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Abdul Rahman Mahomed Ismail Makbha Vs. the Secretary of State for India - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberFirst Appeal No. 139 of 1925
Judge
Reported inAIR1930Bom125; (1929)31BOMLR1433
AppellantAbdul Rahman Mahomed Ismail Makbha
RespondentThe Secretary of State for India
DispositionAppeal dismissed
Excerpt:
..... 4. when the draft agreement was being considered by the legal remembrancer and the collector and revenue survey superintendent, they came to the conclusion that it was better to have the boundaries marked before the agreement was executed. as the forest survey map was not regarded as so reliable as the old survey map (exhibit 14) a copy of the latter was utilised, by the revenue survey officials to annex to the grant (see the correspondence exhibits 54 and 55). 5. very soon afterwards doubts were expressed as to the accuracy of the plan annexed to the conveyance (in exhibits 56 and 57) and was ultimately found that the map was inaccurate. 1 between the green and broken yellow lines on exhibit 59a admeasuring more than sixtv acres as well as of five other small plots. the boundary..........marks all along the southern of line cdqefghi, as i have said these tally with the revision survey boundaries and that revision survey had been completed when the grant of february 1, 1890, was executed. the mistake appears to have arisen through survey no. 81 being incorrectly marked on the map and being taken as the point from which the boundary lines of the allotted area were marked out by measurements from a corner of that number. such boundary lines were also, therefore, incorrectly placed on the map. now, when the 'correct position of plot no. 81 is shown, the map as a picture or representation of external objects with their relative position is wholly incorrect if of two adjoining objects on it one is laid down incorrectly. to quote the words of lord westbury in lyle v......
Judgment:

Norman Kemp, Kt., A.C.J.

1. Thia is a Ruit for possession of six plots of forest at Ransai amounting in all to seventy-one acres, The plots are shown in the plan marked Exhibit 18A. The plaintiff was ousted of the possession of them by virtue of a correction of the boundaries, alleged to have been fixed to the east, of the 946 acres 34 gunthas granted to him by Government under circumstances which I will proceed to narrate. The learned Judge of the trial Court dismissed the suit. From his order the present appeal has been preferred.

2. In 1832 the whole village was granted in 'Inam' to the plaintiff's grandfather. Under this grant he had Khoti rights over the whole village and absolute 'Inam' rights (full proprietary rights) over unoccupied waste land. In 1860 when the survey was introduced, 2840 acres odd were formed into one Parigh No. 100. In 1878 the Indian Forest Act was introduced and on October 10, 1883, Government notified the whole Parigh No. 100 as protected forest. On December 24, 1883, the plaintiff's grandfather protested and ultimately an agreement was arrived at between him and Government in 1890. By this 1000 acres were conveyed to the plaintiff's father with full proprietary rights and he abandoned his claim to the rest of the Parigh Survey Number. Apart from certain conditions regarding a plot for a fuel depot and a village site where there were huts with which we are not concerned, the agreement was for three survey numbers amounting in all to 1,000 acres more or less. The three survey numbers were: (1) 2 acres 16 gunthas, (2), 50 acres and 30 gunthas, and (3) 946 acres 34 gunthas. The dispute really relates to plot No. 3.

3. The agreement sets out the boundaries and we are concerned here only with the eastern boundary. The deed of agreement, as it is called, dated February 1, 1890, between the Secretary of State and the plaintiff's father, describes the boundaries of Survey No. 3, so far as the eastern boundary is concerned, as 'by the boundary marks erected by the Revenue Survey Department so as to include the aforesaid area of 946 acres 34 gunthas (which said portions of land hereby granted are particularly delineated in the plan thereof hereunto annexed, signed by the Collector of Kolaba and therein coloured yellow),' The eastern boundary was, therefore, under the deed marked by the boundary marks erected by the Revenue Survey Department, But the total area enclosed by the boundaries was not to exceed 946 acres 34 gunthas, At the time when the Revenue Survey Dspartment demarcated the eastern boundary a revised survey was in progress in the village and had been completed but was not brought into effect till some time later. The boundary marks are. said, by one of the joint surveyors appointed by the Court, Trimbak, to have been visible on the line shown in the revision survey map and not at the points shown on Exhibit 14 the map annexed to the deed. A line of these cairns is said to be the correct boundary according to the revised survey. But at the date of the agreement there were only two survey maps available for annexing to the conveyance, viz., (1) the old revenue survey map and (2) the forest survey map.

