S. Acharya, J.
1. The plaintiff has preferred this appeal against the reversing decision of the court below. The plaintiff's suit is for declaration of his right, title and interest over the plaint. A schedule lands and for confirmation, or in the alternative for recovery of possession thereof,
2. The plaintiff's case, in short, is that: The plaint A schedule lands are the ancestral property of the plaintiff and that he was in possession of the same. The plaint B schedule land, which is a part of the plaint A schedule lands, was encroached upon by defendant No. 1 and his father Shyamsundar Das in the year 1967, and in a proceeding Under Section 145 Cr.P.C. between the parties possession of the suit B schedule land was declared in favour of defendant No. 1. Hence this suit.
3. Defendant No. 1 only contested the suit. His case in short is that: About 40 years back his father purchased from one Ananta Charan Patnaik 11/2 mans of land adjoining the land of the plaintiff. Thereafter he encroached a portion of the government land and the land of the plaintiff adjoining the said land purchased by him and amalgamated all the said lands into one compact Kiari, constructing ridges on all sides of that Kiari and continued to possess the same since that time. He has denied all the plaint allegations in respect of the B schedule land and has asserted that he has perfected his title to that land, by adverse possession for more than 30 years.
4. The trial court negatived the defendant's claim of adverse possession over the B schedule land and decreed the plaintiff's suit.
5. The appellate court on independent assessment of the evidence on record has arrived at the finding that defendant No. 1 has been openly cultivating the B schedule land for about 20-30 years and so he has perfected his title to the same by adverse possession.
6. It is urged by Mr. Sinha, the learned counsel for the appellant, that the finding of the court below on the question of adverse possession is incorrect as it did not appreciate the evidence on record properly and did not consider Ext. 4, a piece of material evidence which completely goes against the said finding. According to Mr. Sinha as the finding on the question of adverse possession is not a concurrent finding, this Court in second appeal can reassess the entire evidence on record to give its own finding on that question. The above proposition submitted by Mr. Sinha is absolutely incorrect. Their Lordships of the Supreme Court in very clear and unambiguous terms have held that in second appeal the High Court's jurisdiction is confined to questions of law. If the appellate court records a definite finding of fact, it is not open to the High Court to attempt to reappreciate the evidence and give its own finding on that aspect (See AIR 1961 SC 1097).
In the decision reported in AIR 1967 SC 17S6 (Mangal Singh v. Smt. Rattno) their Lordships have again held that the finding of the first appellate court which is the final court for deciding questions of fact, is binding on the High Court.
In the decision of this Court reported in (1967) 33 Cut LT 601 (Banshidhar Mohapatra v. Souri Samal) it has been held that even if appreciation of evidence made by the lower appellate court is patently erroneous and the finding of fact thus recorded is grossly erroneous, no substantial error or defect in the procedure is introduced thereby, and the High Court cannot interfere in second appeal in the matter of appreciation of evidence.
In the case reported in AIR 1959 SC 57 (Deity Pattabhiramaswamy v. Hanyamayya it has again been held that the provisions of Section 100, CPC are clear and unambiguous, There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error may seem to be. A judge of the High Court has, therefore, no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate court based upon appreciation of relevant evidence. In this case the practice of some Judges of High Courts disposing of second appeals as if they were first appeals wag deprecated,
In the decision reported in AIR 1963 SC 302 (V. Ramachandra Ayyar v. Ramalingam Chettiar) their Lordships have held that appreciation of evidence adduced by the parties on the merits of the case is not an error or defect connected with or relating to the procedure. Their Lordships have expressly stated that even if the appreciation of evidence made by the lower appellate court is patently erroneous and the finding of fact recorded in consequence thereof is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure.
The comment of Mr. Sinha that the above-mentioned observations apply only to concurrent findings of fact is incorrect as the observations on the point in the decisions reported in AIR 1961 SC 1097; AIR 1967 SC 1786 and (1967) 33 Cut LT 601 are in respect of findings of fact of the appellate court reversing those of the trial court on the very same questions of fact.
7. It is of course true that a finding of fact of the appellate court can be reversed or interfered with if it suffers from any substantial error or defect in the procedure. Several instances have been given in some of the above-mentioned and other Supreme Court decisions by way of illustrating the cases of substantial error or defect in the procedure. A finding of fact can be said to suffer from substantial error or defect in the procedure if the said finding is arrived at completely ignoring a particular piece of important and material evidence which has the effect by itself to unsettle that finding of fact in its entirety.
