Keshabji Pitamber vs Shashi Bhusan Banerji and Another

Dawson Miller, C.J.—The dispute in this case is between the holders of, the mineral right in two adjacent villages in the Jharia coal fields, each of the parties holding under grants derived from, the Raja of Jharia who is the proprietor of both villages.

The plaintiff, Keshabji Pitamber, has a lease of the mining rights in Motiza Kujaman, whilst the principal defendant, who may be referred to as the defendant, has a lease of the mining rights in Mouza Ghanuadi. The northern boundary of Ghanuadi 19 the southern boundary of Kujaman and the main question for decision in this appeal is whether the boundary between these two villages must be determined for the purposes of this suit as that shown in the revenue survey map or as that shown by the thakbast survey which immediately preceded it, assuming that there is a difference between the two. A further question arises whether the defendant, assuming him to be wrong on the first point, has acquired by adverse possession a prescriptive right to the minerals in a portion of the land comprised within Kujaman, and which is enclosed within a yellow line upon map No. 3 prepared by a Commissioner in this case.

The learned Additional Subordinate Judge of Dhanbad before whom the case came for trial found that the plaintiff had failed to prove that the disputed land was included in the boundaries of his grant and further that the plaintiff, or his predecessors, were never in possession of the disputed land and that the defendant had acquired title by adverse possession for a period of over 12 years. From this decision, the plaintiff has appealed.

The first question depends partly upon the interpretation, of the documents of title of the respective parties and partly upon whether the boundaries therein de scribed correspond, with, the boundaries shown in the revenue survey map.

It appears that at some time before 1893 Shayama Charan Haldar and others held a rnukarrari patda of Mouza Ghanuadi from the Raja of Jharia. The document has not been produced, In 1893 the Haldars transferred by a dar-mukarrari patta the whole of their interest in the surface and underground rights of Mouza Ghanuadi, excepting only the surface rights in certain paddy lands, to Mr. Aratoon Misrop Thaddeus. The southern, boundary of the land demised by this dar-mukarrari deed is stated to be the border of the highway (saran) of Mouza Durgapur as per thak. Durgapur lies immediately to the westward of Kujaman and its northern boundary is a part of the, southern boundary, of Ghanuadi. In, 1896 the Raja of Jharia sued the Haldars and Mr. Thaddeus for a declaration that they had no right to the minerals in Mouza Ghanuadi, and further that they bad no right to the surface land in that Mouza. The southern boundary of the land comprised in that suit is described in the plaint as the border of the limits of Mouzas Durgapur, Kujaman and Tisra as in the thak. In 1898 Mr. Thaddeus who had received from the other defendants in that suit their rights in Mouza Ghanuadi, whatever they might be, and who was, therefore, the only defendant materially interested in the suit, arrived at a compromise with the Raja of Jharia and accepted from him a fresh lease, under a permanent mukarrari patta, of the mineral right in that mouza, agreeing to pay him an annual rental of Rs. 1,200 and a premium of Rs. 2,000, and in the event of the railway freights being reduced by the East Indian Railway Company, or a new railway being made in the Jharia Rergana by the Bengal Nagpur Railway Company, then in lieu of the rent of Rs. 1,200 the lessee was to pay a royalty of 2-annas per ton on the coal despatched with a minimum of Rs. 1,200 per annum. In that lease the southern border of the land demised is stated to be the border of the limits of Mouzas Durgapur, Kujaman and Tisra as per thak. This deed was executed on the 22nd January. 1898, and on the 24th of the same month the suit instituted in 1896 was withdrawn with permission to bring a fresh suit against the defendants other than Thaddeus. It will be seen from these transactions that Thaddeus recognized the rights of the Raja of Jharia in 1898 to grant a lease of the mineral rights in Mouza Ghanuadi and the withdrawal of the suit two days later was merely a part of the same transaction. On the 25th April, 1904, Thaddeus sold his interest in Mouza Ghanuadi to the defendant and Tara Prasanna Mukerji for a sum of Rs. 5,000, The land, the subject of that sale, is said to be bounded on the south by the border of the limits of Mouzas Tisra, Kujaman, Durgapur and Fatepur, and on the 16th December, 1917, T.P. Mukerji transferred his share to the defendant who thereby acquired the whole of the interest conveyed to Thaddeus by the Raja of Jharia in. 1898, The southern boundary of the land in the deed of 1917 is given as the border of the limits of Mouzas Tisra, Kujaman, Durgapur and Fatepur as per thak.

