Norman Macleod, Kt., C.J.
1. The plaintiff brought this suit for a declaration that the ground on which the stable described in the plaint stood belonged exclusively to the plaintiff: that the ground under the drain described in the plaint belonged to the plaintiff: that the plaintiff had a right to remove the drain after giving proper notice to the defendant; and that in case it was found that any part of the ground under the drain was joint, an injunction might be granted against the defendant restraining him from obstructing the plaintiff while doing any work on the ground beyond that point and for further and other relief.
2. The plaintiff and the defendant are the owners of adjoining properties in the City of Poona, and the dispute has arisen with regard to the stable and the drain mentioned in the plaint. There had been a decision by the Enquiry Officer to the effect that the gutter and the stable were common property. The Enquiry Officer had been appointed by Government apparently under Section 131 of the Bombay Land Revenue Code for the purpose of making a survey of lands in the City of Poona He was invested with all the powers and duties of a Survey Settlement Officer in charge of a survey, for the purposes of the survey of the lands other than those used ordinarily for the purposes of agriculture only, within the site of the City of Poona.
3. The trial Judge has decided that the decision of the Enquiry Officer with respect to the stable and the drain in question had 1 no judicial force, and that he was entitled to decide that point in this suit. Accordingly the learned Judge held that the plaintiff was entitled to a declaration and injunction with respect to the stable alone. The rest of his claim was dismissed.
4. Against that decree the defendant appealed and the plaintiff filed cross-objections. In appeal a preliminary point was taken that the jurisdiction of the Civil Courts to entertain suits of that character against the decision of the Survey Officer was ousted under the provisions of Section 121 of the Bombay Land Revenue Code. The defendant's contention was held good by the learned District Judge, and the suit was accordingly dismissed. At that time the decision of this Court in Bhaga v. Dorabji : (1920)22BOMLR1111 had not been published. That, no doubt, was a case of agricultural land. But the principles with regard to the survey of land in a town are just the same, and even stricter ten they would be in the case 6f~Bgr1oultural lands. It would be the duty of the Enquiry Officer to settle the boundary between the lands of adjoining house-owners, which would ordinarily be by meaus of a line drawn on a plan, and that line, according to the prove one of Section 121 of the Bombay Land Revenue Code, would be determinative of the rights of the land-holders on either side of the boundary so fixed. But it would not be determinative of any rights which the holder of one number could claim to exercise over the land belonging to the holder of the adjoining number, and I do not think the section can give jurisdiction to the Enquiry Officer to decide, as he has done, that a broad strip of land lying between the two numbers was common to both the adjoining owners. I do not gather from his decision that he had fix ad that broad line measuring nine feet at one end and five feet at the other as the boundary line according to the survey. I should prefer to read his directions as showing, if anything, that the boundary line of house No. 174 was on the west Bide of the common land and the boundary of house No. 175 was on the east side. But unless that broad strip could be considered as a boundary line, it certainly remains in obscurity where the boundary line between the adjoining houses runs. If, therefore, the Enquiry Officer, held that this strip was the boundary, then 1 think he was exceeding his functions. If he held that the boundary line of house No. 174 was on the east side of the gutter, then he had no jurisdiction to decide what rights the owner of house No. 174 had over the gutter which lay within house No. 175.
5. It seems to me, therefore, that the decision of the learned District Judge was wrong. The decree of the lower appellate Court must be set aside and the case must go back to that Court to be decided on the merits, that is to say, the Court will decide what are the respective rights of the parties over the disputed land. The appellant must get his costs of the appeal.
6. I agree.