Pilcher and Co. vs Satish Chandar Sinha and Others

The parties to this litigation are interested in the mineral rights in two villages Dhekbera and Pathargada and boundary between which is in dispute. Both villages are in the Zemindari of the Raja Bahadur of Pachete, defendant No. 6.

The history of the mineral rights in Pathargada is as follows: On 11th November, 1908, defendant No pleased the minerals in Mauza Pathargada to Henry George Fleury. Fleury opened the Kohinoor Colliery which ultimately went into liquidation. In February, 1915, Mr. Pugh, defendant No. 3, purchased the lease from the liquidator and entered into possession and worked the minerals until August, 1927. He then granted a sub-lease of the property to Sachhidananda Bagchi, defendant No. 2, who in turn raised coal for two years from 1st September, 1917, till 1st October, 1919, when he assigned his sublease to Messrs.. Pilcher & Co., defendant No. 1. This defendant continued to raise coal thereafter.

The title to the minerals of Dhekbera as the result of a series of demises which will be sat forth in detail presently, is vested in the plaintiffs.

The plaintiffs in their plaint alleged that in February, 1919, as a result of a survey with reference to the revenue survey map it was ascertained that the defendants had encroached upon the under-ground minerals of Mauza Dhekbera. They, therefore, claimed an account of all coal raised and misappropriated by the defendants from the plaintiffs'' Mauza Dhekbera, and an injunction and damages.

The defence, so far as it is now material, was that the plaintiffs'' lease was governed by the thakbast map and that there was no encroachment.

A Commissioner was appointed to determine the boundary line between Pathargoda and Dhekbera according to the revenue survey map and to ascertain the extent of the encroachment and the amount of coal wrongfully worked by the defendants. He laid the boundary between the two villages and calculated the amount of coal wrongfully worked. The learned Subordinate Judge held that the plaintiffs'' lease should be interpreted with reference to the revenue survey map and not the thakbast map. He further found that the Commissioner''s map and report were correct and that almost the whole of the coal cut fell within the plaintiffs'' Mauza Dhekbera; that the defendants had encroached upon and extracted coal from that village; and that defendant No. 1 extracted 7483 tons and defendant 21525 tons, and that defendant No. 3 did not extract any coal during the period in suit. He, therefore, gave the plaintiffs an injunction and a decree for Rs. 44,898 as damages as against defendant No. 1 and Rs. 27,150 against defendant No. 2 with costs and interest dismissing the suit against defendant No. 3.

After the decision of the Subordinate Judge Messrs. Pilcher & Co., went into liquidation and their interest was purchased from the liquidator by Madan Gopal Mahta who was added as an appellant by order of the Court on 25th May, 1926, and who alone presses the appeal.

Two questions were debated in this appeal:

(1) Whether the plaintiffs'' lease was governed by the thakbast map or by the revenue survey map; and

(2) if by the revenue survey map, whether the Commissioner had correctly ascertained the southern boundary of Mauza Dhekbera.

(i) The question is as to whether Mauza Dhekbera alias Dhubukbera was settled with the predecessor-in-interest of the plaintiffs with reference to the revenue survey map or with reference to the thak map. The learned Subordinate Judge was of opinion that there were latent ambiguities in the documents which formed the title-deeds of the plaintiffs and, therefore, it was open to him to consider the evidence to snow in what manner the language of the documents was related to the existing facts as provided for in proviso 6 to Section 92, Evidence Act. Reference may also be made in this connexion to the provisions of Section 97 of the Act. The learned Advocates on both sides are agreed that there are ambiguities in the documents which necessitated reference to extrinsic evidence in order to determine the true interpretation of the documents.