The plaintiff''s title to the Kujaman begins with two deeds executed on the 15th June and the 2nd July, 1900, respectively by the Raja of Jharia in favour of Jugal Kishore Lal Singh Deo, the zemindar of Kashipur. It appears that shortly before that date 592 bighas of land in the northern part of Kujaman had come into the direct possession of the Raja by surrender from the previous tenants. By the deed of the 15th June, 1900, 400 bighas of this were granted to the zemindar of Kashipur, under a permanent mukarrari patta. This, however, did not extend as far as the borders of Ghanuadi. By the instrument of the 2nd July, 1900, the remaining 192 bighas, the northern border of which was the border between Kujaman and Ghanuadi were also leased to the zemindar of Kashipur. The settlement was of the underground rights in 192 bighas, more or less lying within the boundaries as per map mentioned in schedule kha. In schedule kha the northern boundary is given as the border of the limits of Mouza Ghanuadi as per thak and a map was annexed to the deed. On the 5th September, 1914, the plaintiff acquired from the zemindar of Kashipur the mineral rights in 92 bighas of this land for a term of 30 years. The land demised is delineated in the plan annexed to the lease and, is said to be bounded on the north by Mouza Ghanuadi.

It will be seen from the various documents of title to which I have referred that the defendant''s title originates with a lease granted by the Raja of Jharia to Thaddeus in 1898 and the southern boundary of his land was the limit of, inter alia, Kujaman as per thak. The plaintiff''s title originates with the grant of the 2nd July, 1900, made by the Raja of Jharia to the zemindar of Kashipur in which the northern boundary is the limit of Mouza, Ghanuadi as per thak. It must be taken, therefore, the boundary between these two estates is the boundary shown by the thak survey.

In 1918 disputes arose between the plaintiff and the defendant as to possession of a portion of the land near the junction of their two estates. The defendant claimed, as being within Ghanuadi, the greater part of the land, both surface and sub-soil, which the plaintiff claimed to have been leased to him. Proceedings u/s 145 of the Cr.P.C. were instituted by the defendant and the Magistrate decided, after a remand by the High Court, that the plaintiff was in possession of the underground rights in the land enclosed within the green line shown on the Commissioner''s map except the portion therein enclosed in yellow and this he attached u/s 146 of the Code. The present suit relates only to the yellow portion.

The plaintiff''s case is that the revenue survey correctly shows the boundary between Ghanuadi and Kujaman according to the thak survey and, therefore, it is unnecessary to have the thakbast map re-laid on the spot to ascertain the boundary between the two mouzas. He accordingly asked that the Commissioner should ascertain the common boundary between the mouzas as shown in the revenue survey map, and show thereon the land claimed by the plaintiff, including the disputed land. This he has done and from this it appears that the land in dispute, that is, the yellow portion, falls within Mouza Kujaman according to the revenue survey map. It follows, therefore, that if the revenue survey map correctly represents the thak survey the disputed land fall? Within the leasehold land of the plaintiff and outside that of the defendant.

