Shashi Bhusan Banerji vs Ramjas Agarwala

Facts.--The Raja of Jharia granted a lease to the plaintiff on the 13th December, 1894. The Raja of Jharia is the proprietor of two contiguous mauzas, Dobari and Fatehpur, and on the 13th December, 1894, he granted the plaintiff and certain other persons an underground lease of 100 bighas of land in mauza Dobari, as described in the schedule, and put them in possession of the demised land. By successive transfers, to which it is unnecessary to refer, the plaintiff had become solely entitled to the interest created by the lease of the 13th December, 1894. On the 26th February, 1897, the Raja granted to the defendant an underground lease of 31 bighas in mauza Fatehpur, and described the land demised as bounded on the north by "the border of the limit of mauza Dobari". The defendants patta included a plan of the land demised and the defendant was put in possession of the demised land after it had been pegged out by the Raja''s surveyor.

Das, J.

[After stating main facts as set out above his Lordship proceeded.]

The disputed land is undoubtedly within the block of land of which possession was given to the defendant, and I have no doubt whatever on the evidence that the defendant has been continuously in possession of his 31 bighas, including the disputed land, from the date of his lease. As may be anticipated, the main question in this appeal is whether the disputed land, having an area of 10 bighas according to the plaint, forms part of the land demised to the plaintiff by the lease of the 13th December, 1894. The schedule annexed to the plaintiff''s lease describes the demised land as bounded on the south by:

the border of the limit of mouza Fatehpur as per thak" (not ''in the thak'' as in the translation of the lease at page 2 of the paper book. It is admitted that the translation is not correct)" and border of the railway line.

One of the questions argued before the Court below was as to the meaning of the words "as per thak." It was contended, on behalf of the plaintiff, that those words meant "as per thakbast map." The rival contention was that those words meant "as per thak demarcation," and it was argued that, as that demarcation was correctly picked up in the revenue-survey map, it is the revenue-survey map that must decide the question of the southern boundary of the land demised to the plaintiff. The learned Subordinate Judge referred the matter to a pleader commissioner to ascertain, with reference both to the revenue-survey map and the thakbast map, whether the disputed land or any portion thereof formed part of the block of land demised by the Raja to the plaintiff. The commissioner reported that according to the thakbast map nine bighas out of ten bighas fell within the land demised to the plaintiff but that, according to the revenue-surrey map, all the land except 1 bigha, 3 kathas, fell outside of Dobari and in Fatehpur. The report was not accepted by the defendant who called the commissioner as a witness and subjected him to along cross-examination. The defendant also relied upon the map prepared by Mr. Davies who held an independent survey on behalf of the defendant and upon the evidence of Mr. Davies. The learned Subordinate Judge has come to the conclusion that the report submitted by the commissioner is wholly unacceptable, and, taking the view that the plaintiff has failed to establish that the defendant has encroached on the land demised by the Raja to the plaintiff, has dismissed the plaintiff''s suit. He also held that the plaintiff''s suit is barred by limitation.

Before dealing with the arguments that have been advanced to us, it will be useful to refer to some of the antecedent transactions which have some bearing on the questions which have been argued before us. On the same day on whish the Raja granted a lease to the plaintiff, he granted another lease in identical terms to some persons who may be conveniently designated as the Bagchis of 410 bighas of coal land in mauza Dobari, bounded on the south by "the border of the limit of mauza Fatehpur as per thak" and on the east by "the limit of the 100 bighas taken lease of" by the plaintiff and C latkarijore." Now, the leases of the 13th December, 1894�one in favour of the plaintiff, and the other, which was before the Judicial Committee in Durga Prosad Singh v. Rajendra Naram Bagchi [1914] 41 Cal. 493, in favour of the Bagchis--were really part of the same transaction. The plaintiffs own case is that he concluded the negotiation for taking a lease of 500 bighas in mauza Dobari, but that he made over 400 bighas to the Bagchis. Now, a comparison of the boundaries in the two leases leaves no room for doubt that the Bagchis took the western portion of mauza Dobari, bounded on the north by mauza Bherakata and Chatkarijore, and on the south by mauza Fatehpur and that the plaintiff took 100 bighas to the east of the land to demised to the Bagchis. It follows that the plaintiff''s demised land, wherever it was, was to the east of the Bagchis'' land, and the the Bagchia land extends to mauza Fatehpur, and that no portion of the Bagchis'' land is situated to the north of the plaintiff''s land and that no portion of Jharia Mas, which is the western boundary of the land demised to the Bagchis, forms the western boundary of the land demised to the plaintiff, and that nothing which is to the west of Bagchis'' land can form the western boundary of the plaintiff''s land.

In 1902 the Raja of Jharia instituted a suit, being suit No. 41 of 1902, against the Bagchis. The question in debate between the parties in that litigation was whether the words "as per thak" meant as per thak survey or as per thakbast map. In that case Bhudeb Babu was appointed commissioner, and he prepared a map (No. 20) Ex. A. 29, showing the boundaries of Dobari, both according to the revenue survey map and the thak map. The plaintiff gave evidence on behalf of the Raja in that litigation on the 27th November, 1902. His evidence was to the effect that the settlement of the boundaries was "according to the survey map" (by which he undoubtedly meant revenue-survey map) and that "there was no talk of the thak map" at the time of the settlement.

Now, if the term "as per thak" be at all equivocal and extrinsic evidence be admissible to explain the meaning of the term, the evidence of the plaintiff in 1902 may be relied upon by the defendant to explain the meaning of the term as understood by the plaintiff at the time of his lease.

In 1906 the Raja instituted a suit for rent, being suit No. 135 of 1906, against the plaintiff. The plaintiff, as defendant in that suit, filed a written statement, and he definitely alleged that "the land lying within the boundaries mentioned in the patta did not exceed 62 bighas."