Defendant No. 6, the Raja of Panchkot of Pachet, is the proprietor of both the plaintiffs'' village Dhekbera and of the defendants'' village Pathargada. The coal lands in Mauza Dhekbera were given in lease by the Raja to one Ramcharan Babu in the year 1909 under the kabuliyat Ex. 4. Ramcharan Babu granted a sub-lease to Satyataran Chaudhury. In 1914 the Raja obtained a preliminary decree for sale of the demised land for arrears of royalty against Ramcharan Babu and Satyataran. Chaudhury (Ex. 11) and the final decree for sale was made on 16th May, 1915, (Ex. 12) and in execution thereof the demised land was sold and purchased by the Raja in the year 1916 (vide sale certificate Ex. 10) and possession was delivered to him through Court in January, 1917 (Ex. 6). Thereafter on 28th April, 1917, the Raja granted a lease under the patta Ex. 3 to defendants Nos. 4 and 5 (Rasraj Biswas and S.H. Seddon). Defendants Nos. 4 and 5 executed a conveyance to plaintiff No. 1 under the deed Ex. 2, dated 21st May, 1918, and plaintiff No. 1 executed a sub-lease to Kunja Bihari Seal the father of plaintiffs Nos. 2 and 3 and the husband 6f plaintiff No.4 under the kabuliyat Ex. 1, dated 31st August, 1918. The document, therefore, which is of importance is the patta Ex. 3 granted by the Raja to defendants Nos. 4 and 5. This document recites that the settlement was of all sorts of underground mineral substance, i.e., coal and stone etc. of the entire Mauza Dhekbera otherwise called Dhubukbera bearing Thak No. 11 specified in the boundaries given in the schedule attached to the deed and it is stated that the underground coal of the said mauza, was settled with the late Ramcharan Babu and that Ramcharan Babu had transferred his right to Satyataran Chaudhury, that the Raja had instituted a suit against Ramcharan Babu and Satyataran Chaudhury for recovery of arrears of royalty, obtained a decree and in execution thereof had the interest of the said Ramcharan Babu and Satyataran Chaudhury sold at auction and purchased the same. It is clear, therefore, that what was settled with defendants Nos. 4 and 5 was precisely the same that had previously been settled with Ramcharan Babu. Let us, therefore, first consider the recitals in the deed of settlement of Ramcharan Babu which was evidenced by the kabuliyat Ex. 4 Now, the property demised is described in the operative part of this document as "the underground coal and stones, etc., of Mauza Dhekbera otherwise called Dhubukbora bearing Thak No. 11 specified in the boundaries, below and the area of the mauza is stated to be ''121 bighas more or less.'' The same description is contained in Clause 1 of the document. The schedule of the boundaries given at the end of the document merely contains the words "Mauza Dhekbera otherwise Dhubukbera, Perganna Mohal, bearing Thak No. 11, 121 bighas."

The contention of the appellant is that the settlement with Ramcharan Babu was made with reference to the thakbast map prepared by the Survey Officers before the revenue survey map was prepared by them. The importance of the question as to whether the settlement was with reference to the revenue survey map or with reference to the thak map lies in identifying the southern limits of Mauza Dhekbara. The area of the village would be considerably less if the thak map be the map according to which the settlement was made, and the disputed land will in that case fall beyond the southern limit of Mauza Dhekbera and the plaintiffs will have no right to claim any compensation for the removal of coal from the disputed land. The learned Subordinate Judge has interpreted this document to mean that the settlement was with reference to the survey map and not with reference to the thak map, and, in our opinion, he is right. In construing this document the principal factor to be considered is the area as the salami was fixed with reference to the area, viz., at Rs. 40 per bigha. If the area be taken to be 121 bighas, it is clear that the reference was to the revenue survey map which gives the area of the villages as 40 acres. An acre is equivalent to 3''025 bighas and 40 acres come up exactly to 121 bighas. Then the settlement was of the underground coal in Mauza Dhekbera, bearing Thak No. 11. A mauza according to Capt. Hirst in his Notes on the Old Revenue Survey means "a revenue survey village," and the definition of the word "mauza" as given in the Land Registration Act (VII of 1876 B.C.) is "the area defined, surveyed and recorded as a distinct and separate mauza in the general land revenue survey which has been made of the Province of Bengal."

In Shashi Bhusan Banerji Vs. Ramjas Agarwala, Das, J., has given an elaborate description of the methods followed by the Civilian Authorities in preparing the thak maps and by the Revenue Authorities in preparing the revenue survey maps, and it has been held that where the demise was "as per thak" the meaning was as per thak demarcation and not as per thak map. The same view was taken by another Division Bench of this Court in Keshabji Pitamber Vs. Shashi Bhusan Banerji and Another, . When, therefore, the lease describes the demised land as "Mauza Dhekbera, bearing Thak No. 11," the true interpretation of the deed would be that the Mauza Dhekbera as per the thak demarcations was demised, in other words, the boundary of the village was to be taken according to the demarcation made on the spot by the thak officers, their duty being to settle all boundary disputes on the spot and then to demarcate on the ground the actual boundaries of the villages or estates and this was done by placing marks called thaks or dhuis at the principal points in the village and at all trijunction points. The thak map was prepared with the object of indicating the boundaries as demarcated on the spot and did not purport to be an accurate map of the villages surveyed. In this document, Ex. 4, there is no reference to the thak map but to the "Thak No. 11." It will appear on reference to Capt. Hirst''s book, para, 17, page 16, that one of the items compiled by the demarcation officer was a village list which contained the thak number of each village, and on reference to para. 32, page 34, it will appear that a village may be represented by the (1) thakbast or civil superintendent''s number; (2) revenue survey number and (3) by page number in the revenue survey volume. The thak number given in the document Ex. 4 was the number given by the demarcation officer to the village Dhekbera, and on reference to the revenue survey map of the village it would appear that both the thak number as well as the revenue survey number of the village are given therein. The reference to the "Thak No. 11," therefore, in the document was only for the purpose of identification, and the area, 82 L bighas, given in the document would go to show that the real settlement was with reference to the survey map which contained the area of the village as 40- acres equivalent to 121 bighas. The description of the boundaries as given in the schedule attached to the deed also confirms the view that the settlement was with reference to the revenue survey map.

