Radha Kishun and Others vs Shyam Das and Others

This appeal arises out of a suit which related to 136 bighas 8 kathas and 16 dhurs of land and the main, question to be determined is whether the disputed lands appertain to the plaintiff''s village Jagdishpur Baili or the defendants'' village Jangi Pakahi. Jangi Pakahi is to the south of Jagdishpur Baili and it is common ground that the disputed lands were measured and entered as plots Nos. 1037 and 1038 of the cadastral survey map and Record of Rights of Jagdishpur Baili prepared in 1892-93. A commissioner was deputed by the trial Court to make a local investigation and by means of local measurements to compare the cadastral survey maps of Matiza Jagdishpur Baili and Jangi Pakahi with the revenue survey maps of 1833-31 and the diara survey maps of 1865-60 of the said villages.

He was not supplied with the field-book of the revenue survey and has noted in his report that:

in the absence of the field-book the enlargement of the revenue survey map to the scale of the cadastral survey map could not be accurate.

He made a comparison of the cadastral survey and the diara survey maps of Jagdishpur Baili and Jangi Pakahi and found that about 115 bighas 12 kathas of the disputed land fall within and appertained to Jangi Pakahi and 19 bighas odd fell within Jagdishpur Baili and 1 bigha 16 kathas odd belonged to another village Panapur Bahaki according to the boundaries shown in the diara survey maps. He farther reported that from the configuration of the diara and revenue survey maps it appeared to him that the boundaries shown in the one agreed with those shown in the other. But he nowhere definitely says in which village the disputed lands fall, according to the revenue survey maps.

The learned Subordinate Judge was of opinion that in the state of the evidence before him he could not go behind the cadastral survey and held that the whole of the disputed land appertained to the plaintiffs'' village. He accordingly decreed the suit. Defendants 1 to 3, 11, 16 to 18, 30 to 32 and the heirs of defendant 29 only have appealed the other defendants have not appealed; Plaintiffs 4 to 25 are not only proprietors of Jagdishpur Baili but are also proprietors of Jangi Pakahi and so far as their shares in the disputed lands are concerned there is no dispute.

Before proceeding to deal with the points urged on behalf of the appellants it will be necessary to state briefly the circumstances under which the present suit was instituted. When the cadastral survey took place plot No. 1037 was in the bed of the river Ganges and plot No. 1038 which is to the south of plot No. 1037 was more or less a tract of sand; in other words, the river was at that time flowing to the north of plot No. 1038. Afterwards when the lands became culturable a dispute arose, and proceedings were drawn up u/s 145, Criminal P.C. regarding a large area over 700 bighas including the land in dispute. Claims were put, forward by the maliks of tauzi No 3801 and the maliks of tauzis Nos. 3802 and 3803 of Jagdishpur Baili, but no claim was then preferred by the maliks of Jangi Pakahi.

Ultimately all the lands which were then in dispute were attached by the criminal Court u/s 146, Criminal P.C. Thereupon the proprietors of tauzi No. 3801 brought a title suit (No. 177 of 1918) before the Subordinate Judge of Muzaffarpur against the proprietors of tauzi Nos. 3802 and 3803 claiming possession of the disputed lands. On 10th September 1919 the suit was decreed on the basis of a compromise and in January 1920 the proprietors of tauzi No. 3801 got delivery of possession of the lands through civil Court. It appears from the report of the Commissioner who was deputed to deliver possession that the maliks of Jangi Pakahi raised objections to the proceedings, but he did not entertain those objections as they were no parties to the suit. Shortly afterwards, in March 1920, the criminal Court finding that there was a dispute between the proprietors of Jangi Pakahi and those of Jagdishpur, Baili drew up proceedings u/s 145, Criminal P.C., in respect of the lands which are the subject matter of the present litigation, and ultimately these lands were attached on 16th September 1920.

The present suit was instituted on 1st August 1927.

