1. This appeal arises out of a suit instituted by the Zamindar of Sivaganga for obtaining a modification of the boundary line marked by the survey authorities between two villages in the zamindary, namely, Kallvayal and Iluppakudi. The plaint also contained a prayer for possession to the extent to which the defendants might be found to be in possession of portions of the plot marked 'I' in the sketch attached to the plaint.
2. Kalluvayal is to the south-east of Iluppakudi and continues to be an Ayan village of the zamindary. Iluppakudi had long ago been granted in inam to a temple and the defendants are the trustees of that temple for the time being. The Sivaganga estate was in the possession of certain European lessees for a period of nearly 30 years up to 1918 and during that period, it appears from Exs. B and C, that the Ayan village of Kalluvayal had been leased by the European lessees to one C.V. Section T. Narayanan Chetti for a period of 19 years (Paslis 1299 to 1317) and to one A. E, L. N. Lakshmanan Chetti for the subsequent period of ten years (Faslis 1318 to 1327). For some years after the expiration of the lease in favour of the European lessees, the Court of Wards continued to remain in management of the Sivaganga estate; and during their management, steps were taken to have a survey of the zamindari made. In the course of that, survey, the suit locality appears to have been surveyed during 1922-23. At the out-set, the surveyors included the whole disputed locality of more than 400 acres within the limits of Kalluvayal village, marking the whole extent as 'waste.' On a land complaint made by the trustees, in accordance with the provisions of the Madras Survey and Boundaries Act, the Survey Officer passed the decision, Ex. N, modifying the original demarcation in a manner to which we shall presently refer. Against this decision, the parties appealed to the Appellate Survey Officer and the Appellate Survey Officer by his order, Ex. 7, made a further modification as a result whereof the southern portion of the disputed locality measuring about 177 acres was allotted to Kalluvayal, while the northern portion measuring about 233 acres was included within the limits of Iluppakkudi.
3. Under Section 13, Survey and Boundaries Act, 1923, this demarcation becomes conclusive subject to the result of a civil suit to be instituted within three years. The trustees of the temple did not institute any such suit but the zamindar instituted the present suit to have the Appellate Survey Officer's decision modified so far as it was against him. The learned Subordinate Judge has passed a decree substantially in the plaintiff's favour, excluding only a small portion in the north-west corner of the disputed area. Against this decision, the defendants have filed this appeal. It will be convenient to refer to the accompanying rough sketch (adapted from the Commissioner's plan, Ex. L), in stating the points in dispute between the parties and the decisions reached by the various authorities who have had to deal with this matter at different stages. The disputed area of about 410 acres is shown in the sketch by the diagram A-1, C, E, G-1, J, K, L, M, N, Q, S, T, V, W, X, Y, Z. The whole of this block was, in the first instance, included in Kalluvayal village. Under Ex. N, the block A, C, E, G, J, K, L, M, N, W, X, Y, Z, was assigned to Kalluvayal and the rest of the block to the west of the line N W was included in Illupakkudi. The Appellate Survey Officer cut the whole area into two by a straight line drawn from G-l and H westward to Q and assigned the area to the north of this line to Illupakkudi and the area to the south to Kalluvayal. The area to the north of the line G-1, H, Q, is accordingly the subject-matter of the present suit. The learned Subordinate Judge has assigned the whole of this area to Kalluvayal except the triangular bit to the north of a line connecting V with S-1.