The defendant, however, contends that as his title was of earlier date than that of the plaintiff, the plaintiff could not acquire anything already demised to the defendant or his predecessor, and therefore, the boundary must be taken as the boundary shown in the defendant''s title-deeds, that is, the dividing line between Ghanuadi and Kujaman as shown by the thak survey. The first grant of the mineral rights which the defendant can rely upon must be the mukarrari patta of 1898 granted by the Raja of Jharia to Thaddeus, for Thaddeus acquired, no mineral rights from the Haldars, who, although they held a mukarrari, are, not shown to have acquired any mineral rights therein but surface right only. The lease of 1898 was a grant of Mouza Ghanuadi including minerals. It contains no map or plan, but the southern boundary therein given, as already mentioned, is the limit of Mouzas Dargapur, Kujaman and Tisra as per thak. It is necessary, therefore, to ascertain what this means. The defendant contends that in order to ascertain the demarcation made by the thak survey between these two mouzas the thak-bast map alone should be regarded, but as the thakbast map has not been re-laid the plaintiff has failed to establish his case.

The plaintiff replies to this that although the thakbast map was a part of the thak survey it was not meant to be, and was not in fact, a scientifically prepared plan, but merely a rough sketch, or, at most, an unscientifically prepared plan showing the number and approximate position of the thak marks or dhuis for the guidance of the revenue surveyor who followed after, who, having picked lip and verified the thak marks indicated roughly in the thakbast map, prepared the revenue survey map by accurate observations made by expert surveyors with scientific instruments, and if it appears that he had the thakbast map before him when he made his survey and prepared the revenue map, then the revenue map must be accepted as showing the result of the thak survey even more accurately than the thakbast map which was not intended to be scientifically accurate.

On referring to Captain Hirst''s Notes on the old Revenue Surveys of Bengal, Bihar, Orissa and Assam published in 1912 we find ample support of the plaintiff''s contention. Captain F.C. Hirst was Director of Surveys in Bengal and Assam. He gives a graphic account of how the thak survey was conducted by the Settlement Officer and his staff, generally about a year before the scientific work of the revenue survey was about to commence. The settlement officer''s duty was first to settle all boundary disputes on the spot, and then to demarcate on the ground the actual boundaries of villages and estates. This was done by placing thak marks or dhuis (generally large mud pillars about five feet high, although they might assume other forms) at the principal bends in the village, and at all the unction points. These marks were shown in the thak map. That map was prepared by an amin, but as Captain Hirst points out the thak map was seldom really accurate and frequently it was not even intended to be so. On this subject he says (page 10): "There are three main kinds of thak maps to be considered:

(a) Eye sketches, in which no actual measurements were made.

(b) Maps in which rough magnetic bearings were used and rough linear measurements made.

(c) Maps made from careful magnetic bearings and careful linear measurements.

He points out that in the earlier maps, and in some of the later maps, no angular measurements were used, and that when regular measurements were made they were generally made with prismatic compasses or ordinary compasses, and adds that where magnetic compasses were used it was intended that the bearings should be observed and recorded in the field book or some other part of the records which the thak surveyor would hand over to the revenue surveyor. In some cases the bearings were recorded to guide the revenue surveyor, whilst the map to him was little more than a guide to the actual number of thak survey marks put down on the ground; and later he says: "We may pass over the question of accuracy of maps of both classes (a) and (b) with the remark that they were not intended to be more than a rough guide to the revenue surveyor and that, as suck, they served their purpose usually, but not always." In fact the field books and other records prepared by the thak surveyor were generally a more accurate indication of the thak survey than the maps themselves. The third class of maps were more accurate and more reliable and were of a somewhat later date. It was the duty of the revenue surveyor to map accurately the village boundaries demarcated, on the ground, and to find these boundaries by using the thak maps and other information collected by the demarcation officer. If the thak maps, are found to have been initialled, by the revenue surveyor, this is, according to Captain Hirst, evidence that their boundaries agree with those picked up by the revenue survey. "It may be" he says, "that this signing of thak maps has led to much of the misunderstanding that exists as to the accuracy of these maps and it will be, therefore, to record here exactly what the revenue surveyor''s signature implies; it does not mean that if the thak map is reduced to the same scale as the revenue survey map then the two boundaries will necessarily agree, but rather that the revenue surveyor has satisfied himself that the boundary accepted arid intended by the demarcation staff has been correctly picked up on the ground and correctly surveyed on the revenue survey map." He then refers to Thullier''s Manual of Surveying, published in 1875 and quotes the following passage: "The assistant surveyor can compare his exterior boundary and rectify any errors that he may chance to perceive between the marks on the ground and the thakbast sketch map;" and deduces from this that it is clear that the comparison was one of the boundaries as demarcated rather than of boundaries as shown in the thakbast maps.