We do not find the actual boundaries set out in the schedule but reference is made to the mauza bearing Thak No. 11 with an area of 121 bighas. On reference to the other documents executed by the Raja in reference to other villages (vide the documents Ex. 7 series) it appears that when an entire mauza was demised the boundaries were not set out and a reference was simply made to the thak number to identify the mauzas demised; but when a portion of a mauza was demised a plan was attached to the deed in order to indicate the boundaries thereof. We are, therefore, of opinion that on a true interpretation of the document (Ex. 4) the intention of the parties was that Mauza Dhekbera demised was with reference to the survey map and not with reference to the thak map.

The next document of importance is Ex. 3. Here also the description is similar to that in the kabuliyat Ex. 4, and the observations made in construing the document Ex. 4, apply to this document. Learned Counsel for the appellant has, however, referred to para. 15 of this document which provides "that at your own cost you will raise pucca pillars on the boundaries as per thak map given in this patta, and keep intact the boundary limits,"

It is contended on behalf of the appellants that this shows that the demise was with reference to the thak map. In the first place, in construing a deed in order to determine what exactly the demised land was, it is necessary to look to the operative portion of the deed. In the operative portion of the deed there is no reference to the thak map but to the thak number. The schedule of the boundaries also contains no mention of the thak map, but only of the thak number. Paragraph 15, however refers to the thak map, and it has been contended on behalf of the respondents that if the use of the words "thak map" makes any reference to the map itself and not the thak number as regards the property demised, then such a description merely amounts to falsa demonstratio. They refer only to one of the terms or conditions of the lease and not to the operative portion of the lease. Next it is contended that when reference is made to the thak map in para. 15 it was only for the purpose of identification, and that the real authoritative map of the village which was prepared by the Revenue Authorities after the demarcation proceedings during which the thak map was prepared must be referred to. We have looked into the vernacular words used in the document, and on a reference thereto it seems to us that in para. 15 what was meant was that the lessee was to raise pucca pillars with reference to the pucca pillars indicated in the thak map. The rendering of the passage into English does not convey precisely the idea conveyed by the vernacular words in the document. The direction given there is that in constructing the boundary pillars reference will be made to the demarcation made on the spot by the officers who conducted the thakbast operations. The words used mean "You will construct pillars with reference to the thak pillars of the thak map." Paragraph 15 of the document, therefore, does not, in our opinion, help the plaintiffs.

The next document is Ex. 2 the conveyance by defendants Nos. 4 and 5 to plaintiff No. 1. This document must be construed with reference to documents Nos. 3 and 4. The description given here is similar to those in the other two documents; and the last document, Ex. 1, which is the sub-lease granted by plaintiff No. 1 to the father of plaintiffs Nos. 2 and 3 and the husband of plaintiff No. 4, care is taken to describe the mauza "as per revenue survey map bearing Thak No. 11."

On a proper consideration of the title-deeds, we are of opinion that the view taken by the learned Subordinate Judge was correct.

Reference has been made on behalf of the respondents to the actings of the parties themselves as to how they understood the title-deeds and to the evidence of the plaintiffs'' witness No. 7 who was the supervisor under the Raja (defendant No. 6) and who deposed that the settlement with Ramcharan Babu as well as defendants Nos. 4 and 5 was made with reference to the revenue survey map. It is not necessary to consider in detail the evidence on these points. The learned Subordinate Judge has considered them, and after a careful examination of the entire evidence in the case we are of opinion that the settlement with Ram Charan Babu and with defendants Nos. 4 and 5 was with reference to the revenue survey map.

