possession of the plaintiffs for whatever-period may be, will not amount to adverse possession to the knowledge of the State for from the date of/the orders of ejectment. In support of this submission the learned Deputy Advocate General has relied upon judgments of the Supreme Court in State of Rajasthan v. Harphool Singh (dead) through his Rs., (2000) 5; Supreme Court Cases 652 and Roop Singh (Dead) through LRs. v. Ram Singh (Dead) through LRs., AIR 2000 Supreme Court 1485. 16. Per contra Mr. In support of this submission the learned Deputy Advocate General has relied upon judgments of the Supreme Court in State of Rajasthan v. Harphool Singh (dead) through his Rs., (2000) 5; Supreme Court Cases 652 and Roop Singh (Dead) through LRs. v. Ram Singh (Dead) through LRs., AIR 2000 Supreme Court 1485. 16. Per contra Mr. Bhupender Gupta, learned Senior Advocate appearing for the plaintiffs with equal force and vehemence contended that the finding of the first Appellate Court in RSA No. 108 of 1994 and concurrent findings of both the courts below in RSA No. 109 of 1994 are quite in accordance with law and do not call for interference in these appeals. He contended that the plaintiffs have proved on record their possession over the suit land for the last more than 30 years and the provisions of Section 163 of the Land Revenue Act are not attracted in the present cases and no proceedings under the said Section could have been initiated against the plaintiffs by the authorities. According to the learned Senior Counsel seeking the injunction by the plaintiffs in the suit declaration was imperative and the proceedings under Section 163 of the Land Revenue Act are only summary in nature and therefore, there was no need to the plaintiffs to challenge the orders of the Revenue Authorities in the suits. He submitted that the possession of the plaintiffs has been admitted by the defendant-State and the plaintiffs have acquired title by adverse possession and the revenue entries having been wrongly incorporated in the record of rights could be challenged by the plaintiffs in civil court as provided under Section 46 of the Land Revenue Act and Chapter XI of the Specific Relief Act, 1963 has not been excluded from the provisions of Section 46. He also contended that the plaintiffs have proved that they have planted apple orchard on the suit land and fenced their boundary long time hence, the defendant-State has not rebutted the evidence of the plaintiffs; their claims of ownerships have to be accepted. He lastly contended that the finding of the courts below whether the plaintiffs have become owners by adverse possession of the suit land are finding of fact and this Court will not interfere in the second appeal to that finding recorded by the courts below. He lastly contended that the finding of the courts below whether the plaintiffs have become owners by adverse possession of the suit land are finding of fact and this Court will not interfere in the second appeal to that finding recorded by the courts below. In support of this submission, the learned senior counsel has placed reliance in Raruha Singh v. Achal Singh and others, AIR 1961 SC 1097, V. Ramachandra Ayyar and another v. Ramalingam Chettiar and another, AIR 1963 SC 302, Mst Kharbuja Kuer v. Jangbahadur Rai and others, AIR 1963 SC 1203, Arumugham (Dead) by LRs. and others v. Sundarambal and another, (1999) 4 SCC 350, and a decision of learned Single Judge of this Court in Prakash Chand v. Bhagat Ram and others, 1993 (2) Sim. L.C. 335. 17. I have given my anxious and thoughtful consideration to the respective contentions of the learned Counsel on either side and perused the entire material on record. In case No. 9/1 of 1983 which was the subject matter of RSA No. 108 of 1994, the plaintiff appeared as PW-1 and deposed that the suit land is in his possession from the time of his forefathers and it has fallen in his share in a family partition. He stated that he and his father had planted about 300 apple plaints on the suit land aged about 35 to 40 years. The suit land has been fenced by him with barbed wire which covered all the three sides of the land owned and possessed by him. When the ejectment proceedings were initiated against him by the revenue officers, he gave notice Ext. P-l to the defendant-State. His father expired in the year 1951 and the family partition took place between him and his brothers in the year 1987 and earlier to the year 1987 the entire property including the suit land was joint. He admitted that in the year 1982, he alongwith his brothers filed application for correction of revenue entries of the suit land which was dismissed by revenue officer. His oral version has been corroborated by PW 2 Sita Ram who deposed that the sut land is in possession of the plaintiffs from the time of his father and it consists of apple plants of the age of 40-45 years and that it is fenced by barbed wire. His oral version has been corroborated by PW 2 Sita Ram who deposed that the sut land is in possession of the plaintiffs