W. Comer Petheram, Kt. C.J. and Tottenham, J.
1. We think that the Subordinate Judge has taken a wrong view of what is, or is not a question of title, and it is necessary that this case should be returned to him for re-trial.
2. The suit is a suit brought by the purchasers at a revenue sale of a taluq against the holder of a neighbouring taluq, to recover possession of a piece of land which, he says, belongs to his taluq, and which the defendant says belongs to the owner of another taluq, under whom he holds. The only question to be tried is, where is the boundary line between the two properties?
3. The plaintiffs, as I said just now, bought at a revenue sale, and the effect of that sale was to put them in the same position as that which the person occupied with whom the property was originally settled, that is to say, on default of payment of the revenue, the Government puts up for sale the whole estate out of which the revenue which had defaulted was payable, and the purchaser at such sale is entitled to get the whole of the settled estate which was sold for non-payment of the revenue. Well, the plaintiffs bought that, and the question which has to be decided is, what is the estate which had been sold, and that depends upon the position of the boundary between it, and the one next to it.
4. There is no dispute as to the title to the taluqs; it is admitted that the plaintiff's are entitled to the one, and the defendant or his superior landlords to the other, and the titles do not come into question in any way; the only question as I said before is, where the boundary line is to be
5. It appears that, in the year 1859, a thakbust survey was made and maps were prepared, and upon the face of these maps appear, what were admitted by the parties to be, the boundary lines of the various estates at that time, and if they were admitted to be so at that time, that is the strongest evidence that they were so at the time of the permanent settlement, because there is nothing to show that there has been any change in the physical features of the place, or the relative positions of the boundary lines, from that time, down to the time of the thakbust survey. So that the thakbust maps are clearly evidence to show what the boundaries of the properties are. No doubt, the boundary of a property may, in one sense, be said to be a question of title, because upon the question, where the boundary is, depends the question which person is entitled to the property. But by title, within the meaning of the Acts, meant the nature of a man's title, and not what lands he holds under that title. We think, therefore, that the Subordinate Judge was wrong in giving no effect to this thakbust map. It is not only evidence, but is very good evidence as to what the boundaries of the property were at the time of the permanent settlement, and also as to what they admittedly were in 1859.
6. Under these circumstances, we set aside the decision of the Subordinate Judge, and remand the case to him in order that he should reconsider the matter, giving effect to the thakbust map, and to the remarks which we have now made in this case. Costs will abide, and follow, the event.