4. The dispute has to be determined mainly with reference to the description given in certain ancient documents of the boundaries of these two villages and of one or two adjoining villages. As usual in this class of cases, some oral evidence has been adduced on both sides to help to locate on the land some of the marks referred to in these boundary descriptions. The learned Subordinate Judge has rightly observed that: the oral evidence on either side cannot be said to be satisfactory; and it can be of use only in so far as it can be related with some confidence to the documentary evidence in the case. Many of the witnesses examined on the plaintiff's side are the cultivators of Kalluvayal village while those examined on the defendants' side are cultivators of Iluppakudi. Each set of witnesses are naturally likely to support their landlord; their position in life and the extent of their knowledge are not such as to enable the Court to accept their statements with confidence. It appears from the evidence of even some of the plaintiff's witnesses that till recently some of them have been cultivating portions of the disputed locality under the Iluppakudi devasthanam and paying rent to the devasthanam but that; latterly they have ceased to do so. Their tenure under the devasthanam is sought to be explained away on the ground that the devasthanam was in possession of alluvayal under the lease evidenced by Ex. C and it is argued that the cultivation of the disputed locality under the devasthanam does not lead to any inference that the disputed locality forms part of Iluppakkudi and not of Kalluvayal. We shall deal with this question in due course. But it is clear that even, after the expiry of the lease under Ex. C, the cultivated portions in the disputed area, coloured green in the commissioner's plan Ex. 1 have continued to be cultivated under the devasthanam and that some of the ryots now coming as witnesses on the plaintiff's side have, for some reason, ceased to cultivate under the devasthanam. This circumstance has to be borne in mind in determining the weight due to the oral evidence given by the ryots examined on the plaintiff's side.
5. The principal documents bearing on the question of boundaries are Exs. A, 8 and D. Ex. 9 purports to be a certified copy of a. document in the Collector's office corresponding to Ex. A which is produced from the zamindari records. We do not think it necessary to consider which is the better evidence as between these two documents; it is probably safer to adopt the course pursued by the lower Court and read the two documents together, especially as Ex. A is, in some places, not easy to read. Two other documents referred to in the lower Court's judgment in this connexion, namely Exs. B and C are not of much help because they do not give the boundary of Kalluvayal with any greater detail than Exs. A and 9. Two sets of documents, namely Exs. E and E-1 and M and M-1 have been strongly relied on by the plaintiff as helping to locate two of the spots referred to in the boundary account. On the other hand, the Devasthanam has relied on two documents Exs. 12 and 12-a, as going to show that portions of the land which will clearly fall outside the boundary limits of Iluppakkudi as demarcated by the lower Court, have long been in the enjoyment of the Devasthanam and have been cultivated by its ryots. All these material documents formed part of the evidence before the survey authorities as well; and yet it happened that the three tribunals who have had to deal with this question came to three different conclusions. This circumstance has been relied on by the learned Counsel for the appellant as showing that the documentary evidence is at best inconclusive; and he accordingly pressed on us an argument as to the burden of proof in the case.
6. With reference to the terms of Section 13, Survey and Boundaries Act, it was contended that the plaintiff in a suit like the present could not succeed unless he established that the demarcation by the appellate survey officer was clearly wrong. The observations of their Lordships of the Judicial Committee in Rajah SLeelanand Singh v. Rajah Mohendra Narain Singh (1869) 13 M.I.A. 57, lend support to this contention (see also the observations in Mohammad Ali Mohammad Khan v. Mt. Bismillah Begum in respect of suits under Order 21, Rule 63, Civil P.C., where similar language is used.) On the other hand, the learned Counsel for the respondent called in aid the line of authorities which lay down that in boundary disputes, undue stress ought not to be laid upon the accident of one person rather than the other figuring as the plaintiff and that both parties must be regarded as plaintiffs. He also relied on the cases which lay down that an Appellate Court ought not to set aside the decision of the Court of first instance unless it is satisfied that it is clearly wrong and particularly in boundary cases it is not sufficient for an appellant merely to pick holes in the lower Court's judgment. In answer to the first of the above contentions of the respondent, the learned Counsel for the appellant, referred to the observations in Manindra Chandra v. Saradindu , drawing a distinction between cases where the defendant is in possession and cases where the land in dispute is unoccupied or incapable of an effective occupation. We do not think it necessary to discuss the question of burden of proof at any length. It cannot be said that the lower Court fell into any error as regards the burden of proof, because in para. 38 of his judgment, the learned Subordinate Judge stated the position correctly when he observed that
the plaintiff having come to Court challenging the order of the survey officer must prove by satisfactory evidence, the location of the Kottakarai stone. Inability to prove it owing to lapse of time is no ground for upholding his contention on no reliable evidence.
