Babu Balgobind Kumar and others vs Rai Behari Lal Mitter and others

Coutts, J.—This is a suit for declaration of the plaintiffs'' title to, and for possession of, a considerable area of land which is described in the plaint. The plaintiffs are the owners of village Nasum Nawaz, which is usually known as Gamail; the defendant first party are proprietors of a village contiguous on the east of Gamail, named Hathiondha, and the land in dispute is on the boundary of the two villages.

The plaintiffs'' case is that in the year 1902 there was a partition by which this land fell to their share but that at the time of the Settlement it was wrongly recorded in the name of the defendants, and that on the strength of this wrong record, the defendant first party dispossessed the plaintiffs and then settled the land with the defendant second party. The land is described partly by Settlement numbers and partly by Batwara numbers. The Survey numbers are 1414, 1415, 1416 and 1417, and the Batwara numbers are 1165 and 1168 to 1175 The land described by Batwara numbers lies principally to the east of the land described by Survey numbers and is coloured red in the map filed with the plaint, the land described by Survey numbers being coloured indigo.

The suit has been decreed only in respect of the land described by Survey numbers, which is a small portion of the whole land and the plaintiffs have appealed in respect of the rest.

It appears that, at the time of the Cadastral Survey, there was a boundary dispute between the villages Gamail and Hathiondha which was decided on the 13th June, 1904, by the Assistant Superintendent of Survey. By this decision the boundary was declared to be a black dotted line A C D E F G H I J K L M N O P Q R: this is the line which was adopted at the time of the Cadastral Survey, and it is this line which has been made the basis of the decision of the learned Subordinate Judge, and he has found that east of the line the plaintiffs have failed to establish possession within 12 years, and that consequently their suit is barred by limitation.

The Assistant Settlement Officer''s decision being so very largely the basis of the decision, it has been made the first ground of attack by the learned Counsel for the appellants, who contends that it was passed without jurisdiction. The learned Subordinate Judge treats the decision as having the force of a Civil Court decree, and the first point for consideration is, whether this is so or not. It is admitted that if the order is within jurisdiction it has the force of a Civil Court decree u/s 41 of the Survey Act, but the learned Counsel for the appellants contends that the plaintiffs have not established that the Assistant Settlement Officer had jurisdiction. Section 41 of the Bengal Survey Act (Act V of 1875) says that the boundary is to be determined by the Collector according to actual possession and

The order of the Collector under this section shall, until it be reversed or modified by competent authority, have the force of an order of a Civil Court declaring the parties to be in possession of the land in accordance with the boundary as determined by the Collector.

The person then who has jurisdiction u/s 41 is the Collector, and "Collector" is defined in the Act as an Officer who is generally or specially vested with the powers of a Collector for the purpose of this Act; and " Deputy Collector" includes any Deputy Collector to whom the Collector or the Superintendent of Survey may delegate any of his functions under this Act. Now, it appears from Notification No. 11574 L.R. dated the 7th December 1914, that a Revenue Officer appointed with the additional designation of Settlement Officer is vested with the powers of a Superintendent of Survey under the Bengal Survey Act and it is not disputed that he has the powers of a Collector u/s 41 of the Act. It is also admitted that he has power to delegate his function under this section to an Assistant Settlement Officer; but what is centended is, that it has not been shown that in fact there was delegation in the present case.

The contention is, in my opinion, without force. The point is an entirely new one taken for the first time in appeal before us. The delegation must have been by an office order and if the objection had been taken at the trial stage it would have been a simple matter to produce the order, or, if the order were destroyed in the ordinary course, as is probable, to have examined witnesses We are precluded from taking such evidence at the appellate stage and it would, in my opinion, be improper and unfair to remand the case on this ground The ordinary rule of law is that official acts are to be presumed to be legally performed and in the present case the jurisdiction of the Assistant Settlement Officer not having been questioned in the Trial Court, it must be presumed that he acted within his jurisdiction in passing the order of the 13th June 1904. This being so, his order has the force of a Civil Court decree as to possession, so that in regard to all the land west of the boundary line laid down by him it was in possession of the plaintiffs on the 13th June, 1904, and all the land east of that line was in the possession of the defendants. The present suit was filed on the 27th of June, 1916, so that the plaintiffs were not: in possession of the land east of the boundary line within 12 years of the filing of the suit, and their suit is barred by limitation in respect of this land unless they can establish that they had since that date dispossessed the defendants. Mr. Das, the learned Counsel for the appellants, frankly admits that he has not established this.

I may note here that in addition to the order of the Assistant Settlement Officer there is a mass of other evidence, both oral and documentary, to show that before the time of the decision of the boundary dispute and at that time, the plaintiffs and defendants were in possession of the land as therein defined. This evidence has been very carefully considered by the learned Subordinate Judge, but in view of my finding that the order of the Assistant Settlement Officer has the effect of a Civil Court decree as to possession, it is unnecessary to do more than say that I fully agree with his finding that on this evidence the plaintiffs were clearly not in possession even before the date of that order. [The rest of the judgment is not material to the report.]

Ross, J.

I agree.