The remarks of Captain Hirst were considered and approved of by a Division Bench of this Court in the case of Shashi Bhusan Banerji Vs. Ramjas Agarwala, . In that case the present defendant was the plaintiff and it was held that the words "as per thak" meant "as per thak demarcation" and not "as per thak map" and that the signature of the revenue surveyor on a thak map means merely that he has satisfied himself that the boundary accepted and intended by the demarcation staff had been correctly picked up on the ground and correctly surveyed-on the revenue survey map. I see no reason to differ from the conclusion arrived at in that case. In the present case the thakbast survey map of Mouza Kujaman showing the thak demarcation between the Kujaman and Ghanuadi was put in evidence by the defendant and it appears from that document that it was initialled by the revenue surveyor. It may be assumed, therefore, that the revenue survey accurately represents the demarcation of the boundary between these two mouzas arrived at by the thak survey.

It was contended that as the map attached to the lease of the 2nd July, 1900, had not been put in evidence by the plaintiff it is impossible to say what the northern limit of the land settled with him was. This map was tendered somewhat late in the case and the learned Judge rejected it. It appeared to us on appeal that it ought to be admitted and sufficient reason, had been shown for its late production. We accordingly admitted it. The northern limit shown oh that map is obviously meant to show the demarcation line between the two villages appearing on, the revenue survey map. Whether as a scientific map it is in all particulars accurate is, to my mind, a. matter of no importance. The northern boundary is stated in the body of the lease as the border of the limit of Mouza, Ghanuadi as in the thak and the pictorial representation of that limit in the plan was clearly meant to represent the revenue survey. I consider, therefore, that the northern limit of the land demised to the plaintiff, which is also the southern limit of the land demised to the defendant, is the boundary between the two mouzas as shown in the revenue survey map, and as demarcated on the Commissioner''s plan, and the disputed land falls within the limits of the plaintiff''s lease.

The next question is whether the defendant has acquired by adverse possession the mineral rights in the disputed lands. I have already stated that Thaddeus, the predecessor of the defendant, acquired no mineral rights from the Haldars under his dar-mukarrari grant of 1893. Whatever rights he may have been asserting in pursuance of that lease he gave up in 1898 when he accepted from the Raja of Jharia afresh lease of Mouza Ghanuadi. The question, therefore, is whether since 1898 an adverse title has been acquired by the defendant over the minerals in the disputed land. In 1900 the Raja of Jharia transferred to Jugal Kishore, the predecessor of the plaintiff, the underground rights in the northern portion of the Mouza Kujaman. Up to that time there could have been no ouster of the Raja of Jharia as the lease to Thaddeus was only two years earlier. In 1904 Thaddeus parted with his whole interest, to the defendant and Tara Prasanna Mukerji and gave up whatever possession he may have had over the disputed land. Up to that time he had acquired no title by adverse possession and what he transferred to the defendant and Tara Prasanna Mukerji was Mouza Ghanuadi only. It, seems to me, therefore, unnecessary to consider the evidence as to any acts of ownership over the minerals in Mouza Kujaman on the part of Thaddeus between 1898 and 1904, for his successors cannot tack on to their own possession the adverse possession of their predecessor who had withdrawn from the field. He had nothing to convey in Mouza Kujaman and in fact conveyed nothing. There is some evidence to the effect that the defendant has exercised some acts of ownership over the surface of the disputed land hut the defendant himself in his evidence says chat lie has not done any colliery work in the plot shown in the Commissioner''s map as belonging to the plaintiff. There is, therefore, no evidence upon which we can hold that the defendant has acquired by adverse possession against the plaintiff or his predecessor any right to the minerals in Mouza Kujaman. In my opinion the appeal should be allowed with costs here and in the Court below as against the defendant No. 1 who alone, contested the suit. The decree of the Subordinate Judge will be set aside and in lieu thereof it will be decreed and declared that the mineral rights in the land in suit appertain to the lease-hold property of the, plaintiff and that he is entitled to hold, and possess the same and that the said defendant has no right to the minerals, or any portion thereof within the said land and that he be restrained by injunction, from disturbing the plaintiff''s possession.

