JUDGMENT 1. - This second appeal under Section 100 CPC is directed against judgment and decree dated 22.05.1982 passed by Additional District Judge, Sirohi, whereby, judgment and decree dated 22.03.1978 passed by Munsif, Desuri has been upheld. 2. The facts in brief may be noticed thus: the plaintiff - Daulat Singh (since deceased) filed a suit against the defendants appellants seeking permanent injunction restraining them from dispossessing him from the suit land; it was, inter alia, claimed in the plaint that the land in question was sold through a Patta granted by Gram Panchayat, Rani on 23.05.1958 though the plaintiff was in possession of the land since 1943 and had established a godown for storing coal; an agreement dated 07.01.1958 was executed among Sarpanch, Gram Panchayat, Rani, plaintiff and officers of Western Railways, wherein, it was accepted that the land was of plaintiff's possession and was comprised in the Patta and all the rights between the parties were determined by the said agreement; on 01.08.1969 agent of the Railways informed plaintiff that defendant No. 3 - Assistant Engineer, Western Railway has directed him to remove plaintiff's possession, which was resisted and where after he was threatened with dispossession; ultimately, it was prayed that the defendants be restrained from interfering in the plaintiffs peaceful possession. 3. The suit was resisted by the defendants-appellants and it was contended that vide agreement dated 07.01.1958 it was admitted that the land was in possession of the plaintiff, but the possession was vacated on 26.06.1968, however, the plaintiff again trespassed on the land, therefore, proceedings were initiated for eviction of plaintiff from the land in question, the title of the plaintiff and the validity of the Patta was questioned. 4. 4. Based on the pleadings of the parties, the trial court framed nine issues; issue No. 4 which pertained to validity of Patta dated 23.05.1958 and the validity of notice under Section 80 CPC were decided in the terms that as the Patta was unregistered and unstamped, the same was inadmissible in evidence and could not even be used for collateral purposes and the notice issued by the plaintiff was valid; issue No. 6 which pertained to maintainability of the suit, in view of the provisions of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 was decided against the appellants and issue No. 7 pertaining to sufficiency of Court fees was decided in favour of the defendants and plaintiff was required to pay the deficient Court fees, as such, the issue Nos. 4, 5, 6 and 7, which were preliminary in nature, were decided during the pendency of the suit. 5. On behalf of the plaintiff nine witnesses were examined and on behalf of the defendants seven witnesses were examined. 6. After hearing the parties, the trial court by the impugned judgment decided issue Nos. 1, 2, 3, 8 and 9 and after discussing the oral and documentary evidence came to the conclusion that the plaintiff was utilising the land since beginning; agreement Exhibit-3 was executed among the plaintiff, Gram Panchayat and Railways, based on which, it was agreed that the plaintiff would not raise any construction upto 100 ft. from the Railway line and as plaintiff was in continuous and peaceful possession of the suit land since 1943, the plaintiff cannot be dispossessed; the submissions made by the Railways regarding competence of officers to execute Exhibit-3 was negated on the ground that the defendants in their written statement had themselves relied on the said agreement Exhibit-3; based on the above conclusions issue Nos. 1, 2, 3 and 9 were decided in favour of the plaintiff and against the defendants and defendants were restrained from dispossessing the plaintiff from the suit land; however, it was held that the plaintiff cannot raise any construction upto 100 ft. 1, 2, 3 and 9 were decided in favour of the plaintiff and against the defendants and defendants were restrained from dispossessing the plaintiff from the suit land; however, it was held that the plaintiff cannot raise any construction upto 100 ft. from the Railway line; the operative portion of the judgment dated 22.03.1978 passed by the trial court reads as under:- " mijksDr foospu ,oa okn fcUnqvksa dks fu.kZ; ds vk/kkj ij ;s vkns'k fn;k tkrk gS fd oknh }kjk is'k fd;k gqvk okn mlds gd esa ,oa izfroknhx.k ds fo:) r; fd;k tkrk gS vkSj gqDe bernkbZ [kkeh bl vej dk tkjh fd;k tkrk gS fd izfroknhx.k okn