7. But though the proposition is stated correctly enough, we are obliged to say that the learned Judge has not properly applied it in the case or at any rate he has not clearly appreciated the grounds of decision given by the two survey officers and displaced those grounds effectively. In this view, we proceed to deal with the merits of the case, taking it that the burden of proof; is on the plaintiff. (After stating the facts in the case, his Lordship proceeded.) It was argued on behalf of the respondents that the defendants could not seriously rely upon their alleged enjoyment because they had not produced their accounts showing the receipt of income by the temple from these lands. We are unable to appreciate this argument. Some of these accounts were filed before the first survey officer and marked as Exs. O and P series. They were for some reason not produced before the Subordinate Judge's Court in time; when an attempt was made to produce them they were rejected by the learned Judge as having been produced too late. We do not wish to say: anything against the learned Judge's exercise, of discretion in dealing with this attempt of the defendants to produce their documents. But the penalty for this conduct is in our opinion only to deprive the defendants of the benefit of the evidence afforded thereby. It does not however lie in the mouth of the plaintiff, who, as the learned Judge says, strongly opposed their production, to contend that an adverse inference ought to be drawn against the defendants from the non-production of these documents. It seems to us unnecessary to pursue this matter, because it is not the plaintiff's case that these lands have remained uncultivated or that the plaintiff's estate has received the income from these lands. At the outset of the survey, the plaintiff, oddly enough, ,got the whole extent of the disputed land registered as waste when admittedly considerable portions of it had been under cultivation for at least 50 years, if not more. As stated already, the first survey officer and the commissioner who inspected these lands referred to their having been under cultivation. Many of the plaintiff's witnesses also admit their cultivation and though they attempted to post-date the commencement of cultivation, it is clear from their admission that they must have come into cultivation at least 50 or 60 years before the date when they were giving their evidence. In these circumstances, the non-production of the defendants' accounts seems to us a matter of little consequence. The defendants wish to carry the matter further and rely upon Ex. 12 and Ex. 12-(a) to show that as early as 1841 and 1867 their ryots were cultivating some of the lands in question. The admissibility of these two documents has been, challenged and it is best to deal with that question also in this connexion.
8. Exhibit 12 (whose translation in the printed record is wholly erroneous and misleading) purports to be a copy of an order issued by the Collector of Madura to the Amin of the Amaravathi taluk in Sivaganga in August 1841. It refers to a dispute raised by the people of Iluppakkudi to water being stored in the Kalluvayal Kanmoi beyond a certain limit, Iluppakkudi people alleging that if more water is stored it will submerge the lands in the Ulvoi which were being cultivated by them. It also refers to a complaint by the Kalluvayal people against the Iluppakkudi people in respect of the same matter, the Kalluvayal people insisting that they were entitled to retain water in the Kalluvayal Kanmoi as per mamool. The Collector then expressed his opinion that as per practice of the locality, persons who cultivate lands in the waterspread of a tank must content themselves with cultivating those lands only when there is no water in the tank and that they have no right to object to people of the other village retaining water in the tank, to the extent authorized by mamool. This document, if admissible in evidence, clearly establishes that Iluppakkudi and Kalluvayal could not have been under the enjoyment or management of one and the same person at that time and that there were disputes between the two sets of villagers arising out of the cultivation of lands in the waterspread of the Kalluvayal kanmoi by the Iluppakkudi ryots. The document was produced before the survey officer and treated by him as evidence, but as pointed out by the learned Subordinate Judge, he obviously did not understand its significance or import. Before the Subordinate Judge, objection was taken to its admissibility on the ground that it was only a copy of a copy and this objection was based upon the description contained in the document itself. It must be said that in overruling this objection, the learned Subordinate Judge has not stated his reasons very satisfactorily. The mere fact of the production before the survey officer will not remove the objection, if otherwise the objection was well founded. But we think that the objection must be overruled on other grounds.