4. When the draft agreement was being considered by the Legal Remembrancer and the Collector and Revenue Survey Superintendent, they came to the conclusion that it was better to have the boundaries marked before the agreement was executed. As the Forest Survey map was not regarded as so reliable as the old survey map (Exhibit 14) a copy of the latter was utilised, by the Revenue survey officials to annex to the grant (see the correspondence Exhibits 54 and 55).

5. Very soon afterwards doubts were expressed as to the accuracy of the plan annexed to the conveyance (in Exhibits 56 and 57) and was ultimately found that the map was inaccurate. The plaintiff' was dispossessed by the Collector of plot No. 1 between the green and broken yellow lines on Exhibit 59A admeasuring more than sixtv acres as well as of five other small plots. This was in 1913. The total area of these six plots admeasures seventy-one acres but we may confine our attention to plot No. 1. Plaintiff filed his suit on October 24, 1922. Apart from the question how far the map annexed to the grant is conclusive between the parties we have to consider whether the boundaries were actually demarcated by the revenue survey on the land and whether the map correctly shows those boundaries or not. The boundary alleged by Government as well as the boundary shown on the plan to the grant each encloses an area which does not exceed the area mentioned in the conveyance. It is in evidence that the Khot has encroached on the land beyond what he states to be his.

6. Another clause of the grant requires mention. It is Clause 6 which runs as follows:-

That all boundaries under this agreement shall be (surveyed and marked out by the Government Revenue Survey Department and the boundary marks shall be erected by or by the authority of the Superintendent of Survey at the expense of the Khot and that such boundary marks shall at all times be kept in good and proper repair by the said Khot.

7. Clause 6 is part of the agreement but it appears from the correspondence in the case that the boundary had been marked out by the Revenue Survey Department prior to the execution of the agreement.

8. This appears from the correspondence over the draft agreement in the beginning of 1898 where the Remembrancer of Legal Affairs suggested it might perhaps be well if the boundaries could be marked out before execution of the deed and in August 1888 the Settlement Officer reported (Exhibit 51) that 946 acres 34 gunthas had been measured out of Survey No. 100 and boundary marks put up (see also Exhibits 52 and 53 B). Thereafter the Remembrancer of Legal Affairs wrote to the Collector on December 14, 1888, suggesting that the words 'to be' marked out should be omitted from the draft. As the revision survey settlement had not been actually introduced by that time, it was deemed more proper to attach a map of the old survey rather than that of the revision survey. The learned trial Judge explains why on October 14, 1889, the Superintendent of Survey suggested boundary marks were to be put up in the field. That is because he was not the Superintendent who erected the boundary marks but his successor. Moreover, on November 25, 1888, the forest and revenue surveyors inspected the boundary marks for the purpose of making a conjoint survey and the oral evidence of the Government Surveyor (Exhibit 70) who examined the boundary marks on the spot in connection with the present proceeding states that they are now extant and correspond with the marks on the revision survey map. Moreover it is admitted in paragraph 3 of the plaint that the Eevenue Survey Department were at the time engaged in making a revision survey of the whole village and were erecting boundary marks consisting of stone cairns. I see no reason why this evidence should not be accepted and the map annexed to the grant being proved to be inaccurate I agree with the learned Judge that the map must be treated as a mere falsa demonstratio.

9. Now no doubt a map annexed to a deed is part of the contract and as a rule must be used as evidence of the parcels. But an inaccurate map does not affect or vitiate a clear description of the parcels although under certain circumstances a map or a survey may override a description of parcels (see Halsbury's Laws of England, Vol. Ill, p. 147, para. 800). But here the boundary marked out on the land by cairns of stones placed by the revenue survey was to be the line to demarcate the boundary provided it did not allow the plaintiff more than the area of 946 acres 34 gunthas and it is not I think that the boundary is delineated in a plan which is to be conclusive as to its situation but that the plan purports to show the boundary marks laid down by the revenue survey. The boundary marks laid down are the description of the parcels. The map, if inaccurate, is therefore a falsa demonstratio.

