Mazharul Ekbal @ Muna Mia and Another vs Raja Gopal Lal Ray Bahadur and Another and M. Mariamun Nisa and Others

Das, J.—This is a boundary dispute between the parties and the only question which the Court below had to try was whether the disputed lands as shown in plots Nos. 1, 2 and 3 in the Schedule annexed to the plan are part of mauza Bahadurpur of which the plaintiffs are the proprietors, or whether they form part of villages Manullapur and Madhairpur of which the defendants are the proprietors. The learned Subordinate Judge has come to the conclusion that the plaintiffs are entitled to succeed in the action and with this conclusion I entirely agree.

The learned Vakil appearing on behalf of the defendants has relied vary strongly upon the Revenue Survey Map. According to that map plots Nos. 1 and 2 are shown as part of the defendants'' mauzas. The learned Subordinate Judge has found that plot No. 3 is not shown as part of the defendants'' mauzas in the Revenue Survey Map; but the learned Vakil contends that in this conclusion the learned Subordinate Judge is wrong. We will assume for the purposes of this appeal that part of plot No 3 is pari; of defendants'' mauzas according to the revenue survey. But it is admitted that the disputed lands are shown as part of the plaintiffs'' mauza in the Cadastral survey which took place between 1904 and 1907. It is argued on behalf of the appellants that the Revenue Survey Map should "be properly judicially received in evidence as correct when made". This is undoubtedly correct; see Jagadindra Nath Roy v. Secretary of State (1903) 30 Cal. 291. But the question is not whether the disputed lands were part of the defendants'' mauzas in 1845, but whether they are the part of the defendants'' mauzas at the time when the suit is brought. There is in my opinion, no conflict whatever between the Revenue Survey Map and the Cadastral Survey Map. Each must be assumed to be correct when made. No doubt the disputed lands were part of the defendants'' mauzas in 1845, but between 1845 and 1907 the defendants may have been dispossessed of the disputed lande. A Cadastral Survey Map is a map of very great importance. As is well known the first stage in the preparation of the record of rights is the Cadastral Survey and demarcation of boundaries. Section 189 of the Bengal Tenancy Act gives power to the Local Government "to make Rules consistent with this Act to regulate the procedure to be followed by Revenue-officers in the discharge of any duty imposed upon them by or under this Act, and may by such Rules confer upon any such officer power to enter upon any land, and to survey, demarcate and make a map of the same and any power exercisable by any officer under the Bengal Survey Act, 1875". We have been referred to the Rules as they existed in 1907 and it will be noticed on a reference to these Rules that the Local Government conferred on the Revenue-officers all the powers mentioned in Section 189 of the Bengal Tenancy Act. As was pointed out Mt. Bibi Wakilan v. Deomandan Prasad (1921) 5 Pat. L.J. 681 these officers "had all the powers exercisable by any officer under the Bengal Survey Act of 1875, and had express power to enter upon any land, and to survey, demarcate and make a map of the same". Now the procedure for a survey though directed to be made under the provisions of the Bengal Tenancy Act. must be that laid down in the Bengal Survey Act and it must be conducted with all the publicity and notice to all the parties concerned as laid down in that Act. We must assume that the procedure laid down in the Bengal Survey Act was followed in this particular case; and if a question was raised by the defendants as to the boundaries of parts of these villages that question must have been determined under the Bengal Survey Act. Apart from this the record of rights shows that the disputed lands are part of defendants'' mauzas and, as was pointed out in the case to which I have already referred, the entry in the record of rights operates in the same way between landlord and tenant, as between landlords of the same or of neighboring estates, or between tenant and tenant. The entry must be presumed to be correct until it is shown by evidence to be incorrect. The question then is, have the defendants shown that the entry in the record of rights is incorrect or that the Cadastral Survey Map is incorrect. The learned Subordinate Judge has found that the defendants have not discharged the onus that is on them. We have not been referred to any evidence in support of the view that the defendants have been continuously in possession of the disputed) lands since 1845, which I believe is the date of the Revenue Survey. The position is this. It must be assumed, until the contrary is shown, that the defendants were in possession of the disputed lands at the date when the Revenue Survey Map was prepared. Similarly it must be assumed, until the contrary is shown, that the plaintiffs were in possession of the disputed lands at the date when the Cadastral Survey Map was prepared. If the contrary is not shown by the defendants, it must be held that the plaintiffs are entitled to succeed in the action on their present possession.

In my opinion, the decision of the learned Subordinate Judge is right and ought to be affirmed. I would dismiss this, appeal with costs.

Ross, J.

I agree.