Sailendra Kumar Bag vs Ashok Kumar Baul & Ors

Bibek Chaudhuri, J

Boundary dispute between two contiguous land owners is the only reason leading to institution of suit by the defendants/respondents in the year 1970 being Title Suit No.76 of 1970 against the plaintiff/appellant followed by another suit being Title Suit No.15 of 1975 instituted by the plaintiff/appellant against the author of Title Suit No.76 of 1970.

One Panchanan Baul, predecessor of the respondents instituted Title Suit No.76 of 1970 which was subsequently renumbered as Title Suit No.113 of 1990 praying for declaration of his title over the suit property and permanent injunction on the allegation that the defendant of the said suit (i.e. plaintiff of Title Suit No.15 of 1975) constructed his residential building on Plot No.516 pertaining to Khatian No.954 of Mouza-Santragachi without leaving side space towards a contiguous plot No.517 which he was under obligation to keep vacant as per the prevailing statute relating to construction of building and structure. Subsequently, by way of amendment it was alleged by the plaintiff of the said suit that the defendant had encroached upon a portion of land. Accordingly, the original plaintiff prayed for recovery of possession and other consequential reliefs in respect of encroached portion of land.

While the defendant was contesting the suit, it was felt incumbent upon the defendant of the said suit to institute Title Suit No. 15 of 1975 praying for declaration of title, recovery of possession and consequential reliefs of permanent injunction alleging, inter alia, that the plaintiff of Title Suit No. 76 of 1970 had encroached a portion of Plot No.516 and constructed a septic tank thereof.

It is pertinent to note that both the suits, subsequently renumbered as Title Suit No. 113 of 1990 and 112 of 1990 were heard analogously by the learned trial court and by a judgement dated 30th August, 2003 the learned trial court dismissed both the suits on contest.

The plaintiff of Title Suit No. 15 of 1975, renumbered as Title Suit No. 112 of 1990 filed an appeal challenging the judgment and decree of dismissal of the said suits before the learned District Judge, Howrah. The appeals were registered as Title Appeal No.251 of 2003 and 199 of 2003 respectively. Both the appeals were heard by the learned Additional District Judge, 5th Court, Howrah and upon hearing the learned Judge in first appellate court by a common judgement dated 3rd August, 2011 allowed the appeals by setting aside the judgement and decree of dismissal passed in the above mentioned suits and remanded the suits back to the trial court for re-trial with the following observations :-

" Therefore, considering all aspects the materials on record and after hearing both sides and keeping in the mind the observation of Hon'ble High Court, Calcutta and in view of my above discussion I think that judgement and decree as passed by learned court below cannot be sustained and is liable to be set aside and for the ends of justice the both the suits be send back on remand before the learned court below for retrial by appointing a survey knowing Commissioner for fresh local investigation to measure the two suits plots namely 516 and 517 for adjudication of the dispute between the parties. The costs of which shall be borne by the parties equally. The court below is also directed to frame an issue on the point of actionable nuisance as stated above and to give an opportunity to the parties to adduce evidence if any and to dispose of the suits in accordance with law."

The judgement and order of remand passed in said appeals are challenged before this Court by filing two Civil Miscellaneous Appeal being FMAT 1259 and 1260 of 2011.

The said Misc. Appeals came up for hearing for admission under Order 41 Rule 11 of the Civil Procedure Code before the Division Bench of this Court and by and order dated 30th September, 2011 the appeals were admitted on the following substantial question of law :-

" Whether the learned Judge in lower appellate court substantially, erred in law, in passing an order of remand when the trial court passed a decree upon consideration of the entire evidence adduced before it?"

At the out set, I am constrained to record that the Division Bench of this Court was factually wrong while formulating the substantial question of law inasmuch as the suits were not decreed but dismissed on contest by the trial court. At the time of hearing of the appeals, it is felt absolutely necessary for this Court to affirm substantial question of law under the provision of Section 100(5) of the Civil Procedure Code. Accordingly, the following substantial question of law is formulated:-

i) Whether the learned court of appeal substantially erred in law in passing the judgement and order under the provision of Order 41 Rule 23A of the Civil Procedure Code without formulating the terms of local investigation, in view of the evidence on record to the effect that both the parties have admitted their ownership and title in respect of plots being No.516 and 517 and in view of admitted facts that the plan annexed with the partition deed of the respondent and the deed of purchase of the appellants were defective, local investigation was absolutely necessary on the basis of relevant mouza plan, partition deed and deed of purchase?.