10. The error appears to have arisen through the inaccurate position on the map of plot 81. Measurements were taken from the north-east corner of that plot in order to fix the point 'P' on the map (Exhibit 69 A), That point was proportionately marked on the map a little above the place where it ought to be for the purpose of area as the position of Survey No. 81 was really a little lower down in its real position which is shown in the revision survey map than the position in the original survey map. The point 'P' was found on the ground by Mr. Damle, forest surveyor. Plot No. 1 and old number 28 lay on the border of new inam land and reserved forest in contact with the lormer and not actually surrounded by the latter thereby fixing the point 'B'. The point 'C' is not in dispute. When in 1909 the doubt was reopened the Khot in his statement said that there were revenue boundary marks all along the southern of line CDQEFGHI, As I have said these tally with the revision survey boundaries and that revision survey had been completed when the grant of February 1, 1890, was executed. The mistake appears to have arisen through Survey No. 81 being incorrectly marked on the map and being taken as the point from which the boundary lines of the allotted area were marked out by measurements from a corner of that number. Such boundary lines were also, therefore, incorrectly placed on the map. Now, when the 'correct position of plot No. 81 is shown, the map as a picture or representation of external objects with their relative position is wholly incorrect if of two adjoining objects on it one is laid down incorrectly. To quote the words of Lord Westbury in Lyle v. Richards (1866) 35 L.J.Q. B. 214:-

As soon as the position on a map of one object is proved to be wrong, the whole of the representation of the relative positions of adjoining objects be-comes erroneous, and the map must in this respect be re-drawn according to the facts, which must be ascertained from evidence.

11. Here the map purported to be merely a description of the boundary line already laid down by the Revenue Survey Department.

12. In Lyle v. Richards the description of the parcels in the deed referred to a straight line from V's house to a certain boundstone. The description of the parcels concluded 'which premises are particularly delineated by the map on the back hereof.' A line appeared on the map to be drawn from the north-east corner of V's house. But the map was wrong as to the situation of V's house and, if corrected, the line would run to the south of V's house. It was held that the true boundary Jine was that drawn from the north-east corner of V's house when it was correctly placed. But in that case V's house was specifically described in the parcels as being the place from which the boundary was to run. In the case before us plot No. 81 the boundary of which is conterminous on the E and S with the plaintiff's boundary on the map annexed to the grant is not mentioned in the description of the parcels. So Lyle v. Richards cannot be taken as an authority for saying that the boundary to be found by us should run from the north-east corner of plot No. 81. But the remarks of Lord Westbury in that case are significant.

13. Moreover it is important to note that Clause 15 of the grant provides 'that the measurements, calculations and boundary marks of the Revenue Survey Department shall be conclusive as to any question of area, measurement or boundary that may hereafter arise between the parties to this agreement.' I agree with the trial Judge that the boundary marks laid down prior to the execution of the agreement must be accepted, notwithstanding the inaccurate plan, as the boundary which was laid down for the Khot, I agree, therefore, with the learned trial Judge in his answer to issue No. 3 in the suit. I think the order of the lower Court should be affirmed and the appeal dismissed with costs.

14. Order of lower Court varied by making each party pay his own costs in the lower Court. Appellant to pay costs of the appeal.

Murphy, J.

15. The plaintiff-appellant's grievance is that he has been dispossessed by the Collector of six plots of land making up in all seventy-one acres which he alleged were within the area granted to him in 1890 by Government by Exhibit No. 18.

16. The circumstances of the grant have been narrated in the judgment just delivered by the learned Chief Justice, and I need not recapitulate them.