He also alleged that the Raja had settled some portion of his land with the present defendant and he submitted that the Raja was not entitled to recover any rent from him. The map prepared by the commissioner, appointed in that suit to hold a local investigation, is Ex. A 1 and his report is to be found at page 38, Part 3 of the paper book. It will appear that the plaintiff pointed out an area of 61 bighas, 1 hatha, as land demised to him, out of which the present defendant, according to the case then made by the present plaintiff, was in possession of the plot shown as B in the commissioner''s map. Now map A 1 has been relaid by the present commissioner on his map, and he has shown that the area of plot B is 3 bighas, 16 kathas. It is only necessary to add that plot B of map A 1 forms the northernmost portion of the disputed land.

Two conclusions follow from the case made by the defendant in 1906; first, that the boundaries mentioned in his lease could not have been according to the thakbast map; and, secondly, that the encroachment of the defendant could not have exceeded 3 bighas, 16 kathas. The first conclusion follows from the commissioner''s report that the area of the demised land as per thakbast map is approximately 100 bighas. The second conclusion follows from the location of the land then pointed out by the plaintiff as being in the possession of the defendant. That land forms the northernmost portion of the disputed land, and it is impossible for the plaintiff to contend, and he does not contend, that the defendant, in the course of his mining operations, has encroached upon any portion of the land lying to the north of the land of which he had taken possession in 1906. That being so, it is necessary to scrutinize with care the case now made by the plaintiff that the land of which the defendant was in possession in 1906 and of which he did not complain in 1906, forms part of the land demised to him by the Raja. The suit resulted in a consent decree which left the question of abatement of rent open: [Ex. C, page 39, Part III, paper book]. All that I need point out at this stage is that there was no question of abatement of rent if the boundaries were to be ascertained by a reference to the thakbast map.

In 1915 the Raja instituted another suit for rent, being No. 257 of 1915, against the present plaintiff. The plaintiff''s defence in that suit was that the present defendant was in possession of 14 bighas, 17 kathas, of his land, but he made it quite clear that he was short by 14 bighas, 17 kathas, according to the revenue survey map. Rakhal Kinkar Bhattacharjee was his manager, and giving evidence on behalf of the present plaintiff in that litigation, he stated definitely that he and the Raja''s surveyor held a joint survey and that, according to the revenue-survey map, the area demised to the plaintiff by the Raja was short by 14 bighas, it kathas, which was in the possession of the defendant. There is little doubt that from 1902 up to 1915, the case of the plaintiff has been that the boundaries mentioned in his lease are to be ascertained by reference to the revenue survey map.

The real controversy between the parties is as to the meaning to be assigned to the term "as per thak" in the plaintiff''s lease of the 13th December, 1894. Now, the word thak literally means "a small boundary demarcation mark" (See Hirst''s Notes on the old Revenue Surveys, page 87). Literally, therefore, the term "as per thak" must mean as "per small boundary demarcation pillars." But it is conceded that, at the date of the lease, these demarcation pillars were not in existence. The contention of the plaintiff is that the Raja could not have meant the demarcation pillars by the term "as per thak," since these demarcation pillars were no longer in existence, and that he meant, and could only have meant, the thakbast map, of the existence of which he knew. The contention of the defendant, on the other hand, is that if it is possible to show that these demarcation pillars were picked up on the ground and delineated on a correct map, the issue is solved and the question is determined; and the defendant argues that since it was the object of the revenue-survey to pick up the demircation pillars on the ground and to prepare the revenue-survey map which is a map of the boundaries as laid down by the thak authorities on the ground, it is the revenue-survey map which must govern the rights of the parties. The problem is by no means a simple one, and requires for its solution a careful investigation of the methods adopted by the revenue authorities for demarcating villages for revenue purposes.

Now, the Government realized that, in order to make the revenue-survey map authoritative on the question of the boundaries between different villages, it was necessary to proceed with care, and to hold an elaborate local enquiry with the object "to demarcate finally on the ground the boundaries of all villages and estates in the area for survey" [Hirst, page 7]. It was quite impossible to undertake the duty of preparing revenue-survey maps until the boundary disputes were settled; and the task of settling these boundary disputes and to demarcate finally on the ground the boundaries of all villages in the area for survey was assigned to the civil authority and not to the survey authority. The thakbast (demarcation) survey was the survey held by the civil authority for settling all boundary disputes and to denarcate on the ground the actual boundaries of villages. This survey was held about a year before the scientific work of the revenue survey was to commence, and, whilst the demarcation on the ground was being done, rough maps were made by the civilian staff, showing the boundaries of each village, and also the position of the demarcation marks (thaks) left on the ground. According to Hirst:

The methods of demarcation on the ground varied; the general rule was to place thak marks, at measured intervals of 200 to 300 feet round a boundary, and to place dhurs (large mud pillars about 5 feet high) at all principal bends in the village boundaries and at all village trijunctions (triple junctions of villages). The thak marks might be small mud pillars, bamboo pegs, or any form of mark that would appear to be likely to stand for twelve months. All these marks were placed round village and estate boundaries, and each mark was supposed to be shown on the thak map.

Captain Hirst continues:

It is often assumed that the marks were shown accurately upon the thak maps; but this is a fallacy; it is soldom that thak maps are really accurate, mainly because very often there was no intention to be accurate.

It will be noticed that the duties of the civilian staff connected with the thak survey were mainly two; first, to settle boundary disputes and to demarcate on the ground the actual boundaries of villages and estates and to place thak marks at measured intervals round a boundary and at all principal bends in the village boundaries and at all village trijunctions; and secondly, to make rough maps known as thak maps showing the boundaries of villages and the marks left on the ground which were seldom accurate because there was no intention to be accurate. As I shall presently show, the revenue surveyor proceeded on the actual work done by the civilian staff on the ground and on the thaks left by them on the ground, and not on the thak map which they merely consulted in order to see whether the actual number of thak marks put down on the ground corresponded with the number as shown in the map.

