1. These two appeals arise out of two suits (Nos. 35 and 36) for recovery, of possession of certain lands on declaration of plaintiff's title thereto.
2. It appears that Taluk No. 130 of the Mymensingh Collectorate was partitioned in 1261 among the proprietors, and the estate was divided into 14 estates Nos. 6042 to 6054 and 130, out of which Estate No. 6049 was allotted to the predecessors of the plaintiff, and Estates Nos. 6042 and 6052 to the defendants' predecessors-in-title. In No. 1265 (1849) a batwara chitta was prepared, and Dag No. 372 was allotted to plaintiff's Estate No. 6049.
3. The plaintiffs claimed the lands of both the suits, as being covered by Dag No. 372. Suit No. 35 related to Cadastral Survey Dags Nos. 186 to 195 and 203 but, the plaintiffs by a petition gave up their claim to Dags Nos. 186 to 195 in the Court below and the claim with respect to, those Dags was accordingly dismissed. Dag No. 203 was claimed by the defendants as appertaining to their Estate No. 6052 of which the defendant No. 3 was proprietor of a moiety share. The defendant No. 3 by compromise gave up his 8-annas share in favour of the plaintiffs. The claim, therefore, in Suit No. 35 is now confined to an 8-annas share of Dag No. 203 and is contested by the defendants Nos. 2, 4 and 5 only.
4. Appeal No. 110 arises out of Suit No. 36 which relates to lands described in two schedules. Schedule No. I is said to comprise Cadastral Survey Plots Nos. 584,587/622, 585, 586 and 588 to 594, and Schedule II Cadastral Survey Plots Nos. 833, 834, 2135, 2136 and 2224.
5. The defence does not deny that Dag No. 372 is in Estate No. 6049 of which the plaintiffs are the owners, but the defendants deny that the lands are covered by that dag. As, stated above the lands of Suit No. 35 are claimed by the defendants as appertaining to Dag No. 368 of their Estate No. 6052, and the lands covered by Suit No. 36 as owners of Estate No. 6042 (the lands of Schedule I as being comprised in Batwara Dags Nos. 430 to 434, and the Schedule II lands as Batwara Dag No. 291).
6. Certain persons--Sens--were the owners of 6042, Abdul Hamed (defendant No. 2) at first acquired one-third share by purchase from the Sens and then took another one-third share in patni from them. Ebadut (defendant No. 1) the father of defendant No. 2 purchased the proprietary interest of this one-third share from the Sens. So two-thirds of the proprietary interest (and one-third patni interest) are vested in the defendants. One Debendra Sen has still one-third share left in the estate.
7. There was a Cadastral Survey in 1912 to 1916, and in the Settlement and Record of Rights which followed the lands were recorded in the names of the defendants. The plaintiffs case is that the defendants being emboldened by the entry in the Record of Rights dispossessed them in 1323.
8. The Court below held that the lands were covered by Dag No. 372 and accordingly gave a decree to the plaintiffs. The defendants have appealed to this Court.
9. The nature of the lands in dispute is thus described by the Court below: 'The land here is undulating, parts being uplands covered with jungle which are called chalas.' Between two chalas there are sometimes low lands which are called 'baid' if they are wide and the figures are not much irregular, while when they are narrow and with many branches they are called 'ghuni.' This distinction between 'baid' and 'ghuni' is not always adhered to, and sometimes a piece of low land is called 'baid' and 'ghuni' indifferently'... 'To the west of Schedule I of Suit No. 35 there is a baid. Whether it is called baid or ghuni the parties agree that it goes by the name of kanchir. To the east of Cadastral Survey Dag No. 203 which is the subject-matter of Suit No. 35 there is a baid as to the name of which, there is a dispute between the parties; To the east of the baid is a chala which is Cadastral Survey Dag No. 218 of Suri Chala Khatian. It is described by the plaintiff as Bara Kuthir Chala. The plaintiff's case is that the whole of the tract haying kanchir baid on the west and the baid to the west of Bara Kuthir Chala on the east is their Dag No. 372 of the Batwara Chitta of Garhbari. Within this tract there are three baids. For the sake of brevity I shall call the western most baid which is the eastern portion of Schedule I land of Suit No. 36 as Baid No. 1. The middle baid which is not the subject-matter of these suits I shall call Baid No. 2. The eastern baid of which part forms the western part of Schedule II land of Suit No. 36 I shall describe as Baid No. 3.'