Mullick, J.

The plaintiff''s, claim, is founded upon a mining lease executed, by the manager of the Kashipur Wards Estate on the 5th September, 1914, in, respect of 92 bighas of coal land in. Mouza Kujaman, The defendant, Shashi Bhusan Banerji, claims under a mulearrari and dar-mukarrari title to the whole of Mouza Ghanuadi which adjoins Kujaman on the north.

The question in this case, is whether the land in suit falls within, Ghanuadi of Kujaman. It is depicted, in the Commissioner''s map in yellow and the underground was attached by an order made by the Magistrate of Dhanbad u/s 146 of the (Jr. P. C, on the 8th September, 1919, The present suit was brought on the 1st October, 1920, in the Court of the Subordinate Judge of Dhanbad for a declaration of plaintiff''s title and for a release of the land from attachment and for an injunction upon the principal defendant not to interfere with the plaintiff''s possession.

In my opinion the Subordinate Judge''s decree in favour of the defendants cannot be sustained and the appeal must be decree with costs.

The material boundary in the plaintiff''s title-deed is the northern boundary which is referred to as follows: "North by Ghanuadi as per plan attached." That plan was produced at a very late stage before the Subordinate Judge and was rejected; but we have admitted it in this, Court. It has not been re-laid on the Commissioner''s map but there are materials, before us from which the extent of the, plaintiff''s land can be ascertained. The plaintiff''s lessor, the Kashipur Wards Estate, acquired title by two mukarrari maurasi pattas executed on the 15th June 1900 and the 2nd July, 1900, by Raja Durga Prasad Singh, the proprietor of the Jharia Estate within which is situated Mouza Kujaman, for 400 bighas and 192 bighas respectively. The plaintiff''s area, of 92 bighas falls within the area of, 192. bighas in Kujaman and immediately, adjoins Mouza Ghanuadi.

The question is where the common boundary runs. The Commissioner has found that the common boundary is the boundary laid down at the revenue survey. The defendant, now the respondent before us, would shift the boundary further south so as to include the land in suit. Now in order to show his title the defendant produces, dar-mukarrari patta from Shama Charan Haldar and others alleged to be mukarrari dars of Mouza Ghanuadi in favour of Aratoon Thaddeus, dated the. 1st March, 1893, The patta purports in transfer all rights to the soil and sub-soil except surface rights to the paddy lands. The southern boundary of Mouza. Ghaunadiin the patta is, as follows: "South, border, of Mouza Durgapur as per thak. In 1896 the Raja, of Jharia, who was and is also the proprietor of Mouza Ghanuadi, sued the Haldars, and Thaddeus for declaration of title and recovery of possession alleging that neither, the Haldars nor Thaddeus had any title to the surface or underground lands, of Mouza Ghanuadi. He also claimed recovery of possession and damages for coal appropriated by Thaddeus. That suit was withdrawn against the Haldars with permissions to institute afresh suit on the same cause of action, but against Thaddeus it was, withdrawn unconditionally, he having shortly before the withdrawal of the suit, namely, on the 22nd January, 1898, accepted a mukarari patta from the Raja for the underground rights in Mouza Ghanuadi. The southern boundary in this patta differed from the southern boundary given in Thaddeus''s dar-mukarrari patta from Shama Charan Haldar of the 1st March, 1893, and ran as follows: "South border of the limits of Moulds Durgapur, Kujaman and Tisra as in the thak.

