Bhup Narayan Singh vs Hira Lal

Dhavle, J.—This is an appeal by defendant 4, the Khorposhdar of mauza Pari. Plaintiff holds a mokarrari of mauza Kudagara in the district of Manbhum, lying immediately to the south of Pari and two other mauzas all included in the district of Hazaribagh. Plaintiff''s case was that during the Survey and Settlement operations in Manbhum he found, when pointing out the boundaries of Kudagara, that the boundary between the two districts had been recorded in the Hazaribagh settlement to the north of the proper boundary. He raised a boundary dispute accordingly. But the Survey authorities decided to adopt the boundary laid down in the Hazaribagh settlement. Two hillocks, called Ranidera and Harapahari (otherwise called Karmatungri) were thus excluded from Kudagara and included in Pari and the other villages lying along the northern boundary of Kudagara. Plaintiff therefore sued for a declaration that the hillocks appertained to his mauza of Kudagara and that the settlement record regarding the same is erroneous. The defence was that the record was correct, that the suit was barred u/s 62, Bengal Tenancy Survey Act, 1875, and also barred by limitation, as the defendants were, and the plaintiff and his predecessors had never been in possession of the disputed lands. It was also urged that the effect of the Survey entry being the dispossession of the plaintiff the suit as framed could not proceed. These pleas were all accepted by the Munsif who first tried the suit and who found on the evidence that the Commissioner who had been deputed to lay down on the settlement map the Revenue Survey boundary line on which plaintiff''s claim was based had not done so correctly. Plaintiff preferred an ''appeal which was heard by Babu Narendra Nath Banarji Subordinate Judge.

This officer held that though the Commissioner''s map may be incorrect, it was impossible to determine the question of plaintiff''s dispossession without correctly ascertaining the Revenue Survey line and its deviation if any, from the line adopted at the Cadastral Survey. He also held that as the Survey and Settlement authorities had not addressed themselves to this question, their adoption at the time of the Manbhum survey of the line adopt ted at the Hazaribagh Survey was not such a decision as to constitute a bar u/s 62, Bengal Survey Act, to the suit. Under the erroneous impression that plaintiff had claimed confirmation of possession, he also held that plaintiff was entitled to sue if his right was found to have been invaded by the survey boundary. He accordingly allowed the appeal and remanded the case to the lower Court for trial according to some directions. The Munsif who dealt with the case on remand came to much the same conclusions as the Munsif who had first disposed of the case, though in view of the finding of the appellate Court that the suit was not barred by the provisions of the Bengal Survey Act, he expressed no independent opinion on that point but felt compelled to hold that the suit was not barred by those provisions. As he dismissed the suit, plaintiff appealed and the appeal was heard by the Additional District Judge who allowed it after holding that the suit was not barred by Section 42, Specific Relief Act as the plaintiff was in actual possession of the disputed land. On the question whether the suit was barred by Section 62, Bengal Survey Act, the learned Additional District Judge does not seem to have expressed any definite opinion of his own, probably because he felt that he had no authority to sit in judgment on the view of the Subordinate Judge who had first heard the appeal and ordered a remand--a remand which had been previously challenged in the High Court, but without success because it had been ordered under Order 41, Rule 23, Civil P.C. It seems however from the observations of the Additional District Judge that he was inclined to take the view that Section 62, Bengal Survey Act, was no bar to the suit because the Manbhum Settlement authorities had not made any independent inquiry but had merely accepted as correct the decision of the Settlement authorities in Hazaribagh at the time they had surveyed the mauzas Jumra, Pari and Roria which lay immediately to the north of Kudagara.

It has been contended on behalf of the Khorposhdar of Pari that the finding of the lower appellate Court as regards plaintiff''s actual possession of the disputed land is vitiated by errors of law. ''The learned advocate for the plaintiff-respondent has urged that it is a finding of fact, but it is clear that a finding of fact is not binding in second appeal if it is marked by errors of law. The Kudagara Record of Eights is by statute entitled to the presumption of correctness, even if it followed the Hazaribagh Record of Eights in the matter of the boundary line between the two districts. It is true that there may have been no boundary dispute raised at the time the southern boundary of the mauzas in Hazaribagh was determined in the course of the Survey and Settlement of that district, but as was pointed out in Mazharul Ekbal v. Gopal Lal Ray 1924 Pat 719 the entry in the Record of Eights operates in the same way between landlord and tenant, as between landlords of the same or of the neighbouring estates or, it may be added of neighbouring mauzas, and the Hazaribagh Record of Eights which was adopted for Kudagara in the matter of the disputed boundary line cannot be ignored as the lower appellate Court has done merely on the ground that it is not shown to have been based on the decision of any boundary dispute. It must be added that it has never been the case of the plaintiff that either since the Hazaribagh Record of Eights which was finally published in 1912, or since the disposal in February 1920, of the boundary dispute raised by him in the survey of Kudagara, he has come into fresh possession of the land lying between the Revenue Survey, and the Cadastral Survey boundaries. The lower appellate Court has ignored all these considerations and arrived at its finding of possession in favour of the plaintiff "on the evidence of possession as adduced by the parties." The learned Additional District Judge has preferred the evidence of the plaintiff''s witnesses to that of the witnesses for the Khorposhdar of Pari on the ground that there are no reliable documents on the side of the defendants."