10. The kanchir referred to above is outside, but 585-594 is within, the disputed land of Schedule I The middle baid (which is between the chain lines 417 and 418) i.e., baid No. 2 is Cadastral Survey plot No. 830 and is not in dispute. A portion of the Baid No. 3 (between chain lines 71 to 73) is within the disputed area only the southern part of 833 (Baid No. 3) being in dispute.
11. The main question for consideration in these appeals is whether the disputed lands are covered by Dag No. 372 of the batwara chitta appertaining to plaintiff's Estate No. 6049.
12. Before dealing with that question we would refer to certain partition proceedings which took place in 1904 among the proprietors of Estate No. 6042.
13. It appears that in the year 1904 the then proprietors of Touzi No. 6042 (including the predecessors-in-interest of the present contesting defendants) applied for partition of Estate No. 6042 by the Revenue Authorities. There was a Survey in 1901 for the purpose of the batwara proceedings and the maps Exs. 12 and 36 (maps Nos. 4 and 5) were prepared. The neighbouring proprietors were called upon to be present before the measurement was made. The plaintiffs filed a petition on the 12th July 1901 complaining that the Amin had already finished the Survey and submitted his papers (the map was filed on 25th May 1904) before notice was served upon them. The plaintiffs objected to the inclusion of some lands which they claimed as part of their Dag No. 372 of the Batwara Chitta of Garhbari, and prayed that the land in the southern portion of Dags Nos. 15 and 16 might be excluded from the mahal under partition. In map Ex. 12 to the south of plots Nos. 15 and 16 was written 'Nij Mauzah Brindaban Mandal's chala' (i.e., plaintiff's chala) An investigation was made by the Peshkar who reported that the objection about plot No. 15 was untenable but that a part of plot No 16 should be excluded from partition. The parties were called upon to state whether they had any objection against the report of the peshkar, but no objection was raised by the objector against his report with respect to plot No. 15. The partition Deputy Collector accordingly in his report dated the 23rd September 1905 held that the claim for exclusion of plot No. 15 might be disallowed. He held, however, that the part of plot No. 16 claimed by the objectors should be excluded from partition because the evidence of the only witness produced by the owners of No. 6042 was riot sufficient to prove that the part belonged to that estate, and as Ebadut and Meajao the ijaradars on behalf of the parent estate had executed kabuliyats in favour of the objectors that part of the plot No. 16 belonged to the latter. Collector accepted the view taken by the Deputy Collector viz., that plot No. 15 should not be excluded but that a portion of plot No. 16 should be excluded from partition.
14. The Court below has found that the land in respect of which plaintiff's objection to that part of Cadastral Dag No. 834 which lies to the east on Baid No. 3 and Baid No. 3 which latter was plot No. 15 in map Ex. 12 was disallowed, but the objection was allowed with respect to the 'stretch of land lying between Baid No. 3 and the eastern limit of Cadastral Survey Dag No. 2135 which is the north western part of Schedule II land of Suit No. 36. To the south of this plot it was admitted lay the plaintiff's chala, and this is identical with what I may say to be the middle portion of Schedule II land of Suit No. 36'
15. With respect to the lands of Schedule I (in Suit No. 36) also, the plaintiffs claimed them as within their Garhbari Chitta Dag No. 372. The peshkar reported that the defendants were in possession and that plots Nos. 99 to 108 did not fall within Garhbari. Another peshkar Kailas Chandra Roy was appointed, and he also reported (on the 22nd March 1907) upon the basis of existing possession that the lands were in bagerbati, i.e., belonged to the defendants. The Deputy Collector accordingly held that the objection should be disallowed. The Collector was of opinion that the defendants were in possession of a small fraction of the whole, but that the lands according to the revenue survey were within Garhbari. The objection of the objectors, however, was held to be untenable having regard to the provisions of Section 88 of the Partition Act.