Mr. Manohar Lal, counsel for the appellants, has in the course of his argument, referred to the map drawn by the Commissioner who delivered possession to the decree-holders in Suit No. 177 of 1918 as well as to ascertain other maps. It is enough to say that while these maps are of assistance in comprehending the nature and scope of the dispute they do not as evidence materially support the contention of either party; the case will have to be decided with reference mainly to the cadastral survey, revenue survey and diara survey maps and the report of the Commissioner. Now, a perusal of the Commissioner''s report would show that the field book of the revenue survey not being before him he in conclusion merely gives the result of his comparison of the cadastral survey maps with the diara survey maps of the two villages.

It is true, he says, at one place, that from the configuration of the revenue survey maps and diara survey maps of Jagdishpur Baili and Jangi Pakahi, it appeared, to him that the boundaries of the said two villages as shown in the revenue survey maps of 1843-44 were the same as, those shown in the diara survey maps of 1865-66. But the question here is whether certain specific lands are part of one village or the other and that question can hardly be decided by looking merely at the configuration of the two maps. The Commissioner expressed himself very guardedly, and he had good reason for this caution. Ho found that the whole of village Jagdishpur Baili had been washed away after cadastral survey in 1892-93 and when he went there, the major portion of the lands of the village was either sandy or covered with dense jungle.

The river which at the time of the cadastral survey was flowing near Jagdishpur Baili was now flowing at a very great distance to the north of Jagdishpur Baili through mauza Hitanpur. Thus there were no permanent marks an Jagdishpur Baili itself and the Commissioner had therefore to start his measurements from two tri-junctions which were at a considerable distance to the north of Jagdispur Baili and he admits that he had to measure across a big river. He admittedly did not conduct the enquiry with the help of a theodolite, but used a prismatic compass and as the learned Subordinate Judge remarks this fact would to a certain extent affect the accuracy of the result arrived at by him.

According to the Commissioner''s map about 115 bighas of lands appertained to Jagadishpur Baili, but it is to be remembered that we must allow some margin of error considering that the Commissioner had to work under certain obvious disadvantages, and as the diara survey map has been enlarged to the scale of the cadastral survey map, the error whatever it may be will have to be multiplied by four. Then again, as has been pointed out by the learned advocate for the respondents, all that the Commissioner''s report can be legitimately taken to show is that there is a discrepancy between the Gangetic survey map of 1865-66 and the cadastral survey map of 1892-98 and there can be no doubt that when there is such a conflict the cadastral survey map must be given preference. As has been pointed out in Musammat Bibi Wakilan Vs. Babu Deo Nandan Prosad and Others, the object of the Act under which the Gangetic survey map was prepared

was the assessment of land gained from river by alluvion or dereliction and the Act has no operation where by change of possession lands forming part of one estate became annexed to another estate.

The Gangetic survey therefore could not be very strong evidence of possession and could not have the same value as evidence of title as the revenue survey map. In our opinion therefore the learned Subordinate Judge was correct in holding that the Commissioner''s report was not sufficient to rebut the cadastral survey map. Mr. Manohar Lal goes even so far as to say that it was not necessary for the Commissioner to go to the spot and take any measurement and all that was required under the circumstances was either to enlarge the revenue survey map to the scale of the cadastral survey map or to reduce the latter to the scale of the former and show by superimposition the excess lands which originally appertained to Jangi Pakahi, but which have now been included in the cadastral survey map.

This is obviously not the view taken by the Commissioner himself, because he says is his report that in the absence of the field book of the revenue survey map "the enlargement will not be accurate." However that may be, the cadastral survey map being the latest map of the locality is entitled to great weight and where there is conflict between it and the revenue survey map, there may in certain cases be good reasons for preferring it to the latter: see Brindraban Prasad Vs. Gopal Saran Narayan Singh, . In this case we do not know the history of the land between 1843, when the revenue survey map was prepared, and 1892-93 when the cadastral survey operations took place. There is thus nothing before us to warrant the assumption that the officers who prepared the cadastral survey map must have made a mistake.