But he has completely ignored what had been pointed out by both the Munsifs who dealt with the case, namely, that the plaintiff''s witnesses had failed to point out their lands to the first Commissioner in the case with anything like approximate accuracy, and that the boundaries in the documents produced by the plaintiff were not specific enough to make a determination of the boundary between the mauzas possible; to describe the northern boundary as Gola Pargana for instance, can obviously give no assistance in a case in which it has to be found out where Gola Pargana ends and the plaintiff''s mauza of Kudagara begins. The learned Additional District Judge has also apparently failed to notice the fact that much as the plaintiff''s witnesses may speak of their possession of Ranidera, land called Ranidera is to be found in the Record of Eights of Pari no less than in that of Kudagara. Though we have the power in a proper case u/s 103, Civil P.C. to determine the fact of possession if it has been wrongly determined by the lower appellate Court by reason of the illegality of ignoring the presumption of correctness attaching to the Records of Eights of the two mauzas, the whole evidence has not been placed before us, and the appeal would have had to be remanded to the lower appellate Court for disposal according to law but for the fact that the plaintiff''s suit must fail on another ground. This takes me to the contentions of the parties on Section 62, Bengal Survey Act, and Section 42, Specific Belief Act. As to the latter, there cannot be any question that if the plaintiff was not in possession at the date of the suit, it was not open to him to sue for a mere declaration of title without also seeking the further relief of recovery of possession which he has definitely omitted to pray and pay for.

The lower appellate Court considered that Section 42, Specific Belief Act, was no bar as the plaintiff was admittedly in possession of the mauza. But his admitted possession of the mauza would not entitle the plaintiff to a mere declaration of his title to the disputed land which has been recorded by the Survey and Settlement authorities as lying outside the mauza. The position may however possibly have been different if it had been found in accordance with the law that the plaintiff was in actual possession of the disputed land as well. It has been contended on behalf of the appellant that the lower appellate Court was not entitled to find, as it has done, that the plaintiff was in possession, in the face of Section 62, Bengal Survey Act. Section 40 of the Act lays down that if in the course of a survey under the Act it comes to the notice of the Collector that a dispute exists as to any boundary which should be surveyed, the Collector, after holding such inquiry as he may deem necessary, may determine such boundary as thereinafter provided under the Act. Section 41 provides that the Collector shall determine the boundary according to actual possession, and cause it to be secured by boundary-marks. It provides, further, that the order of the Collector under the section shall, until it be reversed or modified by competent authority, have the force of an order of any civil Court declaring the parties to be in possession of the land in accordance with the boundary as determined by the Collector.

Sections 59 and 60 provide for appeals against orders u/s 41 and Section 62, says that no suit shall be brought to set aside an order ... deciding a boundary dispute, unless an appeal shall have been first preferred u/s 59 or Section 60 ... Now the surveys of Hazaribagh and Manbhum were made under the Bengal Survey Act, the Record of Bights being prepared under the Chota Nagpur Tenancy Act. So far as the Manbhum Survey and Settlement is concerned, there is also no question that a boundary dispute within the meaning of Section 40 was raised before the proper authority. It is also obvious that that dispute must have been determined under the Act, for the Survey and Settlement operations were completed in 1922. The effect of Section 62 of the Act was considered in Bisseswar Koeri v. Ram Pratap Singh 14 CWN 366, where, it was held that the Section is a bar to a suit by a plaintiff, against whom an order determining a boundary dispute has been made under the Survey Act, for confirmation of possession on the allegation that he has been in continuous possession from before the order, such an order having u/s 41 of that Act the effect of a civil Court decree which is binding on the parties as regards the question of possession. That was a case where the plaintiff had sued for confirmation of possession on declaration of title, alleging that he was in possession, and had proved his title but failed to prove possession; and the learned Judges held that the Court ought not to award him recovery of possession, unless on the facts alleged in the plaint the action amounted to one for restoration of possession.

