1. The plaintiff-appellant brought this suit for a declaration of his title to, and for confirmation of his possession in a tract of jungle land in which there was a small patch of arable land; or, if he was found to have been dispossessed, then for recovery of possession. The tract of land claimed was alleged to be included in the plaintiff's village of Jabkakona included in pergunnah Beru. Jabkakona lies immediately to the south of Serabera the village of defendant No. 1 in pergunnah Palkote. The boundary line of the two villages admittedly corresponds with the boundary line of the two pergunnahs.
2. The cause of action was alleged to have arisen in 1900. In that year plaintiff leased out the jungle to Messrs. Dear and Co., the Company defendant 2nd party; and when the Company proceeded to cut down trees in the jungle and to make sleepers, men on behalf of defendant No. 1 came and carried off the sleepers : defendant 2nd party instituted a case in the Criminal Court but it was dismissed on the ground that the dispute between the parties was one relating to boundaries and could only be decided in a Civil Court. As Messrs. Dear and Co., refused to join as plaintiffs they were added as defendants 2nd party in the suit.
3. Plaintiff also alleged that the patch of arable land in the tract in dispute had been reclaimed by his tenants, who had also built huts forming a tolee or hamlet called Bastuli and that his tenants were still in possession of the arable land..
4. Defendant No. 1 denied plaintiff's title and possession of the jungle and further alleged that there was no hamlet in the jungle but only a plot of land called Barlogeb which covered the patch of arable land, and that it had been brought into cultivation by one of his tenants who built a hut on it, but afterwards went away. He claimed the land in suit as included in his village of Serabera.
5. To support his claim the plaintiff relied mainly on a topographical survey map of 1869 the survey having been made in 1864 and 1865. He also called witnesses to prove his possession.
6. A Commissioner was appointed to lay out the boundary line between Jabkakona and Serabera, following the boundary line between pergunnahs Biru and Palkote, as laid down in the topographical survey map. Both of the lower Courts have held that the line as depicted in the map prepared by the Commissioner correctly lays down the boundary between the two villages and two pergunnahs as shown in the survey map and according to the Commissioner's map the tract of jungle in dispute is included within the boundaries of the plaintiff's estate Jabkakona.
7. The Court of first instance relied on the map prepared by the Commissioner on the basis of the survey map as supporting the plaintiff's title and in a long and careful judgment the Subordinate Judge has discussed the evidence. He notices that according to the boundary line as pointed out by the agent of defendant No. 1, the southern portion of the patch of arable land in dispute fell within the plaintiff's village and as the whole of the arable land appeared to have been brought under cultivation by the same persons, ho drew the inference that the whole of the patch of arable land was brought into cultivation by the plaintiff's tenants, and that this fact supported the plaintiff's case that he was in possession.
8. As regards the jungle land he held that neither party had adduced satisfactory evidence to prove any tangible act of ownership from which it could be determined that they were in exclusive possession of it.
9. He disbelieved the defendant's evidence as to possession of the arable land.
10. He, accordingly, gave the plaintiff a decree declaring his title to the whole of the jungle claimed and confirming him in possession.
11. On appeal, the Judicial Commissioner has set aside the judgment and decree of the Court of first instance, and has dismissed We plaintiff's suit with costs. Plaintiff has appealed.
12. In describing the circumstances of the case in the opening portion of his judgment, the learned Judicial Commissioner remarks : ' The case thus resolves itself into a boundary dispute, the question at issue being as to whether or not the pergunnah boundary which is also the village boundary has been proved to be north of the jungle in suit, so as to include that jungle in the first respondents (i.e., the plaintiff's) mouzah Jabkakona.' He then expresses his agreement with the conclusion of the Subordinate Judge based on the map and report of the Commissioner, but holding that the oral evidence of possession given by the three raiyats for the plaintiff is worthless, he proceeds to lay down that 'there remains the all important question whether such a map ' (i.e., the topographical survey map of 1869 in accordance with which the Commissioner laid down the boundary) ' constitutes evidence sufficient to support the claim which the plaintiff sought to establish,'' and proceeds to add ' that question must, in my opinion, be answered in the negative.'
13. He bases his conclusion on the following grounds. A topographical survey map in his opinion is nothing more than a pictorial detailed description of the superficial features of a tract of country locating such things as hills, jungles, villages, towns, roads, railways and so forth.' He considers that it was not part of the duty of the Survey officer to ascertain and lay down the boundaries of mauzahs, and pergunnahs and where it has been done as in this case, he thinks 'that this was done incidentally and more or less in accordance with possible the most haphazard information.' He is unable, therefore, to accept the map as satisfactory evidence of possession or of title and considers that it could only be accepted as corroborative evidence. He leaves the boundary line absolutely undefined.
14. The main argument advanced in support of this appeal is that the learned Judicial Commissioner had erred in law in the view which he has taken of the topographical survey map, and of its value as evidence in the case; and it has been contended that in the absence of better evidence it was not only admissible as evidence, but constituted valuable evidence of title. The Judge, it is urged, erred in regarding it as admissible simply as corroborative evidence. It has further been contended that as the dispute between the parties was one of boundaries, it was the duty of the Judge to determine the boundary. Further it has been contended that on the finding of the Court of first instance, which he has not displaced, the Judge should have come to the conclusion that the plaintiff had proved his possession of the arable patch, as well as of the whole tract of jungle in dispute.