9. The description of the document as a copy of a copy must be understood in the light of the context and with reference to the system of official correspondence prevailing in those days. The document itself shows that the copy was given from out of a book maintained in the Collector's office containing the copies of the communications sent by the Collector to various subordinate officers. It has been explained in several cases in this Court that that was the official practice in those days. Taking notice of that practice, it has been held in this Court that the book of copies thus maintained in the Collector's office is itself an official register within the meaning of Section 35 and a public document within the meaning of Section 74, Evidence Act. On this basis, the copy now produced is a certified copy of a document relevant under Section 35, Evidence Act, and is clearly admissible. (See the judgment in A. S. No. 261 of 1925 following the observations of the Privy Council in Raja Venkata Rao v. The Court of Wards (1875) 2 Mad. 128 and of this Court in Navaneetha Krishna Teva v. Ramasami Pandi Thalavar A.I.R. (1918) Mad. 889.) Exhibit 12-a is a copy of an order issued by Mr. Fischer in July 1867 to the Tahsil, dar of Kandadevi, one of the subdivisions of the Sivaganga estate. This document also has not been properly translated in the printed record. As stated in the opening paragraph of the document, Mr. Fischer was the manager of the Sivaganga estate at that time. The document refers to the petitions received in the head office and to the enquiries made by the manager in connexion with that dispute. There were two matters in dispute at the time, one relating to the alleged interference by the Iluppakfcudi ryots with water flowing through a channel from the Pudu Kanmoi to the Kalluvayal Kanmoi and the other relating to the cultivation of lands in the Ulvoi of Kalluvayal Kanmoi by the Iluppakkudi ryots. As regards the channel, Mr. Fischer directed that as it was a mamool source of supplying to the Kalluvayal tank, it should not be permitted to be interfered with by the Iluppakkudi people. But as regards the cultivation of the Ulvoi lands, Mr. Fischer referred to the Collector's order of 1841 (Ex. 12) and upheld the claim of the Huppakkudi people to cultivate them. He also directed that the Sivaganga estate should not collect any assessment from the Iluppakkudi people in respect of such cultivation. With reference to this document, an objection has been urged on the strength of the decision of the Judicial Committe in Basant singh v. Brij Raj Saran Singh to the effect that the presumption under Section 90, Evidence Act can be drawn only when the original is produced before the Court and not when only a copy is produced. Ex. 12-a is no doubt a copy but it not merely declares itself to be a true copy but contains the signature of Mr. Fischer to the copy. This circumstance, is, in our opinion, an important distinction to be borne in mind in this connexion. Their Lordships recognized that a copy purporting to be more than thirty years old and produced from proper custody might be presumed to be a copy satisfying the requirements of the Evidence Act as to secondary evidence, when that very copy contains a statement that it is a true copy. The presumption as to the due execution of the original can, in a case like the present be drawn from the circumstance that Mr. Fischer, who according to the tenor of the document, is the gentleman, who issued She order, also appears to have signed the copy. The learned Counsel for the respondent does not wish it to be understood that he admitted Mr. Fischer's signature on the copy, but we have no difficulty in reading Mr. Fischer's signature on the document and under Section 90 we are certainly entitled to presume the genuineness of the signature on the copy. We may in this connexion refer to a similar case where their Lordships of the Privy Council admitted a copy in evidence : see Seethayya v. Subramanya somayajulu A.I.R. (1929) P.C. 115. The relevant facts are more fully reported in the judgment of this Court in Subrahmanya Somayajulu v. Seethayya A.I.R. (1923) Mad. 1. It cannot of course be said that Mr. Fischer was a predecessor-in-title of the plaintiff so as to bind the plaintiff by his admission, but the document is clearly admissible on the principle explained by the Court of Appeal in Blandy Jenkins v. Earl of Durravan (1899) 2 Ch. 121, namely that it evidences an assertion of right by the Iluppakkudi ryots to cultivate the lands in the Ulvoi of the Kalluvayal kanmoi without any liability to pay therefor to the zamindari. These two documents clearly establish that long before any question of a lease of Kalluvayal village to the Iluppakkudi devasthanam arose, the devasthanam through its ryots, had been cultivating some of the lands in the waterspread of Kalluvayal kanmoi and that the zamindari recognized the right of the Iluppakkuddi ryots to do so free of any liability to pay cist to the zamindari. We may also point out that if Ex. 12-a, is admissible in evidence, its contents clearly negative the explanation that the document may refer to the lands lying west of the line Z.Y; because that document refers to the lands lying on both sides of the southernmost of the channels flowing from Pudu kanmoi to Kalluvayal kanmoi. It is clear from Ex. 1 as well as from the oral evidence that this description refers only to the channel which enters the Kalluvayal kanmoi between E and F. Even if for any reason it should be held that Ex. 12-a is not admissible in evidence, Ex. 12 itself is sufficient to establish the custom of the Iluppakkudi ryots to cultivate the Ulvoi lands of the Kalluvayal kanmoi.