from the time of his father and it consists of apple plants of the age of 40-45 years and that it is fenced by barbed wire. PW- 3 Roop Ram has also supported the claim of the plaintiff. In addition to the oral evidence, the plaintiff placed on record a copy of jamabandi for the year 1982-83 Ext. PA, copy of the order of Collector dated 30.5.1987 Ext. PB, copy of order of Financial Commissioner date15.6.1987 Ext. PC and tatima mark A’. It appears from the judgments and decree of both the courts below that during the pendency of the suit, the trial Court appointed a Horticulture Inspector, Theog vide order dated 3.4.1991 to determine the age of the plants over the suit land and the report was prepared by Assistant Development Officer (Horticulture) Development Block, Theog in which the ages of the apple plants were shown between 25, 30, 16, 20 and 10 years respectively. One more report appears to have been prepared by Patwari Halqua supporting the report of Assistant Development Officer about the number of the plaints over the suit land and their ages but on perusal of the record I find that those two reports were not placed on record. 18. The defendant-State has not led any evidence to rebut the evidence of the plaintiffs. Adverting to the first submission of the learned Deputy Advocate General about the jurisdiction of the Civil Court to entertain and decide the suit, the relevant provisions of the Land Revenue Act have to be referred to and considered under Section 163, the revenue officer has been entrusted with the powers to eject the person from the Government land which has been encroached upon by him. Any order of ejectment passed by the Assistant Collector 1st Grade or 2nd Grade under Section 163 can be challenged by the aggrieved parties by way of appeal under Section 14 before the Collector and thereafter, to the Commissioner and further to the Financial Commissioner. The Financial Commissioner, Commissioner, Collector, Assistant Collector 1st Grade and the Assistant Collector 2nd Grade are all classified as Revenue officers under Section 7 of the Revenue Act. The Revenue officers are also authorized to review their own orders under Section 16 of the Act. The Financial Commissioner, Commissioner, Collector, Assistant Collector 1st Grade and the Assistant Collector 2nd Grade are all classified as Revenue officers under Section 7 of the Revenue Act. The Revenue officers are also authorized to review their own orders under Section 16 of the Act. Section 171 excludes the jurisdiction of the civil court in matters within the jurisdiction of the revenue officers who are competent to take cognizance in such matters and dispose them of, but it stipulates that if there is a question as to title or to the adverse possession, wherein the possession is claimed by an encroacher for a period beyond thirty years in relation to the land from which ejectment is made under Section 163 the jurisdiction of the Civil Court is not ousted in such eventuality before H.P. Land Revenue (Amendment) Act, 1989 which came into force w.e.f. 27.6.1989. In the subject matter of R.S.A. No. 108/94, the suit was filed on 6.1.1988 i.e. prior to the H.P. Land Revenue (Amendment) Act, 1989 and as such these proceedings are covered under the unamended Act. The jurisdiction of the Civil Court therefore, was not barred for the relief sought for by the plaintiff under Section 46 of the Land Revenue Act. The bar under Section 163(3) read with Section 171(2) of the Land Revenue Act would not be attracted to the present cases. The present suits as such would not be heard. A Full Bench of this Court in 1991(1) Sim. L.C. 223, held that the jurisdiction of the Civil Court to entertain a civil suit for declaration of title and injunction is neither ousted nor barred by the orders passed by the statutory authorities constituted under the special enactments. The plaintiffs have sought for declaration to their right, title or interest which could be only granted by the Civil Court and the question of adverse possession as claimed by the plaintiffs could not be decided by the revenue officer before the amendment of the Land Revenue Act, 1989. In the cases on hand the plaintiffs are ascertaining their claim of acquisition of title by adverse possession in derogation of the rights and interest of the State in the suit land. In the cases on hand the plaintiffs are ascertaining their claim of acquisition of title by adverse possession in derogation of the rights and interest of the State in the suit land. The determination of such claims are not only outside the purview of Section 163 of the unamended Land Revenue Act which only provides for a summary mode of eviction but in respect of such disputes relating to title to immovable property the jurisdiction of ordinary civil courts to adjudicate them cannot be said to have been ousted. The powers and procedure under Section 163 of the unamended Act, are no substitute for the civil courts jurisdiction and powers to try and adjudicate disputes of title relating to