Before dealing with the revenue-survey, it will be well to point out, that there are three main kinds of thak maps in existence: (a) eye sketches in which no actual measurements were made; (b) maps in which rough magnetic bearings were used and rough linear measurements made, and (c) maps made from careful magnetic bearings and careful linear measurements. It is admitted that the thak map which has been produced in this case is of the second kind, that is to say, it is a map in which rough magnetic bearings were used and rough linear measurements made. It is not disputed in the case that it is quite impossible to expect such maps to be accurate, but it is contended on behalf of the appellant that however inaccurate that map may be if his demise was on that map, it is that map which must decide the boundary dispute between him and the respondent'' However correct the position may be in theory, it is still necessary to see whether in practice it is possible to relay on the ground a map in which rough magnetic bearings were used and rough linear measurements made. I am for the present assuming that the term "as per thak" means as per thak map. With reference to this point, Captain Hirst says that:

thakbast maps were often intended to be inaccurate and were never intended to be accurate," (page 59, that "accurate relaying from a thak map by itself is often difficult and, in many cases impossible.

Now, it is difficult to understand how thak map of Dobari could be relaid on the ground, since the materials collected by the Demarcation Officer, and the field book prepared by him, are no longer in existence. The essential pre-requisite for relaying is that there must be two fixed points on a map corresponding with two fixed points on the ground. But the thakbast pillars are no longer in existence and it seems to me that it is quite impossible to relay the thakbast map unless indeed the materials collected by the thakbast officer and his field book are in existence. But it is argued that if there are two fixed points on the ground which correspond with two fixed points on another map, and if these two fixed points in the other map, correspond with two fixed points in the thakbast map, then it may be assumed that the two fixed points on the ground correspond with the two fixed points on the thakbast map. The argument, in the form in which it is put, may be accepted as correct; but it seems to me that if the condition for relaying the thakbast map is that there must be two fixed points in it corresponding with two fixed points in the revenue-surrey map, which is the other map referred to in the arguments advanced on behalf of the plaintiff you are in effect relaying the revenue-survey map, and not the thakbast map. The question is, whether the thakbast map can be relaid on the ground. It is conceded that it can be, if you have the fixed marks (thakbasts) in the map corresponding with the fixed marks on the ground, or (if that is impossible) if you have the field book prepared, and on the materials collected, by the thakbast authorities. But it is admitted that it is impossible to satisfy either of these conditions in the present case. But then it is said that there are trijunction pillars on the ground which correspond with the fixed points in the revenue-survey map and that, if it can be shown that the fixed points in the thakbast map correspond with the fixed points in the revenue-survey map, there is no difficulty in relaying the thakbast map. I agree that it can be done; but, in my opinion, it is the revenue-survey map that would be relaid. If the revenue-survey map and the thakbast map agree; then there is no competition between the two, and it is a matter of indifference whether you proceed on the one or on the other. The question assumes importance only when they do not agree: and. in my opinion where the two maps do not agree, it is quite impossible to relay the thakbast map, unless indeed the demarcation pillars, put down on the ground by the thakbast authorities, are still in existence, and they correspond with the boundary pillars, as shown in the man, or you have the field book and the materials collected by the thakbast authorities and are able to proceed on them.

It will be instructive to examine the methods adopted by the commissioner in this case. He first prepared a map of the locality, map A, and ran his chain line through stations 12, 9 and 6, which happened to be three pillars which he found on the ground, and which he assumed to be revenue-surrey trijunction pillars He then marked the positions of 12 and 9 on the revenue-survey map; and, taking the line joining 12 and 9 as his base line, he superposed the revenue-survey map on map A, and produced his map A 1. Now this map shows that practically the whole of the disputed land is outside of Dobari and, therefore, not included within the lands demised to the plaintiff. It must follow that, if the revenue-survey map is to control the situation and, if the position of 12 and 9 were correctly ascertained by the commissioner, the plaintiff''s suit must fail, except with reference to a very insignificant portion. It is only necessary to add in connection with map A that the commissioner found that his station 6 was not a trijunction revenue-survey pillar, and that the points marked by him at W and I were trijunction points. W being the trijunction point of Dobari, Fatehpur and Khas Jharia, and I being the trijunction point of Dobari, Fatehpur and Ghanuadih.

The commissioner then enlarged his map to the scale of a thak map, and proceeded to superpose the thakbast map on the enlarged map B. The result, as shown in map B 1, is that practically the whole of the disputed land lies within Dobari, and therefore presumably within the block of land demised to the plaintiff. But the question at once arises whether the commissioner could have superposed the thakbast map on his enlarged map which, it must be remembered was in substance the revenue-survey map. Now, as I have already said, the essential condition of superposition is that there must be two fixed points on the map to be superposed corresponding with two fixed points on the map upon which the superposition is to take place, The fixed points of the commissioner were 9 and 12, 9 being the trijunction point of Dobari, Bera and Bherakata, and 12 being the trijunction point of Dobari, Ghanuadih and Bera. He found that the distance between 9 and 12 on the thakbast map was 2980 feet. He also found that the actual distance between the two points, the distance shown in his enlarged map, was 3,130 feet. It is obvious that the fixed points did not agree, and the task of superposing the thakbast map might well have been given up. The commissioner, however, proceeded by what the learned Counsel has described in this Court as the "process of approximation," that is to say he accounted for the difference of 150 feet in superposition by allowing 75 feet towards the east and 75 feet towards the west. In other words, he moved each of his stations 9 and 12 in his map B 75 feet, and artificially made the fixed points coincide. Mr. Sultan Ahmed informs us that this is a process well understood in surveying; but we have not been referred to any authority on the subject. It seems to me that to artificially reduce the length of the base line is to put the whole map out of gear, and the error in the resulting map will be the greater, the longer the distance you travel from the base line. It must follow that at the critical portion of the map, namely, fie southern boundary of the mauza, the map cannot possibly be regarded as in any way delineating its correct position even according to the thakbast map.