It was urged on behalf of the appellants that the entry in the cadastral survey map had no presumptive value as against the landlord of a neighbouring estate, but this argument seems to be untenable in view of the clear expression of opinion by this Court on this point in Bibi Wakilan v. Deonandan Prasad (1) and Mazharul Ekbal @ Muna Mia and Another Vs. Raja Gopal Lal Ray Bahadur and Another and M. Mariamun Nisa and Others, as well as the clear words of Section 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.

Mr. Manohar Lal contends that the present case will be governed by the Bengal Tenancy Act as it stood before the amendment of 1898 inasmuch as the cadastral survey took place in 1892-93 and he has asked us to read in this connexion Sections 102 to 109 of the old Act. His main argument is that the cadastral survey entry could not be questioned by the landlord of Jangi Pakahi u/s 106 of the old Act, and therefore no presumption would arise as against a neighbouring landlord u/s 109.

It appears to us however that Section 102, which lays down what matters are to be entered in the Record of Rights by the revenue officers, is very wide and so is Section 109(2) which runs as follows:

Every undisputed entry in the record shall be presumed to be correct until the contrary is proved.

In our opinion Section 109, as it then stood cannot be read in a restricted manner and the presumption which arises under it cannot be confined merely to the tenants holding land within a particular estate. Learned Counsel for the appellants was on firmer ground in arguing that too much weight could not be attached to the cadastral survey papers in view of the fact that disputed lands were shown there to be either under water or as covered with sand.

It is contended that the lands in question being either sandy or under water were incapable of possession and therefore the cadastral survey entry showing the plaintiffs'' possession is almost valueless. Now, there can be no doubt that where the lands are culturable and definite acts of possession such as tilling, sowing and reaping the crop, etc. can be exercised over them, the presumption of actual possession raised by the survey entry would be stronger than where the land is wholly unfit for cultivation.

But it does not necessarily follow that the land which is covered with sand or water is wholly incapable of possession, or such lands must in all cases be regarded as no man''s land.

Apart from the doctrine that possession follows title such lands are capable of possession in various ways as has been pointed out by one of the learned Judges of this Court in Brindaban Prasad v. Gopal Saran AIR 1928 Pat 36. It is therefore not quite correct to say that no presumption, should be raised in favour of the plaintiffs in this case merely on account of the condition of the lands at the time of the cadastral survey. As the Judicial Committee has observed in Jagadindra Nath Ray v. Secy. of State (1903) 30 Cal 291, the maps and surveys made in India for revenue purposes are official documents prepared by competent persons and with such publicity and notice to persons interested as to be admissible and valuable evidence of the state of things at the time they were made.

It has been pointed out in Musammat Bibi Wakilan Vs. Babu Deo Nandan Prosad and Others, that it is wrong to say that the proprietor of one estate has nothing whatever to do with the preparation of the Record of Rights of another estate belonging to a neighbouring proprietor since the preliminary survey must determine the boundaries between the two estates. It is significant that plot 1238 which is sandy is to the south of plot 1037 which is shown as the river in the map The following extract from the judgment of Das, J., in Musammat Bibi Wakilan Vs. Babu Deo Nandan Prosad and Others, where the facts were almost similar to the facts of this case will show why it is necessary to attach importance to this fact:

The cadastral survey map shows that plot 1286 was then under water, but that the plot to the South of plot 1286 namely plot 1287 as well as the plots to the north and east of the plot 1286, were dry lands when the map was prepared. Now the important plot is undoubtedly plot 1287 which lies to the north of Tikarampur as shown in the Cadastral Survey map. If the defendants'' case is true, namely that they were in possession of the disputed land at the time of the diluvion, they would undoubtedly have claimed plot 1237 as appertaining to their Tikarampur, and, if they had done so, some argument might have been founded on the undoubted fact that plot 1286 was then under water and was difficult of identification. But so far as plot 1287 is concerned, there was no difficulty in identifying it as part of Tikarampur. Their failure to do so suggests an inference that they were not in possession of it as part of their Tikarampur. It they thought that plot 1287 was part of Khutia, they must have thought that plot 1286 which was north of plot 1287 and therefore farther away from Tikarampur was part of Khutia.