immovable property. The plaintiffs and their predecessors-in-interest have categorically stated before the Revenue officers in the ejectment proceedings that they have perfection of title by adverse possession but the Revenue officers appeared to have not recorded any finding on the question of adverse possession and continued proceedings for ejectment of the plaintiffs. In Kaka Ram alias Ram Lai v. Financial Commissioner, H.P. and others, 1984 Sim. L.C. 154, a Division Bench of this Court has held that if a revenue authority acting under Section 163 of the H.P. Land Revenue Act determines the question of title when it is seriously in dispute between the parties and consequently, passes order in the purported exercise of the power under the said section, such a determination would not oust the jurisdiction of the civil courts. It is well settled that even if the statute gives finality to the orders of special tribunals such a provision does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. The jurisdiction of the Civil Court to entertain the suit for clearing the cloud, if any, created on the title, if any, of the parties to the disputed land is not barred. Consequently, the view taken by the courts below that the civil courts jurisdiction is not ousted in the matters of the nature and that there was no impediment to proceed with the trial of the suits and adjudicate the issues and grant relief, cannot be said to be bad in law. Consequently, the view taken by the courts below that the civil courts jurisdiction is not ousted in the matters of the nature and that there was no impediment to proceed with the trial of the suits and adjudicate the issues and grant relief, cannot be said to be bad in law. On the other hand the said view taken by the courts below is in quite conformity with the binding legal position. The contention raised on behalf of the defendant-State to the contrary, therefore, fails and shall stand rejected. 19. The next question as projected by the learned Deputy Advocate General that unless the impediment of the ejectment orders passed by the revenue authorities are challenged and quashed which were recorded under the Special Act. No decree could be granted by the courts below in suits for injunction, is equally untenable. The plaintiffs have filed their suits for declaration and perpetual injunction claiming for setting aside the wrong revenue entries appearing in the record of rights and such suits are maintainable under Section 46 of the Land Revenue Act. For the aforesaid reasons, the second question in R.S.A. No. 108/94 is answered in the negative and in favour of the plaintiff. . 20. The learned Deputy Advocate General contended that since the orders passed by the revenue authorities against the plaintiffs under Section 163 of the Land Revenue Act have not been challenged by the plaintiffs within the period of limitation and unless the plaintiffs get those orders cleared, they could not succeed in their respective suits. I aim afraid to accept the said contention of the learned Deputy Advocate General. In Ajudh Raj and others v. Moti S/o Mussadis case (supra) cited by the learned Deputy Advocate General, their Lordships were dealing with the applicability of Articles 100, 113 and 65 of the Limitation Act, 1963. In that decision it has been held:— "The principle of deciding the question of limitation in a suit filed after an adverse order under a Special Act is well settled. If the order impugned in the suit is such that it has to be Set aside before any relief can be granted to the plaintiff the provisions of Article 100 will be attracted and if no particular Article of the Limitation Act is applicable the suit must be governed by the residuary Article 113, prescribing a period of three years. If the order impugned in the suit is such that it has to be Set aside before any relief can be granted to the plaintiff the provisions of Article 100 will be attracted and if no particular Article of the Limitation Act is applicable the suit must be governed by the residuary Article 113, prescribing a period of three years. Therefore, in a suit for title to an immovable property which has been subject-matter of a proceeding under a Special Act if an adverse order comes in the way of the success of the plaintiff, he must get it cleared before proceeding further. The decisions proceeded further to record that on the other hand if the order has been passed without jurisdiction, the same can be ignored as nullity, that is, non-existent in the eye of law and it is not necessary to set it aside; and such a suit will be covered by Article 65." (Para 5) 21. In the present suit the plaintiff has filed his suit seeking declaration and perpetual injunction projected his title by way of adverse possession and, therefore it was not necessary for him to have challenged the orders of ejectment passed by the revenue authority against him under Section 163 which is barred by Section 171 of the Revenue Act. 22. The sole question involves for consideration in R.S.A. No. 