Judgment

FAZAL ALI, J. :- This is a plaintiffs appeal by special leave against a judgment and decree of the Patna High Court dated 30th September, 1970 and arises in the following circumstances :

The plaintiff filed a suit for declaration of his title and recovery of possession and also a permanent injunction restRaming the defendant municipality from disturbing the possession of the plaintiff. It appears that prior to the suit, proceedings under S. 145 were started between the parties in which the Magistrate found that the plaintiff was not in possession but upheld the possession of the defendant on the land until evicted in due course of law.

2. In the suit the plaintiff based his claim in respect of plot No. 1735, Ward No. 1 of Ranchi Municipality on the ground that he had acquired title to the land by virtue of a Hukumnama granted to him by the landlord as far back as 17th April, 1912. which is Exhibit 18. Apart from the question of title, the plaintiff further pleaded that even it the land belonged to the defendant municipality, he had acquired title by prescription by being in possession of the land to the knowledge of the municipality for more than 30 years, that is to say, from 1912 to 1957.

3. The trial Court accepted the plaintiffs case and decreed the plaintiffs suit both on the question of title and adverse possession. The defendant filed an appeal before the Additional Judicial Commissioner, Ranchi (Chota Nagpur) which after a consideration of the evidence affirmed the finding of the trial Court and maintained the decree of the trial Court on both points. Thereafter, the respondent went up in second appeal to the High Court which was heard by a single Judge of the Court who held that there was no clear evidence to show that the plaintiff had obtained title by adverse possession and by his judgment of 17-2-1967 (hereinafter to be referred to as the first judgment) remanded the case to the trial Court for a decision only on the question of title. The effect of the order of remand was that so far as plaintiffs case that he had acquired title by prescription was concerned, it was finally decided against him. After remand the Additional Judicial Commissioner held that the municipality had proved its title to the land in dispute and accordingly dismissed the plaintiffs suit. The plaintiff then went up in appeal to the High Court which affirmed the finding of the Additional Judicial Commissioner and dismissed the appeal by its judgment of 30-9-1967 (or 30-9-1970 ?) (hereinafter referred to as the second judgment). Hence, this appeal by special leave.

4. Appearing for, the appellant, Mr. V. S. Desai, submitted two points before us. In the first place, he urged that the first judgment of the High Court by which it remanded the matter to the trial Court for a finding on the question of title was legally erroneous inasmuch as the High Court exceeded its jurisdiction under S. 100 of the Code of Civil Procedure by reversing pure finding of fact given by the two Courts below on the question of adverse possession as also on the question of title.

5. Secondly, it was contended that even so the finding of the High Court on the question of adverse possession was given without at all considering the materials and evidence on the basis of which the two Courts had concurrently found that the plaintiff had acquired title by adverse possession. It is true that the plaintiff did not come up in appeal before this Court against the first judgment of the High Court obviously because the order passed by the High Court was not a final one but was in the nature of an interlocutory order as the case had been remanded to the Additional Judicial Commissioner and if the said Court had affirmed the finding of the trial Court, no question of filing a further appeal to the High Court could have arisen. Thus, the appellant could not be debarred from challenging the validity of the first judgment of the High Court even after the second judgment by the High C