It was said on behalf of the appellants that the cadastral survey map is only evidence of possession and no evidence of title unlike the revenue survey map which is some evidence of title. But title may in certain cases be inferred from long possession and where the question is whether certain lands appertain to one or the other of two neighbouring estates, if it is to be presumed that the boundaries of the two estates as shown in the cadastral survey paper are correct, that fact by itself may be regarded as some evidence of title. What appears to us however to be more important for the purpose of deciding this appeal is that there is no evidence on the record that the state of things shown in the cadastral survey record was disturbed or questioned until the litigation between the parties began in the criminal Court.

In other words it may be presumed that the possession of the plaintiff''s which is undoubtedly supported by the Record of Rights continued for more than 12 years before the institution of the suit and this by itself is sufficient to entitle the plaintiff to succeed in the suit. Mr. Manohar Lal vehemently attacked the evidence of actual possession adduced by the plaintiff in the trial Court and we will briefly refer to this evidence. The plaintiffs have examined their patwari (P.W. 1) and gomasta (P.W. 3) and produced some village papers as measurement khesras, jamabandis and counterfoil receipts and siahas. The measurement khesras and jamabandis are for the years 1312 to 1332 and the counter foils and siahas are for the years 1318 to 1326.

The evidence of the gomasta is that five or six years alter the survey the disputed land became fit for cultivation and after this the maliks of Jagdishpur Baili settled them with certain tenants. Mr. Manohar Lal points out that paras. 4 and 5 of the plaint suggest that the land became culturable just before the proceeding under 8. 145 began between the proprietors of tauzi No. 3801 and those of 3802 and 3803 of village Jagdishpur Baili, about the year 1917. This he saya is sufficient to discredit the papers before the year 1317.

He further contends that the land being under attachment almost continuously from 1917 the plaintiffs could not have been in actual possession continuously during the period for which the village papers have been produced. These criticisms deserve consideration and the evidence produced on behalf of the plaintiffs will have to be approached with great caution. At the same time it is possible that small portions of lands may have here and there become culturable from the year 1318 as alleged by the plaintiffs, and it is also in evidence that after the lands were attached the plaintiffs took settlement of the land for some years. However that be, it is quite clear that there was a dispute with regard to these very lands in 1917 but the maliks of Jangi Pakahi did not come forward then to claim the land. This fact corroborates the evidence of P.W. 3 which is to the following effect:

In 1917, when the dispute arose among the maliks of Jagdishpur Baili, the maliks of Jangi Pakahi never attempted to take possession of the disputed land. I was present at the time of the dakhaldehani effected in favour of the maliks of Jagdishpur Baili After this the maliks of Jangi Pakahi attempted to take possession of it. Then there arose a 145 case and the land in suit was attached.

It is also to be remembered in this connexion that some of the maliks of tauzi No. 3801 and 3803 of Jagdishpur Baili are also maliks of Jangi Pakahi and it was never their case that the lands appertained to the village Jangi Pakahi. In our opinion therefore on the evidence on the record it may be safely held that the plaintiffs have been in undisturbed possession of the land in dispute at least since the cadastral survey, and are therefore entitled to succeed in the suit. It is said that the plaintiffs did not set up a case of adverse possession in the plaint, bat they have sued for a declaration of their title and they can establish their title in any way open to them under the law.

In our opinion this appeal ought to be dismissed, with costs, the hearing fee being divided between two sets of the contesting respondents.