The contention on behalf of the appellant on this point of the case is that the Commissioner has not rightly ascertained the trijunction points and that his map is, therefore, wrong. The Commissioner has described his procedure as follows;

It first plotted one map to the seals of 4 inches to the mile, i.e., to the same scale as the revenue survey map. This is map No. 1. For the purpose of superposition I traced out my map No. 1 and prepared map No. 2. This map No. 21 superposed on the revenue survey sheet map of several villages including Dhekbera and Pathargada, and I find that the four injunctions at stations Nos. 4, 2, 24 and 17 of the map tally with the trijunctions of mauzas:

Gurhuntee Dhekbera Sitanala Mahulbani Mahulbani Swardee Swardee Chakparbad Dhekbera Pathargada Gurgaon Gurgaon.

respectively of the revenue survey map. This superposed, I have traced out the common boundary between Pathargada and Dhekbera of the revenue survey map on my map No. 2 which will appear from the same in red lines.

It will be seen that the important trijunctions are the stations Nos. 4,2,24 and 17. The Commissioner was cross examined in this Court and stated the pillar No. 4 was a new prism-shaped stone pillar upon a brick platform. The condition of the pillar at No. 2 was not noted in his field book. At No. 24 he found a stone with a hole in the centre and a few stones scattered about. At stations Nos. 4, 3, 2 and 24 the condition of the landmarks or pillars was quite different from each other. He did not take any evidence to find out whether Nos. 2, 24, 4 and 3 were trijunction pillars except the statements of the parties. He further stated that the distance between station No. 24 and the southern bank of the river in this map, that is, the sand bed of the Damodar river, was 178 feet; the distance from station No. 2 to the sand bed of the river was 77 feet and from station No. 1 to the sand bed of the river was 166 feet. The quarry which the plaintiff said was "C quarry" and which was claimed by him is beyond the Commissioner''s chain line on the north; but he adds that this is not the northern boundary but the chain line, and the northern boundary is not drawn in his map. The length of the eastern boundary according to his map, is 840 feet and the northern end of that line is at pillar No. 24.

In answer to the learned Advocate for the respondents he stated that he was not asked to show in his map the northern boundary line of Mauza Dhekbera; and that the southern bank of the river, as he saw it at the time of the survey, must extend up to the northern limit of Dhekbera. He explained that when surveying the chain line he had taken the survey pillars and offsets of the sloping bed of the river and that this slope is the space between the chain line and the river and that if the bank is taken to be where the slope commences then it is somewhere near the chain line. It was not necessary for him to show the northern boundary of Dhekbera in order to find out the boundary between Dhekbera and Pathargada. He superposed the trijunctions of the map of his survey on the trijunctions of the revenue survey map. The correctness of his survey is shown by his traverse table, At station No. 2 the defendants showed him the sand bed of the river as the site at a distance of 80 feet. So far as he remembered, they did not show him any other site. He did not accept the suggestion of the defendants as to the position of the trijunction pillar in the sand bed opposite station No. 2 because, if superposed in that way, almost all the other trijunctions would be rejected. He was sure that stations Nos.4, 2 and 24 were the correct positions of the trijunction pillars, because the greatest number of trijunctions agreed in this superposition. In answer to the Court he said that most probably when plotting the map he tested the other trijunctions with the trijunction suggested by the defendants and found they did not agree.

Learned Counsel for the appellant contended that the Commissioner''s trijunctions were not correct because: (1) they differed in appearance from each other; (2) they were not admitted by the defendants to be the trijunction pillars; (3) no oral evidence of people in the locality was taken to support the Commissioner''s findings; (4) if the Commissioner''s map is compared with the comparative map of 1921, Ex. F, it will appear that whereas all the Commissioner''s trijunctions are outside the river, and some at a distance from the river, Ex. F shows the revenue survey line as being in the river in 1921 and the pillars as being in the river except one; and (5) while the eastern boundary of Dhekbera has been shown to be 840 feet as in the revenue survey map, the northern end is 178 feet from the river, while in Satyataran Chaudhury''s working plan of the colliery it is on the bank. The respondents reply that it is impossible to explain the difference in the appearance of the pillars; that they must be taken as they were found; that undoubtedly something fixed on the ground was found there which was act otherwise explained; and that the defendants were unable to show other pillars which should be preferred. The fact that the defendants did not admit the correctness of the trijunction pillar is immaterial, because they admitted nothing. Oral evidence would have been valueless because no witness could have deposed that any particular pillar was a pillar of the revenue survey.

