1. The question in dispute is as to the site of the boundary between the Muzahs Gurkanda and Chhitpara, which be long to the plaintiff, and Lalitabari, which belongs to the defendant, purchased by him in 1905 (1312). The value of the land in question it not much, but the parties who are both rich Zemindars have been quarreling for years past and it is said that the tarrying on of a certain hat is indirectly concerned in the decision. The case has lasted some ten days, the parties being indisposed to settle the matter. The Subordinate Judge has held that the river which forms a boundary between the properties of the two parties has been incorrectly shown in the revenue survey map, at least so far as it passes between the Mouzahs Garkanda and Chhitpara on the one hand and Lalitabari on the Other. A long argument has been addressed to as on the various maps and the other aspects of the case. Whatever value may be attached to some of the points made by the appellant, it must be remembered that this is an appeal, and that whatever might have been the decision in the case at the original hearing, it is for the appellant to clearly establish that the judgment in appeal is wrong.
2. A thakbust was made of these mouzahs in 1855 and a Revenue Survey in 1857. At the survey, the boundary line between there two mouzahs was fixed in the middle of the river, above mentioned, which is called Bhogai and which river separated them. It is stated in the plaint that in the course of time the Bhogai river gradually went west-ward and entered into the plaintiff's two mouzahs and afterwards at the trial, that there was a sudden change in the river on some day in 1885. It is thus alleged that there has been a change in the course of the river from what it was at the time of the survey measurement, with the result that some of the land belonging to the plaintiff has been diluviated and has since reformed on the east bank of the river, either as firm lands or as adherent chars on the east of the present existing river, the center of which was the boundary line and which river now flows in the plaintiff's mouzahs, the exception mentioned being a small is land char, which is stated by the defendant to have been detached from the eastern bank after the survey.
3. The property in dispute is comprised in five schedules. The last including the river is now under attachment of a Criminal Court The plaintiff claims khas possession of the property in schedules Nos. 1, 2, 3 and 4 and establishment of her title to derive profits from the river in Schedule 5. She also claims wasilat in Schedules 1 and 2 from the defendant for three years prior to the institution of the suit till the delivery of possession. As regards the property in Schedule 2 which includes the hat itself, it is admitted in appeal that this cannot be recovered since the suit in this respect is barred by adverse possession.
4. The defendant claims the lands in Schedules 1 to 4 as appertaining to his Mouzah Lalitabari. He tried to assert the exclusive right to be the owner of that mouzah and to the river with both of its banks. He denies that any land has been curtailed from the plaintiff's land as alleged. He originally claimed both tire land and water in suit as his own and says that both the thak and the survey maps are erroneous. This claim is, however, new abandoned, so far as regards the river in respect of which the defendant claims up to the middle line of its course, and the appeal has been argued on the footing that the boundary line between the plaintiff's and defendant's property is the middle line of the river Bhogai as the river was at the time of the survey in 1857.
5. For the plaintiff it is alleged that the survey map was correct and that the river has changed its position. What the defendant says is that the survey map is incorrect and that the river has not changed. The main issue then is whether the survey map is correct or not and whether the river has changed.
6. The plaintiff acquired her land in 1841 and shortly after, she established a new bazar opposite the defendant's hat at Lalitabari and then disputes commenced. The defendant's hat is mentioned as being in existence in 1795, having originated in 1783. In 1841 there were criminal proceedings against the defendant's predecessor and cross-charges. In 1876 there was a suit by the defendant's predecessor in respect of this hat, the boundaries of which are given in the plaint. The western boundary is given as the Bhogai river. The case came up on appeal to the High Court and was referred to a Full Bench [Gopi Mohun v. Taramoni Chowdhrani (1)]. This was followed by a suit (No. 57 of 1876) between the same parties. The defendant's predecessor, plaintiff in that suit, recovered two pieces of land which are located as lands on the east of the bank of the Bhogai river which lands are still in the same position and have been identified by the amin as on the eastern bank of the present river Bhogai. The defendant in that suit claimed the lands as reformed lands and no suggestion was made that the river had changed. On the contrary the judgment, as It stood, showed that the river had undergone no change from the date of the survey up to 1876.. According to the plaintiff's case, however, made at the trial the change in the river occurred suddenly in one day in 1885 at the time of an earthquake. This involves the assertion that there was no change between 1876 and 1(sic)85, From the true position of the river as indicated in the survey map the change was, according to this case, very considerable and obvious. Yet as the learned Judge has pointed out, it is a strong circumstance against the plaintiff's case that she never laid any claim to land on the Lalitabari side of the river till shortly before the institution of the suit, though she had occasions to do so beth in the last settlement survey and in the proceedings under Sections 144 and 145 of the Criminal Procedure Code. This is strong evidence against her in that the parties had been fighting with bitterness over the site of the old hat. It is practically conceded before us that this story of the sudden change of the river in 1885 is not true, and was probably a device to meet the case of possible estoppel, having regard to the judgment in the suit of 1876 to which we have referred. As regards this litigation of 1876 it is said that it did not, at that time and for the purposes of that suit, suit the appellant to produce the survey map to show the true facts to the Court; rather the facts were made subservient to the plaintiff's case. These two admissions bear out the learned Judge's adverse comment on the plaintiffs suit that he rarely came across cases in which respectable Zemindars could take recourse. 'to so much inequities and cunningness.' The appellant, however, cannot throw up her case in this way when' she finds it inconvenient, in order to ask the Court to go on the assumption of another state of facts. If, however, we exclude this evidence of change in the river, there is none except so far as an inference of change is to be drawn from the survey map, if the same is held, to be correct. There is a prima facie presumption in favour of the accuracy of the thak and survey maps and it is for the defendant respondent to show that they are incorrect, if he so alleges. The learned Judge has held that he has shown that the survey map is incorrect. The fact that no claim was made till shortly before the suit remains but its significance is no doubt diminished if there were a change in the river which was of a gradual character, a supposition contrary to the case made a by the appellant's, evidence. What ever may be the justice of the finding of the learned Judge as regards the appellant's conduct of the case, (conduct which may have affected the value of the oral evidence adduced in support of it) the appellant contends that such a finding cannot affect the value of the evidence derived from the maps, particularly from the survey maps, To some, extent, however, the evidence as to the change of the river has a bearing on the question before us, because if the river has changed then the survey map may be correct, as the appellant contends. Whereas if there has been so change or substantial change as the defendant contends, then it follows that the survey map is incorrect in so far as it establishes that the survey line of the river goes through certain existing landmarks.