Now, the commissioner has demonstrated how impossible it is to superpose the thakbast map on the revenue-survey map. His map B (upon which the appellant strongly relies) is the map produced by superposing the thakbast map on his enlarged map taking 12 and 9 as the base line. Now 12 and 9 according to the commissioner, are revenue-survey trijunction points, and he has shown two other trijunction points in his enlarged imps W and I. Now if it is possible to produce a correct result by superposing the thakbast map, the same map should be produced whichever base line you may take for the purpose of superposition. Map B1 is the map obtained by superposing the thakbast map by taking 12 and 9 as the fixed points. If superposition is at all possible, then the map produced by superposing the thakbast map by taking W and I as the fixed points should be identical with map B1. But the commissioner, in his second report, says that an entirely different result was obtained by superposing the thak map taking W and I as the fixed points. He says that by such superposition he found that only 1 bigha, 18 kathas out of the disputed land fell within Dobari. I think Mr Hasan Imam is right in pointing out that the second report of the commissioner demonstrates how impossible it is to superpose an incorrect map on a correct map. If you superpose the thakbast map on the enlarged map with 12 and 9 as the fixed pointy, approximately 9 bighas of the disputed lands fell within Dobari. If you superpose the thakbast map on the enlarged map with W and I as the fixed points, only 1 bigha, 18 kathas, out of the disputed lands fell within Dobari. As Captain Hirst points out:

Accurate relaying from a thak map by itself is often difficult, and, in many cases impossible--(page 75).

I must make it clear, however, that my remarks apply to thakbast maps of the kinds (a) and (b) mentioned by Captain Hirst, and only when there are no fixed points on the ground corresponding with the fixed points in the map, and the materials collected, and the field-book prepared, by the thakbast authorities are no longer in existence.

I have digressed a little in order to demonstrate that if the words "as per thak" meant "as per thak map," then, it being admitted that there are no fixed points on the ground corresponding with the fixed points in the map and it also being admitted that the field-book of the thakbast map of Dobari is no longer in existence, it is quite impossible to relay the thakbast map on the ground, and the plaintiff''s suit must fail on the ground that it is impossible to ascertain whether the disputed land is part of the block of land demised to the plaintiff according to the thakbast map. But in my opinion the words "as per thak" mean "as per thak demarcation" and the whole problem for our investigation is whether it is possible now to say what are the thak survey boundaries of mctuza Dobari.

One of the objects of the revenue-survey was to make accurate maps of the village boundaries. As we learn from Captain Hirst, there existed a very stringent rule that no revenue-surveyor was to take up work upon any boundary until it had been adjusted by the demarcation officer, and, until all the thakbast papers were in his hands. The revenue-surveyor proceeded on the actual thakbast, that is to say, demarcation pillars laid down on the ground by the civilian staff, and the thak map to him:

Was little more than a guide to the actual number of thak survey marks put down on the ground. (Hirst, page 11.)

In other words, the revenue-surveyor used the thak map to verify the actual number of thak marks on the ground; but he made his map on the materials which he actually found on the ground, namely, the demarcation pillars {thakbasts) laid on the ground by the civilian staff. It was not difficult for him to pick up the demarcation boundaries on the map, since "the revenue-survey followed upon the heels of the thakbast survey" and since "the amins'' staff generally went over the ground immediately before the revenue surveyors, and mended all broken down marks." (Hirst, pages 14 and 15.)

If the boundaries shown in the thakbast map agreed with those picked up by the revenue-surveyor, he initialled the thakbast map. Now the signature of the revenue-surveyor on the thak map "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 and intended by the demarcation Staff, has been correctly picked up on the ground, and correctly surveyed on the revenue-survey map." (Hirst, page 15.)

I think it is established on the authority of Captains Hirst and Thuillier that the duty of the revenue-surveyor was to pick up the demarcation boundaries of the thakbast surrey on the ground and that the signature of the revenue-surveyor on the thakbast map signified, not that the thakbast map was correct, but that the demarcation boundaries laid down in the course of thakbast survey hare been correctly picked up on the ground and correctly surveyed on the revenue-survey map. Now we have the signature of the revenue-surveyor in the thakbast map of Dobari produced by the plaintiff. That signature establishes that the actual thakbast demarcation is correctly shown in the revenue-survey map. In my opinion the revenue-survey map of Dobari correctly shows the thak survey boundaries of the mouza Dobari, and that those boundaries can be ascertained by relaying the Revenue-survey map on the ground.

It was strongly contended that there are various difficulties in the way of accepting the revenue-survey boundaries, and that the boundaries, as they actually exist in the locality are not reconcilable with the boundaries, as mentioned in the lease, if we are to ascertain those bouniaries by reference to the revenue-survey map and not by reference to the thakbast map. Now the boundaries mentioned in the lease are as follows:

North.--Chatkarijore.

South.--Border of the limit of mauza Fatehpur as per thak and the railway line.

West.--Limit of the 400 bighas taken lease of by Rajendra Narain Bagchi.

East.--Border of limit of mauza Ghanuadih as per thak and Chatkarijore.

Mr. Sultan Ahmed says that the boundaries, as given in his lease, are not scientifically correct, and that they should have been described as follows:

North.--Limit of the 400 bighas taken lease of by Rajendra Narain Bagchi.

South and West.--Border of the limit of mauza Fatehpur as per thak and the railway line.

East.--Chatkarijore.

Mr. Sultan Ahmed''s argument is that the land demised is so formed that it is impossible to give its boundaries according to the cardinal points of the compass; and that if we determine the subject-matter of the lease according to the thak map, we get all the boundaries mentioned in the lease, whereas, if we refer to the revenue map, two of the boundaries, the railway line and Ghanuadih, must be rejected as false descriptions.

