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Jagat Chandra Dutta and ors. Vs. Kanto Prashad Hazari - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1896)ILR23Cal335
AppellantJagat Chandra Dutta and ors.
RespondentKanto Prashad Hazari
Cases Referred and Rameshur Singh v. Sheodin Singh I.L.R.
Excerpt:
evidence act (i of 1872), sections 36, 83 - map made by deputy collector for particular purpose--proof of accuracy of map. - .....the plaintiffs' lessor, and that the remainder fell outside that estate and was part of the chur lands settled with the defendant kanto prashad; and it accordingly limited the decree in favour of the plaintiffs to the land that fell to the north of the boundary line laid down in babu jagabundbu sen's map.2. on appeal by the plaintiffs the lower appellate court set aside this decree of the first court and remanded the case to that court for a fresh trial, holding that the map of the deputy collector, babu jagabundhu sen, was no evidence against the plaintiffs, as they did not take any part in the proceedings in the course of which that map was prepared. after the remand, the first court found that the land in dispute was wholly included within the permanently settled estate taraf joy.....
Judgment:

Banerjee, J.

1. This appeal arises out of a suit brought by the plaintiffs respondents, to recover possession of some land as included within the permanently settled estate Taraf Joy Narain Ghosnl, which was purchased at a sale for arrears of Government revenue by their lessors, and of which they alleged that they held a sudder putni. The defence of the principal defendant Kanto Prashad Hazari was that the land did not form any part of the permanently settled estate Taraf Joy Narain Ghosal; that it was a part of the bed of the river Sankho; that on the river being silted up the land was measured and settled by Government with him; and that it had ever since remained in his possession, and the plaintiffs' title, if any, was consequently barred by limitation. In support of his allegations the defendant put in a, map prepared by Babu Jagabundhu Sen, Deputy Collector, in the year 1869, and the first Court, after a local investigation, came to the conclusion that a portion of the disputed land fell within the permanently settled estate of the plaintiffs' lessor, and that the remainder fell outside that estate and was part of the chur lands settled with the defendant Kanto Prashad; and it accordingly limited the decree in favour of the plaintiffs to the land that fell to the north of the boundary line laid down in Babu Jagabundbu Sen's map.

2. On appeal by the plaintiffs the lower Appellate Court set aside this decree of the first Court and remanded the case to that Court for a fresh trial, holding that the map of the Deputy Collector, Babu Jagabundhu Sen, was no evidence against the plaintiffs, as they did not take any part in the proceedings in the course of which that map was prepared. After the remand, the first Court found that the land in dispute was wholly included within the permanently settled estate Taraf Joy Narain Ghosal, and it decreed the plaintiffs' claim in full, and upon appeal by the defendant Kanto Prashad against that decree, the lower Appellate Court has affirmed the same.

3. In second appeal it is contended on behalf of Kanto Prashad Hazari, that the decree of the lower Appellate Court is wrong, first, because the map prepared by Babu Jagabundhu Sen, which was admissible in evidence under Sections 36 and 83 of the Evidence Act, and against the admissibility of which no objection was taken by the plaintiffs, has been improperly excluded; and, secondly, because the lower Appellate Court, quite independently of the question of title, ought to have held that the suit was barred by limitation by reason of the defendants having been in adverse possession for more than twelve years.

4. Upon the first contention, we do not think that the map in question is of a description which is one of those referred to in Sections 36 and 83 of the Evidence Act. It purports to be a map of the silted bed of the river Sankho. It is evidently, on the face of it, neither a thak map nor a survey map, such as is made by, or under the authority of, Government for public purposes. It appears to have been made by Government for a particular purpose, which is not a public purpose, namely, the settlement of the silted bed of a certain river. That being so, we do not think that the provisions of Sections 36 and 83 of the Evidence Act are applicable to this map; and this view is fully supported by the decisions of this Court in the cases of Junmajoy Mullich v. Dwarkanath My tee I.L.R. 5 Cal. 287, and Ram Chunder Sao v. Bunseedhur Naik I.L.R. 9 Cal. 741.

5. It remains now to notice the further contention under this head that the Court of Appeal below in its remand order was wrong in rejecting this map when no objection was made as to its admissibility by the other side. A question might arise how far it is open to the appellant to raise this contention now, he not having preferred any appeal against the remand order; but we think upon the authority of the cases cited on behalf of the appellant by the learned Advocate-General, namely, the cases of Savitri v. Ramji I.L.R. 14 Bom. 232 and Rameshur Singh v. Sheodin Singh I.L.R. 12 All. 510, that it is open to the appellant to raise this point, notwithstanding that he did not appeal against the remand order. On the merits, however, we do not think that the objection is tenable. The document was not absolutely inadmissible in evidence. It was admissible in evidence, but its accuracy had to be proved by the party producing it.. It was not therefore necessary for the plaintiffs to object to the filing of the document as one that was absolutely inadmissible, and the fact of the plaintiffs not having objected to the filing of this map does not go to prove that it is accurate. The defendant adduced no evidence before the first Court to prove the correctness of the map; and that being so, we think that the lower Appellate Court, when remanding the case to the first Court, was quite right in holding that the map could not affect the question at issue between the parties.

6. It was argued that as the Amin had made use of this map in making the local investigation and had referred to it in his report, the plaintiffs ought to have objected to the Amin's report on the ground of this map having been improperly used by him, and that as they did not do so, we must take it that they had waived all objection to the accuracy of the map, and that the lower Appellate Court was therefore bound to accept it as accurately prepared. We, do not think there is much force in this contention. The Amin referred to this map only for the purpose of drawing a certain line, but his conclusion was that the whole of the disputed land was included within the permanently settled estate Taraf Joy Narain Ghosal; and as that conclusion was entirely in favour of the plaintiffs, they were not bound to raise any objection to the Amin's report. For all these reasons we must hold that the first ground urged before us has not been made out.

7. [After deciding the second point, also against the appellant, His Lordship continued].

8. The grounds taken before us, therefore, both fail, and the appeal must be dismissed with costs.


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