7. As I have stated, the presumption is in favour of the appellant as regards the maps, although it is to remembered that this is an appeal in which the onus is upon her to establish that the learned Subordinate Judge was wrong when he found that the survey map had been proved to be incorrect, Such a map may be shown to be incorrect by the admission of parties or adjudication by a Court or by evidence intrinsic or extrinsic to the map in question. We have admittedly in the present appeal nothing to do with either of the first three of these cases but with the fourth only, it being alleged and found by the learned Subordinate Judge that the survey map is erroneous by reason of certain extrinsic circumstances with which I will deal. To, these circumstances may be added, at bearing upon this point, the very important evidence of possession. The absence of claim by the plaintiff, so far as it goes and so far as it is held not to have been explained, is inconsistent with the change in the course of the river which she alleges. On this point the learned Sub-ordinate Judge states that the parties had been for a long time fighting bitterly, that all the time the plaintiff had been the aggressor and had shown a resolution to destroy the defendant's hat somehow or other, that if the plaintiff had really any land of her mouzahs on the Lalitabari side--specially on the Bazar site of Lalitabari--and the defendant had takes wrongful possession of the same in the latter part of 1315, than its could hardly be imagined that the plaintiff would have remained silent during the survey settlement which took place in the years 1910 and 1911. No doubt the appellant, has given evidence for the purpose of explaining these facts. But the learned Judge, who saw the witnesses and heard evidence, has not accepted their story. He further found that the plaintiff had wilfully suppressed certain papers because they would be of material help to the Court and prejudicial to her case. The plaintiff's officer Jatindra was present in Court but not examined. The people of the Taragunj Bazar also dealt with the defendant, as owner of the land an the Lalitabari side. The Judge observes that the plaintiff did not examine a single respectable mohajan of that Bazar.
8. Before proceeding to a discussion of certain other circumstance, namely, the landmarks which are said to show the incorrectness of the revenue survey map, I may observe that in this appeal it was argued that if the appellant were not successful in showing that the learned Judge was wrong in his conclusion as regards the survey map, at any rate the plaintiff appellant is entitled to such land as, she might be able to show, belonged to her according to that thak map. There was, it is true, a, reference to the thak map both in the plaint and in the issues. But as the learned Judge has pointed out, what the plaintiff relied upon at the trial was not the thak map but the revenue survey map, and it is obvious why this should be so. For it is admitted that only upon the establishment of the revenue survey line of 1857 could the plaintiff hope to obtain what it her main object in this suit, the possession of the Lalitabari hat. On the basis of the thak map, if correct, she would not establish her title to the hat. We think that in the circumstances, as the case was made and based on the survey map and as this was really the subject of discussion in the lower Court, we should confine ourselves to the survey map. This case is not like that of a plaintiff WHO suing for a certain sum establishes his right to a lesser sum in respect of which be in on titled
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of the tree he is deposing about. It would not be safe perhaps to rely on this circumstance alone. But in dealing with the evidence as to the high land we are on firmer ground. The a min has found that in the site of the survey river there are certain high lands, in some places 12 feet high, and he gives it as his opinion that looking at these high lands the river could not have flowed over them at the time of the revenue survey of 1857. It has been suggested that these high lands might have been pushed no by an earthquake, an occurrence to which the district of Mymensingh is frequently exposed. If this bad been so, it seems likely there would have been some evidence on this point. The appellant has tried to prove the correctness of the survey map by showing that there are certain settlement plots to the north which are on the site of the survey river as shown is the map of 1857 and that these plots are char land, and hence he argues that the river once flowed there and that the fact proves the correctness of the survey map. This fact would at the most prove that the river at some time or other did flow there, but it would not prove that the river was flowing there in 1857, which is the issue in the present case.
9. Taking all the facts and circumstances of the case into consideration, we are not prepared to say that the Trial Court was wrong in relying on the amin's evidence to show that the river could not have flowed at the time of the revenue survey of 1857 in the site on which the revenue survey map of 1857 could represent it to have flowed and that, taking this view of the evidence, the Trial Judge was wrong in holding that the survey map, in so far as it represented the boundary between the plaintiff's and defendant's mouzahs, was incorrect.
10. The result is that the appeal fails and is dismissed with costs.
11. There was a cross objection by the respondents which was not pressed. It was withdrawn and, therefore, no order is made as to the costs thereof.