The learned Advocate for the respondent has relied on Bara Lal Nawal Kisshore v. Jaleshwar Dayal Singh 1917 Pat 357, but that was a case where the plaintiff had sued for recovery of possession on a declaration of his title and had made his claim on the express footing that he had been dispossessed by reason of the Survey and Settlement proceedings. Chamier, C.J., and Jwala Prasad, J., on that occasion pointed out that Section 62, Bengal Survey Act, had no application to a suit of that character, and distinguished Bisseswar Koeri''s case Bisseswar Koeri v. Ram Pratap Singh 14 CWN 366 as one in which the plaintiff had sued for confirmation of possession, alleging but failing to prove-that he was in possession, and therefore barred by Section 62, Survey Act. In the present case the plaintiff sued on the footing that he had been in continuous possession of the disputed land, and the lower appellate Court has accepted the claim. This was clearly contrary to Sections 41 and 62, Bengal Survey Act, unless the determination of the boundary, such as it was, could be treated as a nullity. The learned Advocate for the respondent was not prepared to go quite so far as Babu Narendra Nath Banerji did when he heard the plaintiff''s appeal at first. The view of that learned officer was that no real dispute could be held to exist unless it was ascertained that the Cadastral Survey line deviated from the Revenue Survey line, and that the mere adoption of the Hazaribagh boundary line was not a decision within Section 41, Bengal Survey Act so as to be impressed with the sanctity of a decree of a civil Court."

The learned Subordinate Judge was mistaken both in his reasoning and in his law. There could be no doubt about the existence of a dispute when the plaintiff claimed as part of Kudagara land lying to the north of the southern boundary of Jumra, Pari and Roria as determined at the Hazaribagh Survey and Settlement. Whether or not the Revenue Survey line was relaid on the spot in order to find out how far exactly the cadastral survey line deviated from it, the dispute was there, and the error into which the learned Subordinate Judge fell lay in his failure to see that though it is true enough that it could not be said whether and how far, if at all, the plaintiff had been dispossessed without ascertaining whether the cadastral line deviated from the Revenue Survey line, the Record of Eights carried a statutory presumption of correctness in support of defendant''s possession, and that unless this presumption was displaced by evidence, the plaintiff was bound to fail even though the Revenue Survey boundary was not ascertained. The learned Subordinate Judge was further in error when he held that the adoption of what may be called the Hazaribagh line was no determination of the boundary according to actual possession within the meaning of Section 41 of the Act. It was nobody''s case that possession had changed since the determination of the Hazaribagh line, and that determination also carried a statutory presumption of correctness u/s 84(3) Bara Lal Nawal Kisshore v. Jaleshwar Dayal Singh 1917 Pat 357, Chota Nagpur Tenancy Act. The contention that the Manbhum Survey and Settlement authorities did not determine the boundary of Kudagara according to actual possession for themselves is fallacious. They did determine a boundary, and they could only have determined it according to actual possession, and they evidently proceeded on the statutory presumption of correctness attaching to the Hazaribagh line, for it was not the plaintiff''s case that possession had since changed.

If the plaintiff conceived that there was any error in the procedure adopted by them, it was open to him to appeal u/s 59, and the law is quite clear that in default of such an appeal, plaintiff is not entitled to sue on the footing that he was nevertheless in possession. The learned Advocate for the respondent has urged that the presumption of correctness attaching to the Record of Rights can be displaced by a suit, and that therefore the plaintiff''s suit was competent. The answer to this is that the entry in the Record of Eights relating to the boundary between the two mauzas, unlike many other entries, is governed by Section 62, Bengal Survey Act, as was so clearly pointed out in Bisseswar Koeri v. Ram Pratap Singh 14 CWN 366. At the time the plaintiff brought his suit, the position in my view was that in the eye of the law he was out of possession but that it was open to him to bring a suit to establish his title and recover possession or, in the alternative, show that he had come into possession since the dispossession implicit in the decision of the boundary dispute u/s 41, Bengal Survey Act. As the plaintiff took neither of these courses, but merely sued for a declaration of his title without asking for any relief as regards possession, the suit was barred u/s 42, Specific Relief| Act. It may perhaps be added that no attempt was made to amend the suit in spite of the objection taken by the defendant that as the plaintiff was never in possession of the lands and as the effect of the survey entry was to dispossess him the suit could not proceed until full court-fees were paid; if that had been done at the proper time (not that any attempt has been made even now to remedy the defect), the plaint would also doubtless have been amended. I would therefore allow the appeal and dismiss the suit with costs in all Courts. Just before the delivery of this judgment, the learned Advocate for the plaintiff-respondent asked for an opportunity to amend the plaint. In my opinion this prayer is made much too late to be entertained.

Agarwala, J.

I agree.