I will consider, first, the question of the railway line. To appreciate the point it must be remembered that in order to enable the plaintiff to claim the railway line as his western boundary, he must establish that the Bagchis'' land does not lie between the railway line and his land. The railway line is admittedly in Jharia Khas and outside the western boundary of mauza Dobari and, if, as is asserted by the defendant, the Bagchis'' land forms the western portion of Dobari from Chatkarijore down to the southern limit of the mauza it is obvious that the railway line cannot be the western boundary of the land demised to the plaintiff whether according to the revenue-survey map or according to the thakbast map. In order to meet this difficulty, it is suggested by the plaintiff that the Bagchis'' land is really his northern boundary and not his western boundary. Apart from the fact that his own lease describes his land as bounded on the west by the Bagchis'' land, it is sufficient to refer to the Bagchis'' lease (Ex. 4) and to compare the boundaries mentioned therein with the boundaries mentioned in the plaintiff''s lease to demonstrate that it is quite impossible that the Bagchis'' land could be the northern boundary of the land demised to the plaintiff. The Bagchis'' lease and the plaintiff''s lease were granted on the same day, and as part of the same transaction [see Ex. L. the deposition of the plaintiff in suit No. 41 of 1902]. Now the Bagchis'' lease shows that what was demised to him was a block of land measuring 400 bighas bounded on the north by mauzas Bherakata and Chatkarijore, on the south by mauza Fatehpur, on the west by mauza Jharia Khas and on the east by the land demised to the plaintiff. Comparing these boundaries with those mentioned in the plaintiff''s lease, the point is established beyond reasonable doubt that what was demised to the Bagchis was a block of land in Dobari from the northern limit of the mauza to its southern limit and that it was bounded on the west by Jharia Khas and on the east by the land demised to the plaintiff. Now the railway line referred to by the plaintiff is admittedly in Jharia Khas; that is to say, it lies to the west of the mauza. It follows that the Bagchis'' land would always lie between the railway line and the land demised to the plaintiff, and that the railway line cannot be the western boundary of the land demised to the plaintiff whether according to the revenue-survey map or according to the thakbast map, I quite agree that there would be a great deal in the argument if it could be shown that, according to the thakbast map, the railway line would be the western boundary of the land demised to the plaintiff, whereas according to the revenue-survey map it would not. But, in my opinion, the argument entirely fails, for, unless the plaintiff is no position to establish that the land demised to the Bagchis is situate to the north on the land demised to him, the Bagchis'' land would always lie between the railway line and the land demised to the plaintiff. I think I have shown with sufficient clearness that the Bagchis'' land is not the northern boundary of the plaintiff''s land that being so, there is nothing to choose between the revenue-survey map and the thakbast map, so far as one of the descriptions of the demised land is concerned. It may be mentioned that according to the description in the schedule, the railway line is the southern boundary and not the western boundary of the land demised. Admittedly there is no railway line to the south of the demised land, whether according to the revenue-survey map or according to the thak map. The railway line in Khos Jharia cannot be the western boundary of the plaintiff''s land, whether according to the revenuesurvey map or according to the thakbast map. It follows, therefore, that that description must be rejected as a false description.

Now, it may well be that, in the view that one of the descriptions by boundaries is a false description, the plaintiff may be entitled to claim that the description by area must prevail over the description by boundaries. But such a claim must be asserted against the lessor, and it cannot be tried in an action for ejectment against the defendant. It is obvious that if the southern or southwestern boundaries were not definitely fixed or were fixed by a description which has to be rejected, there can be no trespass on the part of the defendant. The argument that the area must prevail must proceed on the admission that the description by boundaries is not the dominant description, and ought to be rejected; but if we reject the description by boundaries, then all that the plaintiff is entitled to is 100 bighas of land in mauza Dobari. The defendant''s land is in mauza Fatehpur. And if the description by boundaries is to be rejected, obviously we cannot retain the term " as per thak," which merely specifies how some of the boundaries are to be ascertained. The plaintiff may have a complaint to make; but he must address his complaint to his lessor, and cannot try the question of area in an action for ejectment.

Next, as to Ghanuadih. According to the description in the lease Chatka-rijore and Ghanuadih are the eastern boundary of the demised land. Mr. Sultan Ahmed contends that the description is correct according to the thakbast map, but incorrect according to the revenue-survey map. Mr. Sultan Ahmed concedes that the jore must be taken as it existed at the time of the lease, and it is admitted that the jore has not changed its position since the revenue survey. In other words, according to Mr. Sultan Ahmed in order to determine the eastern boundary of the demised land we must proceed on the revenue-survey map so far as the jore is concerned, but on the thakbatt map, so far as Ghanuadih is concerned. Now the position of the jore, both according to the revenue-survey map and thakbast map, is shown in commissioner''s map Ex. 1. According to the thak map, Gha-naudih is to the east of the jore, as shown in map E 1 by double red broken lines, and cannot, according to the contention of Mr. Hasan Imam, be the eastern boundary of Dobari, as the jore runs between Dobari and Ghanuadih. Mr. Sultan Ahmed points out that station I is the trijunction point of Dobari, Fatehpur and Gha-nuodih, and that, at point 1, Ghanuadih is the estern boundary of the demised land. But station lis a revenue-survey trijunction point, and was ascertained by superposing the revenue-survey map, not the thakbast map, on the commissioner''s map A. Station I, as I have said before, is the trijunction point of Fatehpur, Ghanuadih and Dobari. Now the commissioner admits that the distance between his station 12 (the trijunction of Bera, Dobari and Ghanuadih) and I in the revenue-surrey map is 4,440 feet whereas the distanct between the two stations in the thakbast map is 4,750 feet. Station 12 is the fixed point in the two maps. It follows that station Jin the revenue-survey map is not identical with the corresponding station in the thakbast map. In my opinion, it is quite impossible to claim station I as establishing that Ghanuadih is the eastern boundary of the demised land, except by conceding that the revenue-survey map governs the situation. It follows that according to the thakbast map, Ghanuadih cannot be the eastern boundary of the demised land. On the other hand, no difficulty arises if we regard the revenue-survey map as governing the rights of the parties; for not only is station I the trijunction point of Dobari, Fatehpur and Ghanaudih, according to the revenue-survey map, but a portion of the jore in the revenue-survey map is part of Ghanuadih.