108/94 is whether the plaintiff has proved his case by leading cogent and convincing evidence that the has become owner of the suit land perfected his title by adverse possession or not. In the suit the defendant-State as noticed above has not led any evidence to rebut the evidence of the plaintiff. The plaintiff in Case No. 9/1 of 1988 which is the subject matter of above said appeal has proved that his father was in possession of the suit land and after the death of his father in the year 1951 a family partition took place between him and his brothers in the year 1987 in which the suit land has fallen in his share. The plaintiff and his father have planted about 300 apple plants on the suit land and their ages were about 35 to 10 years at the time of filing of the suit. The ejectment proceedings were initiated against the plaintiff somewhere in the year 1986 by the revenue authority. The plaintiff and his father have planted about 300 apple plants on the suit land and their ages were about 35 to 10 years at the time of filing of the suit. The ejectment proceedings were initiated against the plaintiff somewhere in the year 1986 by the revenue authority. From the oral evidence led by the plaintiff on record which has remained unrebutted, the plaintiff has proved that his possession was open, continuous, hostile and adverse to the knowledge of the true owner. It is not in dispute that mere permissive possession for long period does not lead to the conclusion that the plaintiff has become owner of the suit land by adverse possession. It is imperative for the plaintiff to prove by cogent and convincing evidence hostile animus and possession adverse to the knowledge of real owner as held by Supreme Court in Roop Singh (Dead) through LRs. v. Ram Singh (Dead) through LRs., (2000) 3 Supreme Court Cases 708. In State of Rajasthan v. Harphool Singh (Dead) through his LRs., (2000) 5 Supreme Court Cases 652, relied upon by learned Deputy Advocate General. In all those decisions their Lordships have held that concrete proof of open, hostile and continuous possession is required to substantiate a claim of perfection of title by adverse possession and verifiable details of the nature of the occupation would be essential and mere assertions would not be adequate substitute. These decision proceeded to hold that where there are glaring inconsistencies and contradictions in the evidence and issues raised are serious, the High Court is not hampered by the provision of Section 100 from interfering with even concurrent findings of fact of the lower courts. From the oral evidence of the plaintiff it has been proved by cogent and convincing evidence that he is in adverse possession of the suit land for more than 30 years. I find no glaring inconsistencies and contradictions in the evidence and issues raised before the learned First Appellate Court who decreed the suit of the plaintiff and there is concrete proof of open, hostile and continuous possession of the plaintiffs to the knowledge of the defendant-State. The defendant-State ought to have rebutted the entire evidence of the plaintiff which it has miserably failed and , no evidence has been led by the defendant-State to substantiate their counter claims in the written statement. 23. Mr. The defendant-State ought to have rebutted the entire evidence of the plaintiff which it has miserably failed and , no evidence has been led by the defendant-State to substantiate their counter claims in the written statement. 23. Mr. Bhupender Gupta, learned Senior Counsel for the plaintiff has placed reliance on Ramkumar Agarwal and another v. Thawar Das (Dead) through LRs., (1999) 7 Supreme Court Cases 303, to contend that this Court while deciding the second appeal shall not re-appreciate \ the evidence and the well reasoned finding of fact recorded by the First Appellate Court holding the plaintiff entitled for the reliefs sought for in the suit based upon perfect title of Adverse possession and the said finding is not warranted to be interfered with. 24. In Hari Singh v. Kanhayiya Lal, (1999) 7 Supreme Court Cases 288, the Supreme Court has held:— "The jurisdiction of the Courts in first appeals, second appeals or revisions are all, to the extent conferred by the legislature. No litigant possesses any natural or inherent right to appeal against any order, unless a statute confers it and it is to the extent it is conferred. Thus the area to challenge is also hedged by the legislature. Hence, challenge to the impugned order has to be confined within such limitation. The purpose of amending Section 100 by the 1976 amending Act was to further limit the jurisdiction of the High Court and prior to the amendment mere lack of details in the pleading cannot be a reason to set aside concurrent finding of facts under Section 100 CPC by the High Court." 