16. The partition proceedings accordingly became infructuous, and were struck off by reason of the objections in connexion with the lands of Schedule No. I of Suit No 36 But the Court below has attached great importance to the fact that the Proprietors of No. 6042 did not claim that their mahal extended up to the limit of Kakrajan and the land which may be said to be identical with the middle part of Schedule 11 land of Suit No. 36 was shown in the map prepared as the plaintiff's chala, and that notwithstanding the Collector's decision to exclude from Estate No. 6042 the north-western portion of Schedule II land of Suit No 36, the proprietors did not challenge that decision. With reference to the fact that the defendants predecessors did not claim the middle portion of Schedule II it is pointed out on behalf of the respondent relying upon the evidence of plaintiff's Amin Kala Chand that the defendant No 1 Ebadut who was the principal gomashta of the proprietors of No. 6042 was present at the time when measurement was made and map prepared in the batwara proceedings in which the land was mentioned as plaintiffs chala and that although those facts were alleged in para. 6 of the plaint, the only thing he stated in para 5 of his written statement was that he 'took no steps in the batwara proceedings' which should not be believed having regard to the fact that he was the principal gomashta and that he wholly denied that he took any ijara of any land in dispute, which is manifestly false. Ebadut in his evidence says that he was examined in the batwara case and he showed the boundaries there but he was speaking of another Mouzah Nagbari. His evidence runs thus: 'Nathan was surveyed in the batwara case and I showed the boundaries there'.
17. On the other hand it is contended that the evidence of Amin Kala Chand does not show that Ebadut was present at the time the particular portion was measured and that in any case the map and the conduct of Ebadut cannot be treated as an admission against the defendants who claim under a title subsequently acquired from the proprietors.
18. It is difficult to hold that Ebadut was unaware of the measurements or that he did not take any part in the proceedings We are of opinion that the fact is certainly evidence though not binding as an admission upon the defendants who claim under an independent title.
19. On behalf of the appellants it was contended that the maps were not prepared for public purposes and were not, therefore, evidence without proof of their accuracy. It appears, however, that no objection was taken to map No. 4 (Ex. 12). Objection was taken to Map No. 5. (Ex. 36), but the map was made for purposes of a partition which affected the public revenue, and the map, therefore, is evidence for what it is worth, though it may be for a limited purpose only. On the other hand, the learned Subordinate Judge does not appear to have considered the presumption in favour of the defendants under Section 103-B of the Bengal Tenancy Act arising from the entries in the Record of Rights prepared in the later Settlement Proceedings held in 1912 to 1916. It is true the entries in the Record of Rights also are based upon possession, but they cannot be ignored, and we think that in these circumstances the question of title has to be determined upon the question of boundaries.
20. A Commissioner was appointed to hold a local investigation in the cases. His report is in favour of the plaintiff. Ordinarily in a boundary dispute the Commissioner's report is of great importance, but in the present case the findings of the Commissioner are inconclusive and are not of much help to the Court. It is contended on behalf of the respondents that no objections were taken to the report of the Commissioner, but as stated above, his findings are inconclusive, and the learned Subordinate Judge does not appear to have relied upon them. He has referred to it expressly in two places only. The first is where the Court considers the question whether Jani is in Kholar Baid. The Commissioner in para. 19 of his report found that it was, but the learned Subordinate Judge (in para. 14 of his judgment) differs from him. The second is with respect to the southern boundary of Dag No. 372. The Commissioner in para. 18 of his report states that on the south of the disputed land of Suit No. 36 are the lands of Doani, i.e., the southern boundary of plaintiff's Batwara Dag No. 372 is Mouzah Kakrajan. The Court below observes: 'As to the southern boundary it is difficult to understand the exact import. The proprietors of Zemindari Nos. 12 and 16 are known by the name of Two Ani. The Commissioner mentioned the whole of the tract to the south of the lands in dispute in this case as the lands of the Two Ani. The learned Pleader for' the defence contends that this is incorrect. In my opinion the matter is not of much importance.' These go to show that much weight cannot be attached to the Commissioner's report except where it is in accordance with the boundaries of the chitta.
21. On behalf of the respondents reliance was placed upon an ijara kabuliyat for three years executed by Ebadut the defendant No. 1 and two others in favour of plaintiffs in respect of the whole of the disputed lands including the lands of Suit No. 35 as appertaining to Taluk No. 6019. This was on the 17th November 1903. The circumstances under which it was executed are these. On the 27th August 1903 Ebadut and two others executed a kabuliyat in respect of the lands of both Schedules I and II in favour of the Sens, the owners of Touzi No. 6042. This was just before the batwara which took place in 1904. On the strength of the said settlement they cut down some gajari trees from the land, when the plaintiffs objected to the same on the ground of the land being included within Dag No. 372, and Ebadut and others thereupon paid Rs. 25 as the price of the gajari trees already cut down, and Rs. 275 for the remaining trees and executed the kabuliyat in favour of the plaintiffs admitting the lands to be within plaintiff's Taluk No. 6059. It was stipulated in the kabuliyat that if any suit be instituted in the Civil Court, the owners of No. 6059 (the lessors) would have to take steps and pay the costs.
