Brindraban Prasad vs Gopal Saran Narayan Singh

Sen, J.—This appeal arises out of a suit instituted by the appellant for confirmation of possession or, in the alternative for recovery of possession of 30 bighas of land which, according to his case, formed part of his own village Kahudag, although recorded in the cadastral survey as part of the defendant respondent''s village Samia.

The learned Munsif decreed the suit.

On appeal the learned District Judge has reversed the decision of the learned Munsif.

The reasoning on which the learned Munsif proceeded is as follows: first, it being the case of both parties that the lands are jungle lands he holds that possession must go with title. He observes, however, that both the parties have examined witnesses to prove that each of them appropriated the trees of the jungle. He declares the witnesses on both sides to be unsatisfactory being creatures of either of the two parties. In the situation thus caused he concludes that it being jungle land possession must be presumed with the rightful owner. Next he proceeds to consider the question as to whether the lands appertained to mauza Kahudag or mauza Samia. A commissioner was appointed in the suit to compare and relay the revenue survey map and the cadastral survey map. His report showed that according to the revenue survey map, the lands in suit appertained to the appellant''s mauza, Kahudag. Accepting the report of the commissioner and the evidence of the amin the learned Munsif came to the conclusion that the disputed lands appertain to mauza Kahudag. Hence, on the principle above mentioned he finds possession in favour of the appellant.

The argument in this Court has proceeded somewhat on the same lines as the reasoning adopted in the judgment of the learned Munsif. It is urged by the learned advocate appearing for the appellant that the disputed land being jungle land cannot admit of possession and that, therefore, the cadastral survey entry which would ordinarily be presumptive evidence of actual possession is of no avail in this case; that the evidence of possession adduced by both sides being unsatisfactory, the report of the commissioner, to the effect that the lands fall within mauza Kahudag according to the revenue survey map, should have been accepted, and the judgment and decree of the learned Munsif should have been upheld by the Court of appeal below.

Several matters fall to be considered in connexion with these contentions. It is not quite accurate to say that just because the lands are described as jungle lands the entry in the Record-of-Rights, not being an entry with regard to agricultural land, does not raise a presumption in favour of its accuracy.

It has been hold that although, strictly speaking, the presumption u/s 103-B is not applicable to non-agricultural land to the extent to which it is applicable to agricultural land still such entry raises some presumption with regard to the fact recorded in it: Sasi Kanta Achariya v. Sandhya Mony Dassya AIR 1921 Cal. 236 ; Chand Mia Munshi and Others Vs. Tukamia and Others, . Moreover, in waste as well as jungle lands possession may be exercised by grazing cattle, putting up boundary marks or fences, and the like. In this case, evidence was adduced on both sides and an endeavour was made to prove by moans of witnesses actual possession of the lands in question. If the plaintiff asserts that he exercised acts of ownership and adduces evidence in support thereof which is disbelieved by the Court he cannot turn round and rely only upon the presumption raised in his favour by the revenue survey map: Rakhal Chandra Ghose v. Durga Das Samanta AIR 1922 Cal. 557. This is just what the plaintiff-appellant is endeavouring to do in the present case. It must be remembered that the revenue survey map is only evidence of the state of affairs at the time when the map was made; that is, at a period about 70 years prior to the institution of the suit out of which this appeal arises. As against that we have on the side of the defendant-respondent the cadastral survey map which must be taken to speak of the period when the cadastral survey took place, that is about the year 1915 or 1.916. Reliance has been placed by the appellant on the ruling in Mirza Shamsher Bahadur v. Munshi Kunj Behari 12 C.W.N. 273. This case is of no assistance to the appellant. There have been a series of decisions beginning with the decision of the Privy Council in the case of Runjeet Ram Panday v. Goburdhun Ram Panday 20 W.B. 25 (P.C) which lay down that the ordinary presumption is that possession goes with title, but the presumption cannot be of any avail in the presence of clear evidence to the contrary. Where there is strong evidence of possession on the part of the respondent opposed to evidence apparently strong also on the part of the appellant their Lordships have thought that in estimating the weight due to the evidence on both sides the presumption may, in the peculiar circumstances of the case, be regarded, but where the evidence of witnesses on both sides is equally unworthy of reliance no such'' presumption can be made. In support of this proposition reference may be made to Lala Singh v. Latif Hossein [1915] 21 C.L.J. 480.

The question, therefore, upon which the determination of this appeal depends is whether the- revenue survey map is to prevail, or the cadastral survey entries and map are to prevail. The learned District Judge has proceeded on the following grounds:

First, the commissioner appointed to re-lay the maps did not start from any fixed point. The Munsif also had noticed this mistake, but he was inclined to overlook it in consideration of the fact that the commissioner had taken as his starting point the meeting point of the Grand Trunk Road which in all probability had not undergone any change of position. Secondly, the revenue survey map is no doubt evidence of title and possession but where there is no satisfactory direct evidence of acts of possession on the part of either of the parties the evidence of possession of the cadastral survey entry must prevail until it is rebutted. In this case there is further evidence in the shape of Ex. A which is a memorandum of a local enquiry in a boundary dispute case held on the 26th January 1915, by an Assistant Settlement Officer. On the basis of the recommendation contained in that memorandum the respondent was recorded in the map as in actual possession of the disputed land.

Thirdly, there is nothing to show actual possession of the plaintiff-appellant within 12 years or a longer period of the suit. No stronger grounds than these can be imagined for the decision which was arrived at by the Court below. Either of the two last-mentioned grounds is enough to dispose of this appeal. The second of the grounds above mentioned is well supported by a ruling of this Court Mazharul Ekbal @ Muna Mia and Another Vs. Raja Gopal Lal Ray Bahadur and Another and M. Mariamun Nisa and Others, which is exactly in point in this case.

This appeal must be dismissed with costs.

Allanson, J.

I agree.