i= ds in la[;k 1 esa of.kZr tehu ds mi;ksx o 'kkfUriw.kZ dCts esa oknh dks csn[ky ugha djsaxs vkSj oknh }kjk is'k fd;s uD'kk ,Dth 10 ds vuqlkj jsyos ykbZu ds 100 QhV dh nwjh rd dksbZ fuekZ.k dk;Z ugha gksxkA okn ifjfLFkfr;ksa dks /;ku esa j[krs gq, ;s vkns'k fn;k tkrk gS fd nksuksa i{kdkju viuk viuk [kpkZ ogu djsaxsA " 7. Feeling aggrieved, the appellants filed first appeal before the District Judge, Sirohi, who after hearing the parties and critically re-appreciating the oral and documentary evidence came to the conclusion that the plaintiff was in possession of the suit land since 1943 and the trial court had decided issue Nos. 1, 2, 3 and 9 correctly in favour of the plaintiff and, consequently, dismissed the appeal. 8. This second appeal was admitted by this Court on 17.12.1982 and following substantial questions of law were framed:- "(1) Whether the two courts below were justified in granting a perpetual injunction in favour of plaintiff respondent merely on the ground that the plaintiff was in peaceful enjoyment of the land since 1943? (2) Whether the two courts below were justified in recording the finding that the plaintiff was owner of the land in dispute on the basis of the evidence on record?" 9. (2) Whether the two courts below were justified in recording the finding that the plaintiff was owner of the land in dispute on the basis of the evidence on record?" 9. It is submitted by learned counsel for the appellant that both the courts below fell in error in coming to the conclusion that the plaintiff was in peaceful possession of the land in question and merely because plaintiff was in peaceful possession of the land in question, no injunction could have been granted by the trial court protecting his possession as under issue No. 4, the trial court had found that the Patta dated 23.05.1958 issued in favour of the plaintiff was illegal; it was further submitted that in any case the courts were not justified in deciding issue No. 1 in favour of the plaintiff, which pertained to his ownership as once issue No. 4 was decided against the plaintiff and neither any cross-objections were filed nor any challenge was given to the said finding, the finding on issue No. 1 cannot be sustained; it was further submitted that the basis for grant of decree and dismissal of appeal is Exhibit-3, however, the officers, who had 5 executed the said agreement were not competent and, as such, no reliance could have been placed on the said agreement by the courts below and, consequently, both the judgments passed by the courts below deserve to be set aside and the suit deserves to be dismissed. 10. Respondent No. 1 present in person made submissions and supported the findings recorded by both the courts below; it was submitted that the questions framed by this Court are essentially questions of fact and are concluded by concurrent findings of two courts below and, therefore, the appeal itself is not maintainable; both the courts below having found the plaintiff in settled possession, which is apparent from the evidence available on record, the plaintiff cannot be dispossessed from the suit property without due process of law; submissions were also sought to be made regarding validity of the Patta and finding on issue No. 4 and it was prayed that the appeal be dismissed. 11. Reliance was placed on Krishna Ram Mahale v. Mrs. 11. Reliance was placed on Krishna Ram Mahale v. Mrs. Shobha Venkat Rao : AIR 1989 SC 2097 , Prataprai N. Kothari v. John Braganza : 1999 (2) RLW SC 292 and Rame Gowda v. M. Vardappa Naidu : AIR 2004 SCW 4205 . 12. I have considered the rival submissions made by learned counsel for the appellant and the respondent present in person. 13. At the outset it may be noticed that the plaintiff in his suit specifically made reference to the agreement dated 07.01.1958 in the following terms:- " 2- ;g gS fd 7-1-1958 dks xzke iapk;r jkuh ds ljiap oknh o osLVuZ jsyos ds vkyk vQljku ds ,i:oy ls b0,p0 fo'okl ih0MCyw0vkbZ0 osLVuZ jsyos ds chp vkilh le>kSrk gksdj bdjkjukek rhuksa dk nLr[krh fy;k x;k ftlesa mijksDr tehu oknh dh iV~Vk'kqn dCtk 'kqn dks;yk dk xksnke ekuh xbZ o jsyos oks oknh ds njE;ku bl tehu ds eqrfYyd reke gddkr r; ik fy;s x;s oks fMjehu gks x;s] udy gejkg is'k gS] izfroknhx.k mlds ikcUn gSA " 14. In the written statement in reply to para 1 & para 2 of the plaint, inter alia, the following assertions were made:- "1. ...........The true facts are that the plaintiff had admitted in writing on 7.1.58 that the land in question had been encroached upon under a bona fide error, thinking Railway wire fencing as the last Railway boundary and the actual Railway boundary posts were considered as 'B' class land. He after realising the mistake himself agreed in writing to remove his coal stacks outside the Railway boundary. In pursuance of the above writing, the plaintiff removed the encroachment immediately........ 