22. It appears that on the 25th March 1896, one Madhu Khan executed a kabuliyat in favour of the Sens in respect of the lands of Schedule II as part of their Taluk No. 6042 describing Kholar Baid as the eastern boundary. This was about eight years before the batwara proceedings in which certain portions of Schedule II lands were excluded. They were included in the kabuliyat of 1896 as part of Taluk No. 6042. The learned Subordinate Judge does not notice this document. The defendant Ebadut denied execution of the kabuliyat dated the 17th November 1903 in favour of the plaintiffs, which, no doubt, is false, and the map annexed to the kabuliyat bears out the plaintiff's case. But so far as the owners of No. 6042 are concerned there is, as stated above, the kabuliyat dated the 25th March 1896 executed by Madhu Khan in respect of the lands of Schedule II, (not noticed by the Court below) about eight years before the batwara proceedings. There is the other kabuliyat executed by Ebadut shortly before the batwara, and it was only after the plaintiffs objected to the cutting of gajari trees under that kabuliyat that Ebadut and others attorned to the plaintiff under the kabuliyat dated the Nth November 1903. Ebadut appears to have acted in the matter for securing the land for himself and not in the interest of his masters.
23. Much reliance is naturally placed upon the map annexed to the kabuliyat dated the 17th November 1903 executed by Ebadut in plaintiff's favour. On behalf of the appellants the execution of the kabuliyat (and the map) is sought to be explained on the ground of mistake or misapprehension. It is pointed out by the learned Pleader for the respondents that the execution of the kabuliyat was wholly denied by Ebadut. That is so, and it is certainly false and at the same time foolish. But the argument advanced on behalf of the appellants is not a new one. It was set up in the partition proceedings. The Partition Deputy Collector in his order in the Objection Case No. 2 of 1905-05 considered the map and observed as follows: 'Ebadut explains it away by saying that he signed the map merely relying on the words of one Alakddim another executant in the deed. It can hardly be expected from a half-literate man like Ebadut that he would understand maps of this nature specially as the boundaries given in the kabuliyat do not show clearly up to what extent the lease has been taken. Ebadut executed another kabuliyat in favour of the proprietors of Bagerbari for the disputed chala clearly specified therein about two months before the execution of the kabuliyats in favour of the objector'. Then again the matter was considered in the settlement proceedings and no importance was attached to the kabuliyat.
24. Having regard to all these facts we are unable to attach any importance to the execution of the kabuliyat by Ebadut and the map annexed to the kabuliyat in favour of the plaintiffs in November 1903. Reliance was also placed on behalf of the respondents upon the Thak and Survey map; but the issue upon which the parties went to trial was 'does the disputed land appertain to Touzi No. 6019, and is the disputed land included in batwara plots Nos. 372 as alleged in the plaint. The discussion in the Court below also, as the judgment shows, proceeded mainly upon a comparison of the chitta dags.
25. We will now deal with the question whether the disputed lands are included in Dag No. 372 of the chitta. The boundaries of; Dag No. 372 are as follows:
North.--Dengua Kochir Ghuni.
South.--Kanchir Ghuni and the boundary of Two Ani's land Bagherbari jungle.
East.--Jani Sheik and Barachala Gajari, Jungle etc. Jungle Chala half of 500 1/2 nals. Eat tree within this chala.
26. The Court below finds that there is no dispute as to the identity of Dengua Kochir Ghuni on the north and Kanchir Ghuni on the south. The former commences at station 116 in the Commissioner's map and lies to the right of the line 113 to 116, and the Ghuni comprises Cadastral Survey Dags No. 844-847. Kanchir Ghuni commences at station No. 431 and lies to the left of the line from stations Nos. 431-437 and of the line from stations Nos. 439 to 431 and on both sides of the line from stations Nos. 437 to 439. The southern portion of this tract of land between the Dengua Kochir Ghuni on the north and Kanchir Ghuni on the south is in the possession of the plaintiffs and the northern portion was the subject-matter of another Suit (No. 37) the right to which has been settled by compromise. The case of the defendants is that Dag No. 372 lies between Dengua Kochir Ghuni on the north, Kanchir Ghuni on the south, Baid No. 2 on the west and Baid No. 3 on the east. The land between Baid No. 1 and Baid No. 2, is not the subject-matter of this litigation, though the defendants deny the plaintiff's right to it, and claim it as part of their Estate No. 6042 Bagherbari.