Mr. Ghosh learned advocate for the appellant submits that there is sufficient material and evidence on record for the Court to come to a conclusive decision with regard to right title and possession of the respective parties in respect of suit properties and also to decide as to whether there was any encroachment of either of the parties. It is also submitted by Mr. Ghosh that leaving aside the Advocate Commissioner's report the instant appeal can be disposed of declaring the right title and interest of the respective parties over the suit property and also by passing decree for permanent injunction and also by granting consequential reliefs on the basis of evidence on record even without taking into consideration the local investigation report.

I am afraid, this Court sitting under the determination of Civil Miscellaneous Appeal cannot go into the deep to the factual background of the cases leading to the instant appeal. Under Order 43 Rule 1 (u) read with Order 41 Rules 23, 23A and 25 of the Civil Procedure Code, the power of this Court is limited to adjudicate as to whether the judgement and order of remand passed by the lower appellate court is correct or not if this Court is of the view that the learned lower appellate court rightly remanded the suits for trial afresh on compliance of certain direction, the impugned judgement of order of remand must be affirmed. If on the other hand, it is found by the Court that the impugned judgement and order of remand cannot be sustained, the same must be set aside directing the first court of appeal to decide the appeals on merit.

Bearing the above principle in mind, let me consider the merit of the instant appeal.

Mr. Mukherjee, learned advocate for the respondents, on the other hand, submits referring to the schedule of the plaint of both the suits that the parties had referred to R.S Plot numbers in the schedule of the plaints and RS Record of Rights and Revisional Settlement Plan can only be relayed if at all local investigation is found to be necessary.

Well settled is the law that in case of discrepancy with regard to CS and RS records of rights, subsequent records of rights will prevail and presumptive value with regard to possession will be based on subsequent revenue record. However, in case of Mouza map the presumptive value of correctness of previous map is to be taken into account because in respect of mouza map the first one is the mother map in respect of a particular mouza which must be relied on.

In H.H. Maharaja of Coochbehar vs. Raja Mahendra Rajan Rai reported in LXVI Indian Cases 923, the Division Bench of this Court held, "There is no inflexible rule that a Survey map must have preference over a Thak map. The Thak and survey maps should, as a rule, agree, where they differ, the one that more nearly agrees with the local landmarks is the one which should be followed. There is no general or definite rule making it incumbent upon the court to follow either the one or the other, the court may, if it considers the Thak map more reliable, follow that in preference to the survey map."

The Division Bench of this Court in Soudamini Dassya and ors vs. Secretary of State for India in Council and others reported in 77 Indian Cases 707 had dealt with the evidentiary value of "new map" and its acceptenance in evidence in relation to section 6 of the Bengal Alluvion and Diluvion Act, 1847 and observed as follows:-

"The expression "any such new map" plainly refers to the "new map" made according to "new survey" as contemplated in Section 3. That section provides for periodical surveys at intervals of not less than ten years, alter a Revenue Survey has been completed and approved. The object of the "new survey" is to ascertain the "changes" that may have taken place since the date of the last previous survey,-that is, changes by alluvion or dereliction (not changes by possession); Bibi Wakilan v. Deo Nandan Prosad (4). Section 6 then imposes upon the Revenue Authorities the duty to assess what may be called added land, whenever, on inspection of the new map, it appears that land has been added to an estate paying revenue directly to Government. There must consequently be a comparison between two maps, made at an interval of not less than ten years and each showing the revenue paying estate concerned. That estate must, accordingly, be in existence as a revenue paying estate, if not before, at least on the date of the first of the two maps taken as the basis for comparison. We may usefully re-call here the following passage from the judgment of Wilson, J., in Saratsundari Dabi v. Secretary of State (3), which except in one particular, remains unaffected by the decision of the Full Bench and of the judicial Committee in Fahamidannissa Begum v. Secretary of State (2) and Secretary of State v. Fahamidannissa Begum (I): "The object of the Act is to provide for the assessment of riparian estates from time to time, in accordance with the changes which periodical surveys may show to have taken place in their area and boundaries. Section 3 of the Act refers to a Revenue Survey which is to be approved by Government as fixing the boundaries of estates, and provides that at intervals of not less than ten years, fresh surveys of such estates may be made. Section 5 then provides for a reduction in the sudder jama when on a comparison of two successive surveys it appears that the area of an estate has been diminished, and Section 6 provides for an addition to the jama when on inspection and comparison of the new map land appears to have been added to the estate since the last survey. In every case the starting point is to be the Revenue Survey which, it would appear, is to be taken as representing the boundaries of the estate as they existed at the time of the Permanent Settlement, and it is apparently not open to the Revenue Authorities to go behind that survey and enquire whether in fact the boundaries at the time of settlement were not other than therein represented."