10. Taking the whole body of evidence bearing upon this point, we have no doubt that lands in this locality comprised in the area shaded green in Ex. 1 have for a long time been cultivated by the Iluppakkudi ryots on the strength of an assertion that they constituted part of Iluppakkudi and that this enjoyment had nothing whatever to do with any lease of the Kalluvayal village (itself in favour of the Devasthanam. This course of enjoyment is, in our opinion, strong evidence in favour of the title being in the Devasthanam, because it has always been recognized that ancient enjoyment is good evidence of title even when there is a grant to construe, if the terms of the grant are not clear. In this case, we do not even have the document of grant but merely a boundary description account and from what we have already stated, it is obvious that the boundary description is anything but clear and definite.
11. We may here refer to one other set of documents relied on by the defendants which if admissible, will be very strong evidence in support of the defendants' case. Exs. 1, 1-a, 4, 5 and 6 are a group of documents relating to plots adjacent to the pond marked Neeranikuttai, just to the west of the point marked J-l in Ex. L. The bearing of these documents on the present controversy is that in all of them the property dealt with is described as situate in Iluppakkudi. If they are admissible, they will cearly show that Iluppakkudi limits extended even further south of the line fixed by the appellate survey officer. The learned Subordinate Judge has rejected these documents as irrelevant. Mr. Eajah Ayyar has strongly contested this view of the lower Court. He maintained that they must be held to be admissible under Sections 11 and 13, Evidence Act. The decisions referred to in para. 613 of Taylor on Evidence would support the view that they may be admissible even under Clause 4 of Section 32, Evidence Act, as statements relating to a matter of public or general interest, namely village boundaries. But in view of the observations of their Lordships of the Judicial Committee in Subramanya Somayajulu v. Sethayya A.I.R. (1923) Mad. 1 as to the scope of this clause, we do not feel ourselves at liberty to follow the English cases. Mr. Rajah Aiyar contended that the documents may fall under Clause 3 of Section 32. We are unable to accede to this contention. As regards Section 11, it seems to us that Section 11 must be read subject to the other provisions of the Act and that a statement not satisfying the conditions laid down in Section 32 cannot be admitted merely on the ground that, if admitted, it may probabilize or improbabilize a fact in issue or a relevant fact.