27. The real controversy, therefore, is about the western and eastern boundaries. The Western boundary of Dag No. 372 is described as Nabu Sheik, and the identity of this boundary relates to the lands of Schedule I of Suit No. 36. Schedule I consists of the Chal portion and the Baid to its east. The plaintiffs' case is that Nabu had land in Kanchir Baid just to the west of Schedule I land, while defendants say that Nabu's land lay in Baid No. 2 and that this is the western limit of plaintiffs' chala.
28. According to the defendants, Cadastral Survey Dag No. 584 is identical with Dag No. 430 of the Bagherbari chitta. Baid No. 1 is identical with Dags Nos. 431 to 434 of the said chitta and Cadastral Survey Dag No. 828 which lies between Baids Nos, 1 and 2 (not in suit) a part of which was shown in the partition proceedings as plaintiffs chala and of which the plaintiffs are admittedly in possession is identical with Dag No. 435 of the Bagherbari chitta.
29. The boundaries of Dag No. 430 of the Bagherbari chitta are as follows:
West--Dag No. 429 (described as jote. Kanchi Sheikh).
East--Patit, Hingu Mandal, and Darbari Bansi.
North--Boundary of Garhbari.
30. Now Cadastral Survey Dag No. 584 has, on the west Kanchi Baid, on the north Garhbari and on the south Kamakhya's debutter. So that the boundaries on three sides are identified. The learned Subordinate Judge also finds it, but he says: 'it is obvious that there may be other lands fulfilling these conditions'. There may be Kanchis elsewhere, for instance, Saham paper Ex. U describes Dag No. 315 as Jote Kanchi Sheikh but Kanchir Baid to the West of Schedule I must be Bagherbari. It is not contended that Schedule I extends to its west, and the respondents have not shown that any dag except No. 429 in Bagherbari is recorded in the name of Kanchi. However that may be, we do not find that there is any other land which lies between Garhbari on the north, Kanchir Baid on the west and Kamakhya's debutter on the south, nor is it suggested what other piece of lands fulfills all these 'conditions'. The defendants also attempted to identify Dag No. 430 with Cadastral Survey Plot No. 584 by other means. They say Cadastral Survey Plot No. 552 corresponds to Dags Nos. 369 and 400 which were allotted to Touzi No. 6045 (See Saham paper Ex. S) and were held by the tenant Niamat. The Settlement Khatian Ex. A shows that they are now held by Salim son of Niamat and appertain to No. 6045. Then the Cadastral Survey Plots Nos. 553 and 624 were fought to be identified with Chitta Dag No. 401 which has Kanchir Ghuni on the east. Dag No. 429 (Cadastral Survey plots Nos. 578 to 583) is Kanchir, Jote and Cadastral Survey plot No. 584 is thus identical with Dag No. 430. The learned Subordinate Judge says the 'argument is undoubtedly very plausible'. He is of opinion that 'it will not be quite unsafe to identify Cadastral Survey Dag No. 552 with Chitta Dags Nos. 399-400, and it may even be held that Cadastral Survey Dags Nos. 533 and 624 are identical with Chitta Dag No. 401'. But he does not accept the defendants contention because lie is of opinion that there is no connection between Dag No. 401 and Dag No. 429. He says 'an examination of the chitta, however, shows that after Dag No. 401, the chitta proceeded from at different place altogether from a distance from Dag No. 401 on the south-west side'; and again 'But Dag No. 401 is not connected with Dag No. 429 and it will be a mere assumption to say that Kanchir Baid is the land of chitta Dag No. 429. The elaborate argument to establish the identity of Cadastral Survey Dag No. 552 with Chitta Dags Nos. 399 and 400 even if well founded becomes unavailing, because there is no connection between Dag No. 401 and Dag No. 429. If Dag No. 429 is to be identified with land in Kanchir Baid, the basis for that would be simply this, namely. Dag No. 429 is described as Jote Kanchir Ghuni, Kanchi may have had land elsewhere and it will not be safe to presume from the description of Kanchir Jote that Dag No. 429 is identical with land in Kanchir Baid. In my opinion Dag No. 430 is not sufficiently identified with Dag No. 584'. It appears, however, from the original chitta that on the next day after the measurement of Dag No. 401, the Amin measured other Dags at some distance, viz., Dags Nos. 402 to 428, and then came back to Dag No. 429. The words in the chitta 'on the north-eastern corner of the preceding plot at a long distance' refer to Dag No. 428 to the south-west which was the last preceding plot and which was separated by a long distance.