2. That para 2 of the plaint is not admitted in its present form. The construction put by the plaintiff on the Agreement dated 7.1.58 is clearly unwarranted in law. A bare reading thereof would give out its correct interpretation." 15. It would be noticed that nowhere in the written statement the competence of the officers, who had executed the agreement was questioned, on the contrary, the defendants had in fact relied on the said agreement; under the agreement (Exhibit-3) it was noticed as under:- "on enquiry it is found that late Thakur Sahib of Falna erroneously permitted Shri Daulat Singh to take possession of the land actually belongs to Railway. On abolition of the Jagirdari system the land was taken over by the Gram Panchayat, Rani who have accepted the usual rent from the party. The Sarpanch Rani accepts the error with great regret. In order to make Shri Daulat Singh vacate the plot of land occupied by him, proper case will have to be fought out through Civil courts which would again take years to finalise as such the following proposals have been agreed upon subject to further approval by Superior Railway Authority land on plan No. 25604 shown in yellow shade be further relinquished in favour of Gram Panchayat Rani and Shri Daulat Singh as agreed to remove his coal stacks outside the proposed Railway Boundry and further agreed to follow the laws of the railways in constructing any building etc. within 100 ft. of the railway boundry, it is recommended that Shri Daulat Singh may please be allowed to continue his business just outside Railway land without constructing any structure within 100' of the Railway Boundry." 16. From the above status of pleadings as well as the document (Exhibit-3), it is apparent that the plaintiff was in possession of the suit land in question since before the agreement was entered into between the parties on 07.01.1958 and it was agreed between the parties that the plaintiff would remove his coal stacks outside the proposed Railway boundary and would follow the law of the Railways in not constructing any building within 100 ft. of the Railway boundary; from either oral or the documentary evidence, the defendants have failed to prove that the plaintiff was at any point of time removed from the suit property as claimed by them and the finding recorded by both the courts below based on critical analysis of the oral and documentary evidence could not be shown to be perverse by learned counsel for the appellants; once it is found as a fact that the plaintiff was in peaceful possession of the land in question for a long time, the trial court was perfectly justified in granting injunction against the defendants restraining them from dispossessing the plaintiff from the suit property; the trial court as noticed hereinbefore further clarified that the plaintiff would not raise any construction within 100 ft. of the Railway line. 17. of the Railway line. 17. So far as substantial question No. 1 (supra) is concerned, the issue stands settled by several pronouncements of Hon'ble Supreme Court, wherein, it has been held that plaintiff in settled possession is entitled to protect his possession and grant of injunction in such circumstances would be proper; in one such pronouncement Hon'ble Supreme Court in the case of Rame Gowda (supra) held and observed as under:- "8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property beloging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a filmsy character, or recurring, intermittent, stray or casual in nature or has just been committed, while the rightful owner did not have enough time to have recourse of law. In the last of the case, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner. 9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. In the last of the case, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner. 9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram and Ors. v. Delhi Administration, (1968) 2 SCR 455 , Puran Singh and Ors. v. The State of Punjab, (1975) 4 SCC 518 and Ram Rattan and