25. In Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-un-Niswan, (1999) 6 Supreme Court Cases 343, the Supreme Court again reiterated that where the High Court under Section 100 CPC 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, the High Court 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 that case, the suit seeking declaration that disputed property was not a wakf property was dismissed by the trial Court and the first appeal was also dismissed. In that case, the suit seeking declaration that disputed property was not a wakf property was dismissed by the trial Court and the first appeal was also dismissed. The lower courts noting that much of plaintiffs evidence was false or contradictory his own case and the High Courts reversal of the concurrent findings of the trial and appellate courts and substituting its subjective satisfaction in place of that of the lower courts was wholly unwarranted. It is settled law that this Court in Regular Second Appeal has no jurisdiction to set aside the finding of fact. The Supreme Court has gone further to hold that howsoever erroneous finding of fact may be, the High Courts have no jurisdiction under Section 100 CPC to correct that error (See : Raruha Singh v. Achal Singh and others, AIR 1961 Supreme Court 1097; V. Ramachandra Ayyar and another v. Ramalingam Chettiar and another, AIR 1963 Supreme Court 302 and Mst Kharbuja Kuer v. Jangbahadur Rai and others, AIR 1963 Supreme Court 1203). In Kondiba Dagadu Kadamv. Savitribai Sopan Gujar and others, JT 1999 (3) SC 163, it has been held:— "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 substitutes 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.". (Para 5) 26. There cannot be any dispute for the legal proposition as projected by the learned Deputy Advocate General that whenever the plaintiff raises the plea of adverse possession, it is for him to prove the exact date since when the plaintiff was in the adverse possession of the suit land. (Para 5) 26. There cannot be any dispute for the legal proposition as projected by the learned Deputy Advocate General that whenever the plaintiff raises the plea of adverse possession, it is for him to prove the exact date since when the plaintiff was in the adverse possession of the suit land. But in the facts and circumstances of the present case, the plaintiff has successfully discharged his onus and has proved by oral evidence which has been discussed hereinabove, that his possession over the suit land was of much longer period within 30 years on the date of filing of the suit as he was found in possession of fruit bearing trees standing on the suit land much prior to the institution of the ejectment proceedings against him and his brothers by the revenue authorities. In Arumugham (Dead) by LRs. and others v. Sundarambal and another, (1999) 4 Supreme Court Cases 350, the Supreme Court has held that High Court in second appeal cannot interfere with the judgment of the first Appellate Court merely on the ground that the first Appellate Court failed to advert to the reasons ascribed by the trial Court and the first Appellate Court can consider the evidence adduced by the parties and give its own reasons for accepting or rejecting the evidence of one party or the other party. In the present case the first Appellate Court has considered the entire evidence of the plaintiff which as noticed has remained unrebutted from the side of the defendant-State. I find no cogent reason to interfere with the reasoning and finding recorded by the first Appellate Court. 27. For the aforesaid reasons the above said second two substantial question of law is answered against the defendant-State and in favour of the plaintiff. The contentions of the learned Deputy Advocate General are not accepted. RSA No. 109 of 1994 28. The trial Court decreed the suit of the plaintiff declaring him owner in possession over the suit land by virtue of adverse possession and the contrary revenue entries reflected in the record of rights were held to be wrong and illegal. On appeal filed by the defendant-State, the learned Additional District Judge (I), Shimla disagreed with the conclusion of the learned trial Court that the plaintiff has become the owner of the suit land by way of adverse possession. On appeal filed by the defendant-State, the learned Additional District Judge (I), Shimla disagreed with the conclusion of the learned trial Court that the plaintiff has become the owner of the suit land by way of adverse possession. The learned first appellate court has decreed the suit of the plaintiff as prayed for by him holding him to be a tenant of the suit land under erstwhile ruler of Balsan estate who was the owner of it before it was surrendered by the ruler under the Ceiling Act. The defendant-State has challenged the impugned judgment and decree in this second appeal and the appeal was admitted on the above said substantial question of law. In his evidence, the plaintiff stated that he is in cultivating possession of the suit land for the last 40 years in lieu of ‘Baith (which mean working for the owner and getting pay in terms of the produce in return for the service rendered). The statement of PW-4 Shri Jalam Singh agent and son of the erstwhile