On the 25th April Thaddeus sold his interest, in Ghanuadi to Tara Prasanna Mukerji and Shaahi Bhusan Banerji. The heirs. Of Tara Prasanna Mukerji having given a darmukarrari of their interest to Shasbi Bhusan Banerji, that defendant alone is now interested in the land in suit.

The first point to be considered is whether defendant has acquired any interest to the surface or the underground of the land in, suit by adverse possession. This question, only arises on the assumption that the land in suit falls outside the boundary of Ghanuadi.

The case of adverse possession is put thus: Thaddeus was in possession of the land in suit till 190t when he transferred his rights to the defendant No. 1 and Tara Prasanna Mukerji. Now, was Thaddeus in possession of the land? First let us consider the surface. As, to this the result of the Jharia Raja''s suit in 1896 was to establish the mukarrari right of the Haldars and in the absence of an express transfer of the minerals the mukarrari right must be held to extend only to the surface. Thaddeus was a darmukarraridar and the most be could have acquired by prescription against the proprietor was a dar-mukarrari right to the surface of the land in suit. But he sold the land in 1904 and unless the defendant No. 1 can tack his possession, if any, to that of Thaddeus, he cannot claim a dar-mukarrari right by prescription. Now Thaddeus sold to the defendant and his predecessor Mouza Ghanuadi. It follows that he sold the area demarcated at the revenue survey as comprising Ghanuadi. It is clear from definition of the term "mouza" in the Land Registration Act that the Legislature does not recognize any other meaning, than "an area surveyed as a mouza in a revenue survey." That being so, the defendant No. 1 acquired neither title nor possession to the land in suit from Thaddeus and. he cannot add his possession to his own. It is not suggested that he has acquired, title by possession since 1904 independently of Thaddeus and otherwise than as his representative.

But there are other difficulties in defendant''s way. What is the evidence of adverse possession he had adduced? Thaddeus has been examined. He says he took possession according to his lease from the Haldars. That lease describes the southern boundary of Ghanuadi as a road, which the defendant has endeavoured to identify as the present District Board road, but, in my opinion, the evidence, of such identification is inconclusive.

Thaddeus does not say what portions of the surface in question he occupied and the omission is sought to be supplemented by the witnesses Ram Bauri, Chamroo Beldar and defendant No. 1 himself. Chamroo Beldar says Thaddeus was in possession of the paddy lands north of the road but this cannot be true because the paddy lands were not leased to Thaddeus at all He also says that Thaddeus and after him the defendant No. I took fish from the biff tank on the land. No particulars are given and I think it would be most unsafe in my opinion, to deprive a landlord of his title on, evidence of this kind. Shama Charan Haldar who has been called by the defendant, contradicts both Chamroo Beldar and defendant No. 1 as to the paddy lands and the fish and says that he and not Thaddeus was in possession and that he sold these to defendant No. 1, presumably after the defendant No. 1 and Mukherji had purchased Ghanuadi from Thaddeus The defendant No. 1 also deposes to Thaddeus''s possession of the paddy lands to the north and east of the tank, but these have not been identified as falling within the property in suit.

The result, therefore, is that it has not been shown that Thaddeus was in possession of the surface of the land in suit before 1904.

As regards the sub-soil, the evidence of Ram Bauri is that Thaddeus cut an incline on the site of the present District Board road which was constructed in or about 1913. Chamroo Beldar says that Thaddeus sank 7 or 8 pits or inclines and dug a quarry 40 or 50 feet deep and that he extracted about 100 tons of coal. The exact spot where these works were carried out is not made clear and the evidence is useless founding a case of title to the underground by adverse, possession. A trespasser cannot acquire by prescriptive title to anything more than the precise area encroached upon. The defendant No. 1 supports Chamroo and adds that Thaddeus extracted stone from lands to the west of the tank and that he also has done so. He also states that Thaddeus made some experimental shafts and inclines, but he does not identify the sites of these works. His evidence as to the stone quarries and Ram Bauri''s evidence as to the incline on the site of the District Board road does show some possession within the disputed area but it is wholly insufficient in continuity, extent and publicity to justify a claim to the minerals.