Ors. v. State of Uttar Pradesh, (1977) 1 SCC 188 . The authorities need not be multiplied. In Munishi Ram and Ors.'s case (supra), it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the right owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and re-instate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an instruction upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh and Ors.'s case (supra), the Court clarified that it is difficult to lay down any hard and fast rule as to when the 'settled possession' must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt and concealment by the trespasser. In Puran Singh and Ors.'s case (supra), the Court clarified that it is difficult to lay down any hard and fast rule as to when the 'settled possession' must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt and concealment by the trespasser. The phrase settled possession does not carry any special charm of magic in it, nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The Court laid down the following tests which may be adopted as a working rule for determining the attributes of 'settled possession': (i) that the trespasser must be in actual physical possession of the property over a sufficiently long period; (ii) that the possession must be to the knowledge (either express of implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would however, be a matter to be decided on the facts and circumstances of each case. (iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and (iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession." 18. So far as the substantial question No. 2 (supra) is concerned, it would be appropriate to notice issue No. 1 and issue No. 4 as framed by the trial court, which read as under:- " 1- D;k okn ds in la[;k 1 esa of.kZr Hkwfe oknh dh feyfd;r dh dCtk'kqn gS\ ih0 4- D;k fodz; foys[k uEcjh 171 fnukad 23-5-1958 xSjdkuwuh gS\ Mh0 " 19. While the issue No. 1 was as to whether the land described in para 1 of the plaint was of the ownership and possession of the plaintiff and issue No. 4 related to the validity of Patta dated 23.05.1957, the trial court did not deal with the issue Nos. 1, 2, 3 and 9 separately, but while deciding the said issues together based on its finding regarding the peaceful possession of the plaintiff since the year 1943, it was observed/ordered that issue Nos. 1, 2, 3 and 9 are decided in favour of the plaintiff. 20. In view of the nature and wordings of issue No. 1, it is the apprehension expressed by learned counsel for the appellant that though the issue No. 4, which related to the validity of Patta in favour of the plaintiff, has been decided against the plaintiff, in view of the fact that issue No.1 has been ordered to have been decided in favour of plaintiff, the plaintiff would claim title as well on the suit property, which issue in fact has neither been decided nor such a finding in teeth of finding on issue No. 4 could be returned on issue No. 1. 21. From a perusal of the finding of the trial court, which has been upheld by the first appellate court, the entire emphasis of both the courts below has been on the possession of the plaintiff and a finding has been returned as noticed hereinbefore that as plaintiff is in peaceful possession, he is entitled for decree of injunction against the defendants. Indeed in view of the finding on issue No. 4, the issue pertaining to ownership could not be held in favour of the plaintiff. Therefore, looking to the nature of issue No. 1 as framed by the trial court, it is held that issue No. 1 stands partly proved in favour of the plaintiff only to the extent that he is in possession of the suit property, as such, the substantial question No. 2 framed by this Court would stand answered by way of above modification. 22. 22. So far as the plea raised by the respondent regarding finding on issue No. 4 is concerned, admittedly neither any cross-objection was filed in the first appeal nor the finding on issue No. 4 was questioned before the first appellate court under Order 41, Rule 22 CPC even in aid of the decree passed in favour of the plaintiff, the issue cannot be permitted to be raised at the second appellate stage.Consequently, the appeal is partly allowed. The finding on issue No.1 is modified to the extent noticed hereinbefore. However, the decree passed by the trial court as upheld by the first appellate court does not call for any interference.No order as to costs.Appeal partly allowed. *******