15. For the respondent it has been contended that this appeal is concluded by the findings of fact of the Court of first appeal, and we have been referred in support of this contention to the decision of the Privy Council in the case of Durga Chowdhrani v. Jewahir Singh Chowdhuri 18 C. 23 : 17 I.A. 122.
16. In this case the dispute between the parties was admittedly one of boundaries, and we think that it was clearly the duty of the Judge to come to some decision as to the proper boundary between the two villages, the question he has not determined. In this case, the boundary line admittedly passes through jungle and the directions contained in the judgment of the Privy Council in the case of Lukhi Narain Jagadeb v. Jadu Nath Deo 21 C. 504 at p. 511 : 21 I.A. 39 appear to us to be directly in point. Their Lordships say : ' It is of frequent occurrence especially in cases where the disputed line of division runs between waste lands which have not been the subject of definite possession, that no satisfactory evidence is obtainable. That circumstance cannot relieve the Court of the duty of settling a line, upon the evidence which is laid before it. The ordinary rule regarding the onus incumbent on the plaintiff has really no application to cases of that kind. The parties to the suit are in the position of counter-claimants; and it is the duty of the defendant, as much as of the plaintiff, to aid the Court in ascertaining the true boundary. Were any other rule recognised the result might be that some boundaries would be incapable of judicial settlement.'
17. The plaintiff has offered evidence to prove the boundary. Defendant No. 1 has produced none, relying on evidence of possession only which has been rejected certainly by the Court of first instance, and apparently by the appellate Court also, as worthless. There remains for the determination of the boundary the survey map only, and the admissions of the defendant's agent to which the Court of first instance has attached importance, but which the Court of appeal has not noticed.
18. As regards the value as evidence of the topographical survey map, we are unable to agree with the view taken by the Judicial Commissioner. He seems to have regarded the map as disentitled to credit, because it was not made under any statutory authority.' Section 36 of the Evidence Act, however, does not lay down that the authority under which the map has been prepared, must be authority given by statute. The survey map was clearly prepared by survey officers acting under authority of the Government. It appears to have been made under the directions of the Surveyor General of India. It was certainly, therefore, admissible in evidence under Section 36 of the Evidence Act.
19. The learned Judicial Commissioner has, in the next place, held that it was no part of the duty of the officer who prepared the map, to ascertain and lay down the boundaries of mouzahs and pergunnahs. It is not, however, clear on what grounds he has arrived at that conclusion. The pergunnah boundaries have been entered in the map, and the presumption is that the officer who entered them, did so in pursuance of instructions received.
20. So far as we have been able to ascertain, the topographical survey maps are the only maps which have been prepared of the country comprised in Chota Nagpur. This too is stated to be so in Hunter's Statistical Reports.
21. It would seem then that there is not in existence any better evidence than these maps of the pergunnah boundaries. It is well-known that a very large portion of the districts included in Chota Nagpur is still, as it has always been, covered with jungle, and if these survey maps be rejected as inadmissible and worthless as evidence of the pergunnah boundaries it is not clear on what evidence they could be ascertained. It is not clear for what purpose exactly these maps were prepared, but even assuming that they were not prepared for revenue purposes, we think that the remarks of their Lordships of the Privy Council in Jagadindra Nath Roy v. Secretary of State for India 30 C. 291 at p. 301 : 30 I.A. 44 : 7 C.W.N. 193 would still be applicable and that they ' are official documents prepared by competent persons and with such publicity and notice to persons interested as to be admissible and valuable evidence of the state of things at the time they were made. They are not conclusive and may be shown to be wrong but in the absence of evidence to the contrary, they may be properly judicially received in evidence as correct when made.' The conclusion of the Judicial Commissioner that the boundaries were laid down incidentally more or less in the rough in accordance with possibly the most hap-hazard information' is based, so far as we can judge, on mere assumption. It is equally possible, and certainly more probable, that the boundaries were laid down on the best information, which the survey officers were at the time able to obtain. We are of opinion, that in the absence of better evidence, and it has not even been suggested that better evidence, is available, the map produced by the plaintiff, in the absence of evidence to prove that it is wrong may be properly judicially received in evidence as correct when made.
22. Further, we are of opinion, that it was the duty of the Judge, as laid down by the Privy Council, to settle the boundary line on the evidence before him, and in the absence of better evidence we hold that he erred in law in not accepting the map as evidence of plaintiff's possession at the time the map was made and consequently of his title to the land in suit.
23. Moreover, we are also of opinion, that the learned Judge erred in disregarding and attaching no importance to the fact, noticed by the Subordinate Judge that the boundary line as pointed out by the agent of defendant No. 1, included in the village of the plaintiff a portion of the arable land in suit. It was not suggested that the arable land had been brought under cultivation partly by tenants of one party, and partly by tenants of the other, and the fact that a portion of it was admittedly in the village of plaintiff, supported the inference that the whole of the land was brought into cultivation by the tenants of the plaintiff. This circumstance certainly meant to support the plaintiff's case that he had been in possession.
24. We are unable, therefore, to support the judgment and decree of the Judicial Commissioner, but on the other hand, are of opinion that the Court of first instance was right in holding that the plaintiff had proved his title and possession to the land in suit.
25. We, therefore, decree the appeal with costs. We set aside the judgment and decree of the Judicial Commissioner, and restore the judgment and decree of the Subordinate Judge.