With regard to the sub soil rights also, the objection arises that the defendant is not the representative of Thaddeus. The transfer of 1904 conveyed the underground rights to Mouza Ghanuadi but not to the lands in suit which do not lie within that mouza.

A point was next taken by the learned Counsel for the respondent that Order II, Rule 2 of the C.P.C., is a bar to the suit. It was contended that in 1896 the proprietor of Jharia should have sued to eject Thaddeus from the surface and sub-soil of not only, Ghanuadi but also the land now in suit as Thaddeus was then in possession of it. As I have found that he was not in possession of the land in suit the contention must fail. The plaint in that suit is not before us and we do not know what was the cause of action pleaded and it has not been shown that the claim to the land now in suit was covered by the cause of action in that suit.

We now come to the main point in the case, namely, whether the plaintiff is entitled to a decree on his title-deed. I think the answer must be in the affirmative. It is true that the plan attached to the plaintiff''s lease has not been re-laid on the ground and that without a remand it will not be possible to lay down the northern boundary of the place upon the Commissioner''s map but there are materials which are sufficient to indicate that the lands in suit cannot lie within the defendant''s Mouza Ghanuadi but that they must lie within the plaintiff''s Mouza Kujaman. The plaintiff''s title-deed describes the northern boundary of his land as Mouza Ghanuadi and unless a prior title was created in the defendant the plaintiff is entitled to the common boundary between. Kujaman and Ghanuadi according to the revenue survey map which has been plotted on the Commissioner''s map. But the title-deed of the plaintiff''s lessor [Ex. 5 (a)] Jugal Kishore Deo gives a slightly different northern boundary, namely, "Border of the limit of Mouza Ghanuadi as per thak," and the plaintiff is limited to this boundary line. Fortunately the defendant''s title-deeds (Exs. C and B) and Thaddeus title-deed (Ex. E) all agree with the plaintiff''s lessor''s title-deed and show that the northern boundary of plaintiff''s lessor''s land is the boundary of Mouza Ghanuadi as per thak and that it is identical with the northern boundary of the defendant''s land which is Mouza Kujaman as per thak. It remains, therefore, to ascertain what the words "as per thak" mean. Now on this point I agree with the decision of a Division Bench of this Court in Shashi Bhusan Banerji Vs. Ramjas Agarwala, , where the words "as per thak" have been held to mean as per thak pillars.

It is contended on behalf of the respondents that "as per thak" means as per thak-bast map. But some difference must be made between the words "as per thak" and "as per thakbast map" and it has not been shown that the reasoning of the learned Judges of the Division Bench is wrong. That being so, we have to ascertain where the thak pillars are. One way of doing so would be by re-laying the thakbast map of Kujaman which in this case appears to contain sufficient details to enable the boundary to be laid down; but the thakbast map has not been plotted and the question is whether the revenue survey line may be taken as accurately showing the position of the thak pillars. In the present case the revenue survey map shows that it was compared by the revenue surveyor with the thakbast map, but it is certain that the revenue survey line correctly represents the line of the thak pillars. In these circumstances, the omission to plot the thakbast map is of no consequence, for we have a demarcation according to the more scientific map prepared in the revenue survey and I am satisfied that a remand is not necessary. The northern boundary of Kujaman and the southern boundary of Ghanuadi "as per thak" are represented by the revenue survey line so that the land in suit must fall within the plaintiff''s title-deed.

The appeal, therefore, will succeed, the suit will be decreed and the plaintiff will get his costs in both this Court and the lower Court.