My conclusions on this part of the Base are, first, that the term "as per thak" means "as per thak demarcation," or (which is the same thing) "as per demarcation marks (thaks) showing the limits of the village which were left on the ground in the course of thak survey"; secondly, that the thak survey of Dobari or the demarcation marks are correctly shown in the revenue-survey map of Dobari; thirdly, that, if the term "as per thak" be at all ambiguous, and it is open to us to refer to extrinsic evidence, the conduct of the plaintiff throughout shows that by the term "as per thak" he understood "as per revenue-survey map," and fourthly, that if the term "as per thak" means "as per thakbast map," the plaintiff''s suit must fail on the ground that it is quite impossible to relay the thakbast map of Dobari on the ground. I am aware that the Calcutta High Court has taken a different view of the meaning of the term in the case between the Raja of Jharia and the Bagchis to which I have already referred. The Calcutta High Court came to the conclusion that the contention of the Raja that the term "as per thak" meant "as per pillars laid on the ground at the time of the thak survey" was futile, as no durable pillars were erected during the survey operation. Captain Hirst''s notes were not published till many years after the decision of the Calcutta High Court, and it does not appear that the views of Sir Henry Thuillier were placed before the Court. It seems to me that the answer to the argument employed by their Lordships of the Calcutta High Court is that, though no durable pillars were erected on the ground great care was taken to show the demarcation boundaries of the thakbast survey accurately in the revenue-survey map. The question was approach-ed from a somewhat different point of view in the Calcutta High Court, and, with all respect, I am unable to accept that decision as correct.

Now, if the revenue-survey map is to determine "the border of the limit of mauza Fatehpur," then, according to the commissioner, a very small portion of the disputed land falls within Dobari, and within the block of land demised by the Raja to the plaintiff, and the plaintiff would be entitled to a decree in respect of that portion provided his suit is within time. But the defendant contends that we should reject the report of the commissioner, and accept the evidence of Mr. Davies, according to whom no portion of the disputed land falls within Dobari. In order to determine this point, we have to consider the rival views of the commissioner and of Mr. Davies, remembering that the learned Subordinate Judge has rejected the report of the commissioner as untrustworthy and has accepted the map prepared, and the evidence given, by Mr. Paries.

Now I have no doubt whatever that the commissioner''s report ought to be wholly rejected. The accuracy of the commissioner''s report depends on whether he was right in taking stations 12 and 9 as true trijunction points on the ground. For the purpose of superposition he took 12 and 9 as his base line, and it is obvious that, if either of these points was not correctly ascertained, it will be impossible to rely on the map prepared by him. It is not disputed before us that he was right, or nearly right, in accepting the pillar at station 12 as the true trijunction pillar of Ghanuadih, Dobari and Bera; but it is strongly contended that this station 9 does not represent the trijunction point of Dobari, Bera and Bherakata as he thought it did. It is argued that the trijunction point of Dobari, Bera and Bherakata is to the northeast of station 9 (marked as 9A in Mr. Davies'' map) and that if the revenue-survey map be superposed on the commissioner''s map with the line joining 12 and 94 as the base line, it will be conclusively established that no portion of the disputed land falls within Dobari and therefore within the area demised by the Raja to the plaintiff.

The commissioner admits that he took no trouble to ascertain whether the pillar at station 9 was in fact the pillar showing the trijunction point of Dobari, Bera and Bherakata. In a case of this nature, it was essentially necessary for him to act with caution and to establish the identity of the fixed points on the ground with those in the revenue-survey map before proceeding with superposition. He made no attempt whatever to see whether the assumption made by him was correct, and this he could have done by first establishing the identity of another trijunction point and then working on the figures given in the revenue-survey map. With reference to the procedure adopted by the commissioner, the learned Subordinate Judge says as follows:

The commissioner should have taken other trijunctions to test the position of his stations 9 and 12 Apart from this the commissioner admits that defendant had the revenue map of Fatehpur with him during his survey. He could have taken the trijunctions of Fatehpur, Ghanuadih and Dobari and Fatehpur, Dobari and Khas Jharia from the said revenue map for the purpose of check. He could have easily relaid those trijunctions on the ground from the field book and the bearings of the said revenue map of Fatehpur.

In view of the fact that the position of station 9 as a true trijunction point was not ascertained by him, it is quite impossible to rely on his map since the encroachment covers such a small area as 1 bigha 3 kathas.

On the other hand the work done by Mr. Davies was thorough and complete. Mr. Davies is a consulting Mining and Civil Engineer who took his diploma at Cardiff twenty-two years ago. He has been in the practical field for twenty-two years and has great experience of "revenue-survey and thakbast maps. He accompanied the commissioner in his survey and prepared a map; Ex. (G), which shows, first, that the commissioner did not ascertain the correct position of the trijunction point supposed to be represented in his map by 9; and secondly, that according to the revenue-survey map the whole of the disputed land falls outside of Dobari, and within the block of land demised to the defendant. The real point is whether Mr. Davies is right in saying that 9 should be moved north-east of its position as shown in the commissioner''s map. If he is right in his view that the trijunction point should be shown at the double blue circle (see his map Ex. (?) to the north-east of the commissioner''s 9, then it will be impossible to resist the conclusion that there has been no encroachment by the defendant on the block of land demised by the Raja to the plaintiff; for the encroachment is slight according to the commissioner, and, once his base line is moved north-east; the southern boundary of mauza Dobari will be moved automatically to a position north-east of the position as shown by the commissioner, and the insignificant portion of the disputed land which is said to be in Dobari according to the revenue-survey map will be found to be in Fatehpur.

