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Hemangini Debi Vs. Mundir Mridha and ors. - Court Judgment

LegalCrystal Citation
Subject Property
CourtKolkata
Decided On
Reported inAIR1928Cal576
AppellantHemangini Debi
RespondentMundir Mridha and ors.
Excerpt:
- .....it is urged that the learned district judge committed error in not treating the decision of the survey officer who demarcated the boundary of the two adjoining villages in the year 1913 as one that proved possession on the part of the plaintiff. this contention has no force having regard to the terms of the order passed by the survey officer. section 47, survey act (5 of 1875), directs that the survey officer in deciding a dispute as to boundaries between two mauzas must determine the boundary with reference to actual possession. section 62 of that act gives that decision the force of the decree. the order passed by the survey officer was that he was unable to decide the fact of possession from the evidence collected by him. he therefore refused to decide who was in actual possession.....
Judgment:

1. The plaintiff who is the appellant before us sued for declaration of her tenancy right in certain lands and for recovery of possession. Her case was that the lands formed part of Estate No. 230 of the Patna Collectorate corresponding to Estate No. 77 of the Rajshabi Collecborate and were comprised within Chaks Nos. 25 and 28 of the Mehalwar map of village Katabari. She alleged that these lands which admittedly had been under water previously had become culturable and had been leased by the zamindar of the Estate No. 239 to third parties who defaulted in the payment of their rent and that the tenancy was sold in execution of a decree for arrears of rent and was purchased at that sale by the plaintiff. The defendants denied these allegations, alleging that the lands beloged to village Mashinda within the district of Rajshahye and that they (the defendants) had been in possession of those lands for at least 28 years under leases granted by the Zemindar of Mashinda. The Court of first instance gave the plaintiff a decree which was reversed by the learned Court of appeal below. The grounds on which the learned Judge of the Court below dismissed the suit are that the lands in suit have not been identified as forming part of the mouza named by the plaintiff and that the suit is barred by limitation because the defendants have been in possession of the lands for at least 28 years. These findings of the learned Court below are assailed in second appeal before us.

2. With regard to the question of limitation, it is urged that the learned District Judge committed error in not treating the decision of the Survey Officer who demarcated the boundary of the two adjoining villages in the year 1913 as one that proved possession on the part of the plaintiff. This contention has no force having regard to the terms of the order passed by the Survey Officer. Section 47, Survey Act (5 of 1875), directs that the Survey Officer in deciding a dispute as to boundaries between two mauzas must determine the boundary with reference to actual possession. Section 62 of that Act gives that decision the force of the decree. The order passed by the Survey Officer was that he was unable to decide the fact of possession from the evidence collected by him. He therefore refused to decide who was in actual possession and directed that the boundary should be plotted as it stood in the revenue survey map. The contention set up on behalf of the appellant is that because the Survey Officer in his order used the word 'determine' and said that the boundary should be determined according to that laid down in the survey map, the use of that word had the effect of making the order an order determining the fact of possession. Such a eontention cannot be sustained for a single moment as there would be a contradiction between the conclusion and the premises. The decision of the Survey Officer therefore cannot assist the plaintiff in disproving the possession of the defendants and therefore that decision does not in any manner stand in the way of the learned Court below coming to the conclusion on the facts that the defendants have been in possession for at least 28 years. That is a finding of fact; and, as that finding cannot be disturbed, it follows that the conclusion arrived at by the learned Court below, that the suit is barrel by limitation, is correct. It is unnecessary, therefore, to go into the other question whether or not the lands, in suit have been identified as the lands which formed part of the tenancy set up by the plaintiff. On this question also, it may be said that the findings of the learned Court below are findings of fact. The learned Judge has stated that the evidence brought on the record is insufficient to establish the identity of the lands claimed. The findings therefore cannot be disturbed. The appeal is accordingly dismissed with costs.


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