The fourth point requires more detailed consideration. It appears that in 1919 there was a dispute between the Raja of Jharia and the Raja of Pachete about the northern boundary of Dhekbera and the southern boundary of some of the Jharia villages and, In particular, about the possession of the bed of the Damodar river. The judgment of the Assistant Superintendent of Survey, Ex, G-l, is printed at page 82 of the paper-book Part III and the judgment in appeal by the Superintendent of Survey Ex. G, at page 86. The Assistant Superintendent observed in his judgment that he had had a trace prepared showing the revenue survey line and the present survey and that this trace showed that there had been very slight alterations in the course of the river. He also said:

It may be noted that in this part the revenue survey line runs a few yards north of the present bank,

The Superintendent of Survey observed that he had examined the comparative trace and there had been no material alteration in the course of the river. This comparative trace is Ex. F and it shows the northern boundary of Dhekbera according to the revenue survey somewhat to the north of the cadastral survey line and it is said to show two of the three stations in the liver as it runs now, though it is not clear what the marks described as pillars really mean. Now it is difficult to see how the judgments of the Survey Officers in a dispute between the Rajas of Pachete and of Jharia given in 1921, after the Raja of Pachete had granted the lease to the plaintiffs, could be evidence against the plaintiffs in the present litigation. Further, u/s 41, Bengal Survey Act (Bengal Act V of 1875), the Collector is to determine the boundary according to actual possession. The judgments would, therefore, in any case be no evidence of title: Babu Kasturi Singh v. Rajkumar Babu 8 C.W.N. 876. The correctness of the tracing (Ex. F) has not been proved. All that the evidence shows is that it was prepared by the head draftsman of the cadastral office. Witness No. 8 for the defendants who proved the signature of the draftsman cannot say whether the tracing was accurately made or not. We doubt whether it can be said that this is a map to which the presumption of correctness attaches. In any case the value of the map would depend upon what the Survey Authorities understood to be the bank of the river at the present time; but it may be a matter of opinion where the bank begins.

In connexion with the fifth point, learned Counsel relied upon Ex. A, Satyataran Chaudhury''s working plan. That plan shows the eastern boundary to be 841 feet and it is said that it runs up to the river bank whereas the Commissioner''s trijunction point No. 24 is at some distance from it. What the Commissioner says is that point No. 24 was 178 feet from the sand bed of the Damodar, But this working plan is wholly valueless as evidence. u/s 83, Evidence Act, "the Court shall presume that maps or plans purporting to be made by the authority of Government were so made and are accurate"

No such presumption can attach to this document and there is no proof of its correctness. Learned Counsel for the appellant relied upon the evidence of Gobinda Charan Mukharji, the assistant manager of the plaintiffs'' colliery, who said that the southern boundary in Ex. A corresponded to the cart-track of the Commissioner''s map No. 3. This appears to be based upon some calculation of distances between the A quarry in the Commissioner''s map and the cart-track, and the quarry shown in the working plan and the southern boundary. But it was shown by the learned Advocate for the respondents that if the quarry is situated at the apex of a triangle the base of which is 84l feet and the sides of which are 1410 feet and 1070 feet respectively, it will not be situated as shown in Satyataran Chaudhury''s plan and the whole argument that the cart-track in the Commissioner''s map is really the southern boundary of the village falls to the ground.

The learned Counsel for the appellant strenuously argued that the position of point No. 24 must be wrong because it is not 841 feet, the admitted length of the eastern boundary from the trijunction point No. 23. The fallacy in this argument is that point No. 23 is not a trijunction point. It appears from the map that the trijunction of Dhekbera, Pathargada and Gurgaon was disputed and the plaintiffs contended for a site further south than the Commissioner has shown on his map while the defendants, apparently contended for a site further north.

Learned Counsel for the appellant relied upon the fact that the quarry referred to as the plaintiffs'' 0 quarry is outside the Commissioner''s chain line. Part of this quarry is now in the river; and it is argued that the boundary must have been further north. But the fact that there is a quarry north of the Commissioner''s chain line does not show that ha has made any mistake about the boundaries of the village or about the trijunction points on the north.

Looking at the case generally there can be no doubt that the Commissioner''s map of the locality (map No. 1) is a correct delineation of the surface of the coal-field. This is proved by the traverse table. The Commissioner, in making the map, took pillars as he found them which, as the result of his experience, he judged to be the pillars of the revenue survey. At this stage his work must be tentative in the absence of direct; evidence identifying the pillars; but when it is found by superposing the map of the locality on the revenue survey map that the outlines agree, then there can be no doubt that those pillars used by the Commissioner were identical with the revenue survey pillars. Basing his map on the pillars which he found on the north he arrived on the south at point No. 17 at which ha found a stone at the trijunction of villages. It seems impossible, therefore, that the pillars upon which the Commissioner based his survey on the north should have been situated further south than the revenue survey pillars actually ware. The appellant, therefore, fails on both the grounds takes by him and the appeal must be dismissed with costs against all the appellants including the added appellant.