It is already on record that the parties being contiguous land owners, are fighting over boundary dispute. Both the parties claimed that their adversary had encroached upon their respective lands.

In case of boundary dispute, from the ratio decided by the Division Bench of this Court in well celebrated decisions reported hereinabove, I may safely conclude that relayment of the disputed plot Nos. 516 and 517 must be made with that of the survey map. CS map of the mouza was the first public document depicting the area and measurement of the plots in a particular mouza. The disputed suit plots, therefore, are required to be relayed and compared with the CS mouza plan. Secondly, it is to be looked into as to whether there was any change in CS and RS mouza map in respect of the disputed plots. If there is any change in the subsequent mouza map, the same is to be asserted during local investigation and present features as to the area and measurement of the disputed plots are to be ascertained.

From the materials on record, it is ascertained that the local investigation commissioner while taking measurement of disputed plot nos.516 and 517, relied on the RS record of rights and the plans prepared in the Deed of Partition by virtue of which the respondents are claiming title over plot no.517 and the plan annexed with the Deed of Purchase by virtue of which the appellant got ownership and title over plot no.516. Since, both the parties admitted during trial of the suit and in course of hearing of the first appeal that there remain some discrepancies in both the plans attached with the Deed of Partition and the Deed of Purchase by virtue of which the contesting parties are claiming title in respect of their respective plots, local investigation ought to have been held after relayment of the said two plots with the mouza map prepared during CS operation. After relayment and identification of the plots in question with the CS mouza map and R.S mouza map and taking measurement of the same, the local investigation commissioner could only decide as to whether there is any encroachment by any of the parties over the land of his adversaries in such event both the courts of fact could have ascertained if there is any discrepancy with regard to area and measurement comprised in the said two plots as per the plans annexed with the Deed of Partition as well as the deed of purchase.

In view of the above discussion, while I concur with the findings and final decision arrived at by the first court of appeal while disposing of Title Appeals No.251 of 2003 and 199 of 2003, I deem it fit and proper to re-affirm the points on the basis of which the local investigation should be conducted afresh by appointing survey passed Advocate Commissioner.

The trial court is directed to appoint a survey passed Advocate Commissioner cost of which shall be borne by both the parties equally to investigate and submit report on the following points:-

i) The commissioner shall take measurement of suit plot nos.516 and 517 after relayment of the said two plots with CS and R.S mouza map.

ii) The Advocate Commissioner shall compare the measurement of the said two plots with the plan annexed with Deed of Partition on the basis of which the appellant becomes the owner of plot nos.517 and 516 respectively.

iii) The Advocate Commissioner shall submit a report after relayment of the land on the basis of the said document as to whether there is any discrepancy in measurement and area of the said two plots in between the mouza map and the documents of ownership of the parties.

iv) The Advocate Commissioner shall also record and report the locale features as pointed out by and on behalf of the appellant and the respondents.

The Advocate Commissioner shall submit his report positively within three months from the date of his appointment.

The learned trial court is directed to decide both the suits afresh on the basis of the report of the Advocate Commissioner within one month from the date of receipt of the report.

Before I part with, I am under obligation to record the submissions made by Mr. Ghosh that since filing of the suit the appellant would not take steps for making necessary repairing of his residential house standing on plot no.516. While dealing civil miscellaneous appeal, this Court is not in a position to pass any order allowing the appellant to effect repairing of his residential house situated on plot no.516. However, the appellant is at liberty to make such application before the learned trial court after serving copy of such application to the respondents and in such event, the learned trial court will dispose of such application in accordance with law giving opportunity to both the parties of being heard.

For the reasons stated above, both the appeals are disposed of with the above observations.

The Department is directed to transmit the lower court records to the trial court forthwith.

Urgent photostat certified copy of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.