Now Mr. Davies proceeded by plotting, and not by superposition. In order to enable him to do so, it was necessary for him to find a well-tested base line as to which there could be no controversy whatever. He found that base line in AZ outside mauza Dobari, by making an additional survey outside the mauza. He was questioned as to his object in having the additional surrey, and his answer was:

My object in taking the additional stations was to have more than one revenue stations in my survey to enable me to work my survey with reference to the revenue survey.

He realized the importance of checking the correctness of the trijunction pillars, and this he did by making an additional surrey outside the mauza He found that A and Z agreed with his survey and the revenue field book figures. Having found that the positions of A and Z on the ground corresponded with their positions in the revenue-surrey map, all that he had to do was to plot out the revenue-survey map by proceeding along the revenue-survey chain-lines according to the figures given in the revenue-survey field-book. He had the combined revenue-survey map of Bherakata (where he made his additional survey) and Dobari with him, and although it was tedious, it was not difficult to relay the revenue-survey map of Dobari by proceeding along the revenue-survey chain-lines and following the directions given in the map. First, he proceeded from Z to X according to the measurements given in the revenue-survey map. From X he travelled to H (a revenue station) along the chain line. It was a comparatively simple matter for him to find by means of off-sets that 9 was not in a correct position, and that its true position is that indicated by double blue lines in his map (marked 9A by the learned Subordinate Judge). From H he followed the chain-line to G and found that his G was a revenue station as well as a trijunction point. It may be mentioned that G corresponds with the commissioner''s station 12, and Mr. Davies'' map shows that station 12 is practically (though not quite) a trijunction point. Having done this, he checked his result by retracing his steps from G with the help of the revenue-survey field-book. He established the accuracy of his work, and, in my opinion he has established that no portion of the disputed land falls within Dobari.

Now what reason is there for preferring the commissioner''s map to the map prepared by Mr. Davies? Admittedly the commissioner took no trouble to ascertain the position of the trijunction points. Mr. Davies on the other hand, has proceeded with care and caution, and, at every step, he stopped to test the accuracy of his work. Unless strong grounds are shown for rejecting the map prepared by Mr. Davies, we would not be justified in remanding the case for another local investigation, as we have been invited to do by Mr. Sultan Ahmad. It is well to remember in this connection that the plaintiff''s surveyor admitted in 1917 that, according to the revenue-survey map, the whole of the disputed portion would fall within Fatehpur [see Ex. R, Part III, page 82].

It was contended before us that the map prepared by Mr. Davies was improperly admitted in evidence, since he did not produce his field-book. I am not prepared to admit that the map was inadmissible in evidence without the field-book, but, in truth, there is no room for any grievance on the part of the plaintiff. The cross-examination of Mr. Davies extended over several days and Mr. Daries made it quite clear in his evidence that he had the field-book with him. The learned Vakil for the appellant deliberately refrained from calling on the defendant to produce the field-book. On the 17th September, 1919, it occurred to the defendant that the plaintiff was manoeuvering for position of tactical advantange, and he promptly filed the field-book in Court. It is true that the cross-examination of Mr. Davies was then over; but the case was proceeding, and it was open to the plaintiff to call upon the defendant to produce Mr. Davies for further cross-examination. This course the plaintiff studiously refrained from adopting. In order to remove all grievance, Mr. Hasan Iman, in this Court, offered to make order the field-book to the learned Counsel for the plaintiff and to produce Mr. Davies for cross-examination, and we, on our part, agreed to adjourn the hearing of the appeal in order to enable further evidence to be taken in this Court-Mr. Sultan Ahmed, on behalf of the plaintiff, declined the offer, and preferred to argue that the map was inadmissible in evidence without the field-book. In my opinion the argument is wholly inadmissible in view of the fact that the plaintiff did not object to the map Ex. G going in as evidence. As I have often pointed out, the question of proof is a question of procedure, and is capable of being waived by a party. Apart from any other consideration, I know of no provision which makes a map inadmissible in evidence without the Beld-book. Section 83 of the Evidence Act provides that:

Maps or plans made for the purposes of any cause must be proved to be accurate.

In my opinion, the failure to produce the field-book affects the weight to be attached to the map, and not its admissibility; and, as the defendant offered to give the plaintiff inspection of the field-book and to produce Mr. Davies for further cross-examination, there is no reason why we should not attach that weisrht to Ex. G which the evidence of Mr. Davies clearly demands.

Lastly, it seems to me that the field-book of Mr. Davies would not have thrown any greater light on his work than the revenue-survey field-book does. Mr. Davies proceeded by plotting, and not by superposition, and he states that he followed the chain-lines of the revenue-survey according to the figures given in the revenue-survey book. All that he did was to relay the revenue-survey field-book, and for this, an independent field-book was not necessary. He got his line AZ as his base, turned to the revenue-survey field-book, put his the idolize needle to point exactly to the degree recorded in the revenue-survey field-book, and proceeded along the chain-lines, putting his pegs at distances shown in the field-book. If his work was inaccurate, the inaccuracy could have been established by cross-examining him with reference to the revenue-survey field-book which was available to the plaintiff. But it is perfectly idle to complain that he did not produce his field-book, when the plaintiff studiously refrained from calling on him to produce the field-book and when he declined the offer made to him in this Court by Mr. Hasan Imam.

I have now to consider the specific grounds which have been urged in this Court for rejecting Ex. G, the map prepared by Mr. Davies.

It was contended that we should place no reliance on the map since the distance between blue A and blue Z according to Ex. J, the revenue-survey map of Bhuggutdeeh is 712 feet whereas according to the figures given in the revenue-survey map it is 704 feet. The argument is an attack upon the accuracy of the revenue-survey map of Bhuggutdeeh and it is sought to be established that if Ex. J, the survey map of Bhuggutdeeh be not accurate, no reliance can be placed upon the base line taken by Mr. Davies in connection with his survey. The whole argument is founded upon what Mr. Davies stated to be the distance between A and Z, according to his scaling out in the witness-box while under cross-examination. In the course of his evidence he said as follows:

The distance between A and Z in Ex, J. is 712 ft. according to my scaling out in Court." He added, "the distance is given in the revenue field-book."