ruler of Balsan estate also makes it clear that the plaintiff was in possession of the suit land by virtue of his services as Baith. The evidence of the plaintiff that he used to pay Nisab Batai (equal share of the produce derived out of the suit land) to the erstwhile ruler in addition to the services as Baith and this part of his statement has been fully supported by PW-4. The plaintiff brought on record a copy of rapat roznamacha Ext. PW-l/A dated 31st October, 1973 which would go to show that PW Prakriti Bhushan made a report to the revenue officer requesting the latter that the Girdawari of the land in possession of certain persons by giving the details of Khasra Nos. including the name and land of the plaintiff be changed in their names. No doubt, that said entry in the record of rights on the basis of this document has not been given effect to, yet it proves that the plaintiff was in possession of the suit land atleast in the year 1973 and the landlord had no objection if the Girdawari was changed in his name. The oral evidence of PW-1 and his witness PW-4 has been corroborated by document Ext. PW-l/A that the possession of the plaintiff on the suit land as a tenant was for the last more than 35 years. The oral evidence of PW-1 and his witness PW-4 has been corroborated by document Ext. PW-l/A that the possession of the plaintiff on the suit land as a tenant was for the last more than 35 years. The first Appellate Court has recorded finding on appreciation of the evidence that PW-4 successor of the former ruler of Balsan estate has categorically admitted in his deposition that the plaintiff was paying Nisab Batal which is a kind of rent to the owner and therefore, the plaintiff was thus, the tenant under the erstwhile ruler and the plaintiff has adduced on record sufficient evidence to rebut the revenue entries regarding his possession over the suit land in the capacity of a tenant under the erstwhile ruler. The defendant-State has not led any evidence to rebut the evidence of the plaintiff and defendant-State have failed to prove on record that the suit land had vested with the State Government under the H.P. Land Ceiling and Land Holdings Act, 1973 free from all encumbrances. The defence of the defendant-State in the written statement was found to be incorrect about the presumption of correctness of truth attached to the Jamabandi because in the copy of Jamabandi for the year 1981-82 (Ext. P-l) the land is shown to be in ownership and possession of the defendant-State whereas according to the defendant-State, the land had been encroached upon by the plaintiff in the year 1980 and he was in illegal possession of the same from which he was to be evicted as per order of the revenue officer marked Ext. P-2. The first Appellate Court has rightly concluded that the defence of the defendant-State is per se contradictory and the revenue record does not depict the correct position which stands rebutted by the plaintiff. On reading of order of Assistant Collector dated 4.12.1994 Ext. P-2 purported to have been recorded by the Assistant Collector, 1st Grade, Theog under Section 163 of the Revenue Act has been passed against the plaintiff ex-parte as his counsel did not appear on 4.12.1994. In the teeth of the reliable and convincing evidence of the plaintiff which has remained unchallenged and unrebutted by the defendant-State, the finding of the learned first Appellate Court holding the plaintiff to be the tenant of the suit land cannot be found faulty. In the teeth of the reliable and convincing evidence of the plaintiff which has remained unchallenged and unrebutted by the defendant-State, the finding of the learned first Appellate Court holding the plaintiff to be the tenant of the suit land cannot be found faulty. The plaintiff had been in possession of the suit land by virtue of mutation dated 20.5! 1979 (Ext. DA). The defendant-State have led no oral or documentary evidence to substantiate their defence taken in the written statement. The first appellate Court has held the plaintiff a tenant of the suit land under the erstwhile ruler of Balsan estate and the said finding has been reached by the first appellate Court on sound appreciation of evidence, it is not permissible for this Court to disturb the well reasoned judgment in the second appeal. The first Appellate Court has rightly given effect to the documents Ext. PW-l/A and P-2 by elaborate reasons and I find no infirmity or perversity in the judgment and decree of the courts below which otherwise are concurrent, to interfere in this appeal. Both these documents have been correctly appreciated by both the courts below. Thus, the above said substantial question of law framed by this Court shall stand answered against the defendant-State. 29. No other point has been urged by the learned Counsel on either side in these appeals. 30. Consequently, for the above said reasons, both the appeals deserve to be dismissed and are accordingly dismissed. The parties, however, shall bear their own costs. Appeal dismissed.