17. of the six plots of which the plaintiff was dispossessed, two are admittedly wide of the boundaries of the grant as shown, either in the original or the revision survey map and need not further be discussed. They are clearly not his. The next three are also very small plots on the western boundary of the land, and it is not possible to say whether they are within the grant or not, for they appear to be outside the village boundary which, according to the agreement map, is the boundary here. There may possibly have been an adjustment of village boundaries, but the areas are small and this part of the case has neither been insisted upon, nor has the exact position been explained to us, so as to allow of a finding.

18. The real dispute is as to the boundaries of plot No. 1 which comprises more than sixty of the seventy-one acres which, Government say, may have been encroached upon.

19. Though the original agreement Exhibit 18 was carefully drawn up and describes the other boundaries of the three plots given to plaintiff, there was a difficulty in describing the eastern one, which is given,

and for the rest by the boundary marks erected by the Revenue Survey Department so as to include the aforesaid area of P48 acres and 34 gunthaa (which said portions of laud hereby grauted are particularly delineated in the plan thereof hereunto annexed, signed by the Collector of Colaba and therein coloured yellow).

20. The idea I have derived from the papers is that at the date of this agreement of February 1, 1890, the boundary marks referredto had been erected, and the Assistant Settlement Officer in his letter No. B. 30 of 1888 reported that this had been done, see Exhibit 51.

21. It appears that somewhere about this time a revision survey was being carried out in this village. It was apparently finished in 1890, but was not introduced till 1891. The village map used to annex to the agreement was that of Col Francis' survey, and the relevant fact is that the position of survey No. 81 differs in the two surveys.

22. The most convenient map for reference in the record is Exhibit 59A. There is no dispute as to points A and C in this map being correctly shown. Both maps also show survey No. 81 as on the khot's southern boundary and it is admitted, for measurements have again been made, that the correct position of survey No. 81 is as shown in the revision survey map.

23. If this was so when boundary marks were erected, the plaintiff Knot's northern boundary would be on the line CPA and the irregular quadrilateral OPAB which lie now claims is excluded from his grant.

24. But if the boundary marks were erected irrespective of survey No. 81, and according to the agreement map, the Khot's holding would include this plot OPAB, though his southern boundary would be further north, along the line ORTU.

25. It is very hard to see how the mistake can have taken place when the lines were measured and demarcated on the ground; for survey No. 81 is, on either supposition, partly enclosed by the southern boundary of the Khot's land, and the only available explanations are that either the holding was plotted on the old revision survey map without an actual reference to what had been done on the ground; or that the person who plotted it for the purpose of the agreement map, took survey No. be as shown on the old map, instead of as shown on the new one, as one of his starting points and so laid a wrong northern boundary on the agreement map.

26. From the evidence on the record, which is not very full, it appears that the cairns on the ground correspond to the plotting of the Khot's boundary as shown according to the revision survey, which would make his northern boundary the re-entrant angle A PC and a corresponding change on the southern boundary.

27. The general rule quoted by the learned Chief Justice, whose judgment I have had the advantage of perusing, Lyle v. Richards (1866) 35 L.J.Q.B. 241 is that 'as soon as the position on a map of one object is proved to be wrong, the whole of the representation of the relative positions of adjoining objects becomes erroneous, and the map must in this respect be re-drawn according to the facts, which must be ascertained from evidence.'

28. The adjoining objects in this case do not help greatly, for the only fixed points are the boundary marks A and C and the necessary lines cannot be drawn from these. There is, however, the fact that survey No. 81 is shown in the agreement map as being on the plaintiff's southern boundary and the probability that it was so shown because that was its position on the ground; and the further fact that the boundary marks now existing are along the line of the true position of survey No. 81. There is also a clause in the agreement that the parties shall be bound by the areas, measurements and boundaries of the revenue survey, which these marks now define. Any other conclusion would now involve what would amount to a fresh survey and allocation of land.

29. I, therefore, think that we can only be guided by the facts as they really are, and consequently find that the plaintiff's land is as shown in the revision survey number and that the agreement map was mistaken on this point.

30. I agree that the decree must be confirmed and the appeal dismissed. As to costs each party should pay its own costs in the original Court and appellants to pay the costs of the appeal.


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