It appears that the distance is really 704 feet according to the figure given in the revenue-survey map. Now the actual figure given in the map was not brought to his notice, and no opportunity was given to him to reconcile his statement with the actual figure given in the map. The difference is of 8 feet and I prefer to take the view that either his scaling out in Court is wrong or that the figure given in the map is wrong rather than that the map itself is wrong. We have not the explanation of Mr. Davies before us, and it is impossible to hold chat his map, Ex. G, should be rejected on the ground that there is an error in the length of his base line.

It was then contended that the magnetic variation of 11''�30" of his own instrument was not allowed by him in plotting. Now Mr. Davies did admit that tie bearings which he observed between A and Z during his survey did not coincide with the bearings between A and Z in the revenue-survey field-book. In his examination-in-chief he said that the difference was two minutes and odd seconds. In cross-examination he said that the magnetic variation of the needle of the instrument was eleven minutes and thirty seconds east variation, and that he obtained the variation by testing it from the true north line laid down by the Government in Jharia Pokhar and Jatnadoba. Now, in my opinion, it is quite irrelevant to enquire what the magnetic variation of his instrument was with reference to the true-north laid down at Jharia Pokhar and Jamadoba. He was concerned with the magnetic variation of his instrument with the true-north in the revenue map, and he stated definitely that this variation was two minutes. He appreciated the fact that there was a slight variation between his north and the true-north, and he says that he tested the correctness of his plotting by taking latitudes and departures. We have nothing in the record to contradict his evidence that it was possible to test the correctness of his plotting by taking latitudes and departures, and it is, in my opinion, quite impossible to reject his map on the ground urged before us on behalf of the plaintiff.

The next attack upon his map was this, that the position of the trijunctions W and I, as found by him, did not agree with their position in the revenue-survey map. The argument was founded on his evidence that in the revenue-survey map, the red line (the chainline) and the black line (the boundary line) run together in one identical line for about 80 feet whereas in his own map, the chain-line between W and I nowhere touches the boundary line between these points. His explanation is that station I has not been correctly shown in the revenue map, Ex. H, with reference to the survey figures and that he put the station I in his map according to the revenue figures. In my opinion, the explanation is one which is probable and ought to be accepted. It must not be assumed that Mr. Davies is throwing any doubt on the accuracy of the revenue map. The figure are given in the revenue map, and from those figures it is possible to relay the station with accuracy. His whole point is that station I has not been correctly shown in the map although all the data are given in the revenue map which would enable one to show the station correctly.

The next contention is that "pillar G at station 12 does not coincide with the position found by him for the corresponding point, although G is accepted to be in its correct position." I have quoted the contention verbatim and all that I need say is that, in the form in which it is put, it is somewhat difficult to understand the argument. What is meant to be implied in the argument is probably this that his ff is not in the same position as station 12 of the commissioner. It will be remembered that the commissioner''s station 12 is supposed to be the trijunction point of Dabari, Ghanuadih and Bera. The station G of Mr. Davies is also the trijunction point of Dobari, Ghanuadih and Bera. One has only to look at Mr. Davies'' map to see that station 12 and O are very nearly in the same place, though not exactly in the same place. Now the commissioner ascertained the trijunction point without taking the trouble to test its accuracy. Mr. Davies, on the other hand, checked the accuracy of his work at every step. The argument has no effect whatever on the case, except to show that Mr. Davies proceeded with care whereas the commissioner was satisfied with the pillar which he had found at station 12.

The last contention is that the distance between G and 9A in Mr. Davies'' map is 3,105 feet whereas the distance between the corresponding points in the revenue-survey map is 3,130 feet. Now it is remarkable that the point was never put to Mr. Davies who should have been asked to explain the discrepancy, if he could. The commissioner, however, stated that the length between his 9 and 12 agreed with the length between the corresponding stations in the revenue surrey map. According to the commissioner, therefore, the distance between the two stations in the revenue-survey map is 3,130 feet. In my opinion, it would not be safe to act upon a casual statement made by the commissioner in the witness-box, since it was important for him to establish the accuracy of his station 9. He does not say so in his report; and if it were the case of the plaintiff that there was such a glaring error in the map prepared by Mr. Davies, the point should have been put specifically to Mr. Davies. On an anxious consideration of all the arguments that have been advanced to us, I have come to the conclusion that the evidence given and the map prepared by Mr. Davies should be accepted and that, in accordance therewith, we ought to hold that the whole of the disputed land falls outside of Dobari and therefore of the block of land demised by the Raja to the plaintiff.

In view of this finding, it is unnecessary to enter into the question of limitation, but I ought to state that I have grave doubts whether the decision of the learned Subordinate Judge on this point is correct. The plea of limitation assumes that the title is in the plaintiff, and, in my opinion, a person cannot, by using or working one portion of a coal-mine, acquire a right to any other portion of it. I think this proposition is established by the decision in Ashton v. Stock [1887] 6 Ch. D. 719 and Thompson v. Hickman [1907] L.R. 1 Ch. D. 550. Mr. Hasan Imam contends that the rule is different for one who has acted bona fide and under colour of title. I have an impression that where a trespasser acts under a bona fide belief that he has a title to the coal, all that he is entitled to claim is that, in assessing damages, the Court should not act harshly towards him and that he ought to be allowed the expense of severing the coal as well as bringing it to bank. I do not, however, decide this point, as, in my opinion, our decision on the merits should be in favour of the defendant and against the plaintiff.

I would dismiss this appeal with costs.

Macpherson, J.

I entirely agree.