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Kedarnath Bhattacharjee Vs. Mahendranath Kundu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Case NumberA.F.A.D. No. 1352 of 1945
Judge
Reported inAIR1951Cal253,54CWN671
ActsEvidence Act, 1372 - Section 13
AppellantKedarnath Bhattacharjee
RespondentMahendranath Kundu and ors.
Appellant AdvocateNaresh Ch. Sen Gupta and ;Jnanendra Nath Mukherji, Advs.
Respondent AdvocateHiralal Chakravarty and ;Shyamdas Bhattacharjee, Advs.
DispositionAppeal dismissed
Cases ReferredIn Dinomoni v. Brojo Mohini
Excerpt:
- .....accept these maps to have been duly proved. the suit was decreed on evidence other than those two maps. the learned district judge, however, held that if these maps stood by themselves they could not have been treated as having been proved but at least in the case of ex. 2, if not also ex. 2 (d), the map was a part of the conveyance and the deleniations in the map are illustrative of the descriptions of the boundaries as given in the schedule to the document. the maps were accordingly taken into consideration and were treated as important pieces of evidence.8. i agree with the conclusion reached by the learned district judge that the oral evidence as adduced about the preparation of the maps is not sufficient by itself to prove the accuracy of the maps.9. the distinction between public.....
Judgment:

R.P. Mookerjee, J.

1. This is an appeal on behalf of the defendant in a suit brought by the plaintiffs for recovery of possession of a small strip of land on declaration of the plaintiffs' title thereto.

2. The plaintiffs' case is that their father had purchased holding No. 34 in ward No. 1 of the Nabadwip Municipality which was included within C. S. Plot 1177 of C. S. Khatian No. 4161 of Mouza Nabadwip. It is claimed that the disputed land, which is a narrow strip about 2ft. in breadth and about 57ft. in length appertains to the said holding and as such had been in their possession. C. S. Plot 1178 which lies to the south of plot 1177 belongs to the defendant. To the west of plaintiffs' Plot no. 1177 is C. S. Plot 1176 used for a long time as a common passage by the people in the locality. On 16-5-1942, it is alleged, the defendant dispossessed the plaintiffs from the narrow strip by raising pillars on it and having it fenced off.

3. The defence is that the disputed land appertains to the defendant's Plot No. 1176 and not to that of the plaintiffs' plot No. 1177. A platform on a portion of the disputed land was also alleged to have been constructed by the predecessor in interest of the plaintiffs with the permission of Gandheswari a predecessor in interest of the defendant in respect of the plots now owned by him.

4. Both the Courts have come to the conclusion that the strip of land lies within the plaintiffs' plot and accordingly decreed the suit. The principal question is one of parcel or no parcel. The dispute is evidently more or less a boundary dispute. The findings arrived at are assailed before me principally on two grounds: (1) That the learned District Judge, had relied on two plans attached to EXS. 2 & 2 (d), but he ought to have been held those being private maps they were not properly proved; and (2) the test applied for determining who is in possession is not according to the accepted legal principles.

5. As indicated already, the land in suit is a very narrow strip. The learned District Judge has considered fully the oral and documentary evidence produced in the case and has given satisfactory reasons as to why the map as prepared by the Commissioner cannot be accepted. The maps attached to EXS. 2 and 2 (d) have been treated as important pieces of evidence. Exhibit 2 is the conveyance by which plaintiff's father had purchased C. S. plot 1177 on 3-6-1924 from the guardian of the minors to whom the property belonged. In the document the boundaries are described. Attached to this is a plan drawn to a scale which is referred to in the document itself.

6. Exhibit 2 (d) is the conveyance executed by the Sarkars in favour of the father of the minors who became subsequently the vendors to the plaintiffs. A plan is also attached to this document.

7. These two documents were duly proved but on behalf of the defendant it is urged that these maps being private maps their accuracy has to be proved before they can be taken into evidence. The learned Munsif has given effect to this objection and he did not accept these maps to have been duly proved. The suit was decreed on evidence other than those two maps. The learned District Judge, however, held that if these maps stood by themselves they could not have been treated as having been proved but at least in the case of EX. 2, if not also EX. 2 (d), the map was a part of the conveyance and the deleniations in the map are illustrative of the descriptions of the boundaries as given in the schedule to the document. The maps were accordingly taken into consideration and were treated as important pieces of evidence.

8. I agree with the conclusion reached by the learned District Judge that the oral evidence as adduced about the preparation of the maps is not sufficient by itself to prove the accuracy of the maps.

9. The distinction between public and private-maps is well settled. Section 36, Evidence Act, provides for the admissibility of published maps or charts generally offered for public sale or maps or plans made under the authority of the Government. Section 83 of the same Act raises a presumption as to the accuracy of maps or planet purporting to have been made under the authority of Government. Maps made for the purpose of any cause must be proved to be accurate.

10. The Courts have proceeded so far as to lay down that when maps are prepared by a Government Officer for the purpose of settlement of land they are admissible in evidence under Sections 36 and 83, Evidence Act; but they are maps the accuracy of which must be proved before they can be admitted in evidence (Kanto Prashad Hazra, v. Jagat Chandra Dutta, 23 Cal. 335.)

11. The maps in question in the present case are private maps and if the above test has to be applied it will have to be held that they have not been proved. The maps, if they had stood by themselves, there cannot be any doubt that until their accuracy was proved they could not be taken into evidence. Section 13, Evidence Act, however, provides :

'Where the question is as to the existence of any right or custom, the following facts are relevant:

(a) any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence:

(b) particular instances in which the right or custom was claimed, recognised or exercised, or in which its exercise was disputed, asserted or departed from.'

Exhibits 2 and 2 (d) represent transactions wherein the right now in question was claimed and exercised and the documents are documents of title of the property in suit. The conveyances are, therefore, clearly admissible in evidence for showing that there was such a transaction and also as to who the parties were and what land was in question. The documents mention certain boundaries. If a map is referred to in a document such a map is admissible in evidence to render the document itself intelligible. Under Section 13, Evidence Act, papers which prove a transaction in which the right or custom in question was created, claimed, or modified, recognised, asserted or denied or which was incompatible with its existence are admissible. In Dinomoni v. Brojo Mohini, 29 I. A. 24 : (29 Cal. 187 P. C.), the Judicial Committee held that maps referred to or accompanying orders made under the Code of Criminal Procedure deciding who is in possession of a disputed land, are admissible in evidence. The same principle is attracted in the case of a map or plan attached to or referred to in a document of title relating to the properly in suit. Such a map is a part of the document and is necessary to understand or explain the document itself. The learned District Judge was right in relying upon the maps attached to as parts of EXS. 2 & 2 (d).

12. Various items of evidence oral and documentary had been adduced by the parties. The learned District Judge has considered in great detail the evidentiary value of each one of those items, and has arrived at a finding of fact which cannot be assailed before me. The allegation as to the alleged permission from Gandheswari, a previous owner of the plots, now possessed by the defendant has been disbelieved. It is definitely found that there is no reliable evidence that Gandheswari or her predecessors-in-interest had ever used the disputed strip. The finding on this point cannot be questioned on any principle of law. Both the points urged fail and this appeal dismissed with costs.


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