Now it hag to be seen whether the finding of the court below regarding adverse possession suffers from any substantial error or defect in the procedure, In this connection Mr. Sinha drawg my attention to Ext. 4 and certain statements in the cross-examination of D.Ws. 2, 3 and 4, D.W. 3 in para 5 of his deposition has stated that -- 'Dispute regarding the suit land took place about 4 to 5 years back and prior to that there was no dispute regarding the suit land.' D.W. 4 in para 4 of his deposition has stated that -- 'About 5 or 6 years back a dispute started first with the plaintiff regarding the suit land. Prior to that there was no dispute with the plaintiff regarding the suit land, At the tune of demarcation of the land the dispute arose about 6 years back,' There Is nothing in the said statements to show that the suit B schedule land was encroached upon by defendant No. 1 for the first time about 4 to 6 years back. Those statements when considered in the context and perspective of their entire deposition go to show that there was a dispute between the parties about 4 to 6 years ago about that land. Admittedly, a proceeding Under Section 145 Cr. P. C. had to be initiated between the parties in the year 1968. The dispute mentioned in the above statements refers to the dispute giving rise to the said proceeding, Moreover, merely from the fact that the parties started disputing amongst themselves since about 4 to 6 years prior to their deposition, it cannot be said that defendant No. 1 was not in possession of the suit B Schedule land prior to that time, for both these and other witnesses have categorically stated in a consistent manner that defendant No. 1 was in possession of the said land for the last more than 30 years by amalgamating the same with his own land.
The one sentence of D.W. 2 in cross-examination that at the time of encroaching upon the government land and the suit B schedule land the new ridge was constructed and since then the dispute started between the parties, referred to by Mr. Sinha, does not have the effect of wiping out his consistent evidence and the other overwhelming evidence on record that defendant No. 1 was in possession of the said land since more than 30 years. The words therein 'since then the dispute started' when read in the context of his entire evidence appear to have been made inadvertently in an unguarded moment.
I am satisfied that the above-mentioned statements, which only were referred to by Mr. Sinha, do not go to unsettle the finding of the court below on the question of adverse possession.
8. Mr. Sinha in this connection also referred to Ext. 4, the certified copy of the deposition of Shyamasundar Das, the father of defendant No. 1, In T.C. 32/68 in the year 1968. In that case he, while denying several defence suggestions, in his cross-examination denied the suggestion that he had encroached upon the land of the accused. This answer was elicited from this witness when several suggestions were thrown at him in a complex sentence. Apart from that, defendant No. 1's fetther by then had possessed that land since a long time and had perfected his title to that portion by adverse possession, and he had not encroached upon the accused's land just before that criminal case. In his examination-in-chief he had stated that he was possessing 21/2 mans of the land in question since more than 30 years. This 21/2 mang of land includes the land encroached by him and the 1 1/2 mans of land purchased by him from one Ananta Charan Fatnaik about more than 30 years back. From his evidence, read as a whole, it appears that as he was in uninterrupted possession of that 2 1/2 mans of land for a long time, he denied to have encroached any further land belonging to the accused. The above one sentence elicited while throwing suggestions to a witness In cross-examination has not the effect of unsettling the finding of the appellate court on adverse possession especially because that finding is based on a convincing consideration of the evidence on record taken as a whole.
Not only the appellate court, the trial court also, while negativing the defendant's claim of adverse possession, had not taken Ext. 4 into consideration. On a perusal of the Impugned judgment and on going through the relevant evidence on record I am satisfied that the finding of the appellate court on the question of adverse possession is based on relevant evidence on record and is quite convicing, and I do not see any reason to interfere with the said finding in this second appeal,
9. Mr. Sinha's submission that in any view of the matter the court below should have granted the plaintiff's prayer at least in respect of the A schedule lands minus the B schedule land, as the defendants have no claim over that Portion of the land.
The plaintiff In this case asked for a declaration of Ms right, title and interest in the A schedule lands. It has been found that defendant No. 1 has perfected his title by adverse possession over the B schedule land, which is a part of the A schedule lands. The defendants do not claim any right over any portion of the A schedule lands except the B schedule portion of it on which defendant No. 1 has perfected his title by adverse possession.
The trial court has decreed the suit in its entirety. So defendant No. 1, being aggrieved by the finding of the trial court with regard to the B schedule land claimed by him, preferred an appeal against the finding of the trial court The appellate court while deciding the defendant No. 1's said claim in his favour, should have declared the plaintiff's title in respect of the other portion of the A schedule lands on which defendant No. 1 had not laid any claim. While allowing the appeal of the defendant No. 1 with regard to the B schedule land the court below was not justified in stating that defendant No. 1 had acquired title over the 'suit land', which, aa is evident from the plaint, includes also the other portion of the A schedule lands, not claimed by defendant No. 1. On the findings of the court below the title of defendant No. 1 only in respect of the B schedule land is to be and is hereby declared, whereas the title of the plaintiff in respect of the other portion of the A schedule lands, i.e. the A schedule lands minus the B schedule land, has to be and Is hereby declared in his favour and the plaintiff's prayer for confirmation of possession over that particular portion of the land has to be and 5s hereby decreed.
10. The appeal accordingly is partly allowed to the extent as stated above. Each party to bear his own costs of this appeal.