12. As regards Section 13 we are of opinion that these documents will be admissible only as transactions, that is, in so far as they evidence an assertion or recognition or denial of the right claimed therein. The description that the plot dealt with is situate in a particular village does not seem to us part of what is made admissible under Section 13. The position might be different if the right to deal with the plot necessarily depended upon the existence of that plot within the village, in which case it may be said that the description as to the existence in a particular place is also part of the right asserted. It does not appear to us in this case that the transactions evidenced by Exs. 1, 1a, 4, 5 and 6 are so necessarily connected with the situation of the plots in question in Iluppakkudi village that this description also must be taken to be part of the right asserted. Cases like Dwarkanath Bakshi v. Mukundulal chowdhury (1907) 5 C.L.J. 55 are clearly distinguishable on the ground that the transaction itself involved the assertion which was held to be relevant in the particular case. We do not therefore see sufficient reason for differing from the learned Judge's view that this group of documents is not admissible in evidence. There can however be little doubt that the defendant must have felt justified by the existence of these documents, by the existence of the boundary stones fixed by Mr. Gompertz and by the course of their long enjoyment, in con-tending that the limits of Iluppakkudi village extended even south of the line HQ. But in view of the course that the proceedings have taken, it has now become unnecessary to deal with the area to the south of the line HQ. We must observe in this connexion that the learned Subordinate Judge has laid undue stress upon the omission of the defendants to file a suit within three years of the appellate survey award. We do not wish to go to the length of saying that their conduct is relevant. But in dealing with a question beset with so much uncertainty, we do not think that this omission deserves all the stress that the learned Judge has laid upon it, as suggesting an interference that their case as to the boundary line between the two villages cannot be true. On the other hand, the circumstance that nearly the whole cultivated area lies to the north of the line HQ might well explain why the defendants preferred to remain content with the survey officer's award.
13. Mr. Rajah Iyer laid some stress on the disparity between the area mentioned in Exs. B and C as the area of Kalluvayal village and the area now claimed. He pointed out that the disputed area alone is more than 400 acres and that this is now claimed in addition to the undisputed portion of Kalluvayal, whereas in Exs. B and C the 4otal area of the village is given at a native measurement which on conversion will come only to an aggregate of 200 acres. Such a large disparity is no doubt striking; but it cannot be denied that the area in Exs. B and C was in all probability inserted on a kind of rough estimate. Further Exs. B and C refer only to the nanja and punja lands. We cannot assume that the extent there given comprises the whole area of the village. He next drew our attention to the fact that the demarcation made by the learned Subordinate Judge divides the Seethevi kanmoi in the north between the two villages, when the plaintiff never seems '4o have claimed any part of that Kanmoi as his own. We do not find any reference to this kanmoi in the course of the proceedings either before the lower Court or before the survey officers and we are, therefore, unable to say whether or not this demarcation is opposed to the plaintiff's case. Lastly, he repeated the arguments urged before the lower Court as to the effect of its demarcation upon the quarters said to be occupied by the Valayas and the Adi Dravidas of Iluppakkudi and the burial grounds used by them. We are not in a position to say that these considerations carry the defendants' case very far or that the learned Judge has lost sight of them. It is on the broader grounds already referred to that we are obliged to differ from the decision of the lower Court and hold that the judgment of the lower Court does not disclose proper grounds for setting aside the decision of the appellate survey officer, Ex. 7.
14. In the above view, it is unnecessary to deal with the questions of estoppel and prescription raised by issues 3 and 4. We may however add that if we had to deal with them, we would have had some difficulty in concurring in the learned Judge's treatment of them in paras. 51 and 52; because his judgment proceeds on the assumption that the Devasthanam came into possession of the lands in the disputed locality only under a lease from the zamindar.
15. It was brought to our notice that the. plaintiff has not paid proper court-fee in the lower Court and we were asked to give the necessary direction under Section 10, Court-fees Act, but as we are allowing this appeal and dismissing the plaintiff's suit, there is no opportunity for us to give the kind of direction contemplated by Section 10, Clause 2, Court, fees Act. We may add that if we were in a position to do so, the inclination of our opinion would have been certainly in favour of the view that court-fee should have been paid under Clause (v) of Section 7, Court-fees Act and not under Section 7(iv)(c) amended by the Madras Act. See the observations in Kalu Ram v. Banu Lal and Venkatasiva Rao v. satyanarayanamurthi . to the effect that Section 7(iv)(c) should not be applied to cases falling under Section 7, Clause (v). In the result, the appeal is allowed and the suit dismissed with costs both here and in the Court below.