31. It appears, therefore, that the conclusion at which Court below arrived that Dag No. 429 was not connected with Dag No. 401 was based upon a misconception.
32. Dag No. 431 (Cadastral Survey plot No. 585 the northern portion of Baid No. 1) is to the east of the preceding plot (Plot No. 534, i.e., Dag No. 430). Then Dag No. 432 (Cadastral Survey plots Nos. 586, 583 and 589) is to the past of 431. To the south-west corner of No. 422 is Dag No. 433 (Cadastral Survey plots Nos. 590, 591 and 592) and Dag No. 434 (Cadastral Survey plots Nos. 593 and 595) are to the south of No. 433. Dag No. 435 part of Cadastral Survey plot No. 828) is on the north-eastern corner of Dag No. 434. They appear so on the case map.
33. We will now consider the contentions of the learned Pleader for the respondents with respect to the lands of Schedule, I, some of which are based upon the findings of the Court below and of the Commissioner.
(1) That the parties directed the controversy to the question whether the land is in garhbari or in bagherbari, and the land being in garhbari according to the thak the defendants' contention, should not be entertained. But in the written statement (para. 6) the defendants stated that 'the Thak Authorities did not follow the batwara in any particular. Consequently the right and possession of the maliks who had Sahams of Mahal No. 130 and of their representatives cannot be determined by the Thak or Survey Map'. Then again the 7th issue upon which the parties went to trial was 'Does the disputed land appertain to Touzi No. 6019 and is the disputed land included in Batwara plot No. 372 as alleged in the plaint'. The Court below also in its judgment states: 'the point for determination in these cases is whether the lands claimed in these suits are covered by the plaintiff's Dag No. 372 of the Batwara Chitta of Garhbari.' It cannot, therefore, be said that the controversy was limited to the question of boundaries of two contiguous estates according to the Thak Map. As a matter of fact the owners of 6042 have plots of lands in Bagherbari as well as in Garhbari, see Saham papers Ex. T and, Ex. U.
(2) That the western boundary of Dag No. 372 is Nabu Sheikh and as Nabu's grandson holds one plot of land No. 575 in the baid on the west of Schedule I, he must be the Nabu mentioned in the chitta. The learned Subordinate Judge takes the same view. The plaintiffs examined one Amanulla, and the defendants examined Samed, both of whom are grandsons of Nabu. The former supports the plaintiff, and the latter says that to the east of the chala is called Nabu's Baid (Baid No. 2 according to the defendants). The learned Subordinate Judge disbelieves Samed as he described his grandfather as Nabi and not as Nabu but in the Settlement Khatian (Ex. 24) it is stated 'Jote Nabi Sheikh possessor Samed Ali Sheikh'. Amanulla holds only one plot (575; in Kanchir Baid but Kanchir Baid consists of plots Nos. 570 to 583 and the Court below finds 'whether it is called Baid or Ghuni the parties agree that it goes under the name of Kanchir.' The statement of Samed that Nabu's land is in Baid No. 2 is supported by the boundary of Dag No. 435 which, is described at being on the west of the land of Nabu Sheikh. Dag No. 435 corresponds to part of Cadastral Survey Dag No. 828. Nabu, therefore, is on the East of No. 828 and would be in Baid No. 2 (see the case map). In any case it is not established that Nabu mentioned in the chitta is in Kanchir Baid.
(3) That Dag No. 430 mentions only Kanchir Sheikh as the western boundary, and defendants say that Cadastral Survey plots Nos. 578 to 583 are Kanchir Dag No. 429. If so, only a portion of Schedule 1 land would be covered by the boundary as there are other plots to the south of plots Nos. 578 to 583 as the map shows. But all the land marks or lands on all the boundaries do not appear to have been given in the chitta. The plaintiffs at any rate cannot urge this objection because the northern boundary of Dag No. 372, Dengua Kochir Ghuni, does not exhaust the northern boundary. Besides the western boundary of Dag No. 430 is not separately mentioned. It gives only the direction with reference to the preceding plot and says 'on the east of the preceding plot' that plot being Kanchir.
(4) That the Police map (in a criminal case relating to some land of Schedule I) shows the whole Baid outside the disputed land on the west of Schedule I land as Kanchir Baid whereas the defendants now say that Nos. 578-583, i.e., the northern portion only as Kanchir Baid. But as the Court below finds these baids go by the names of the persons who first brought them under cultivation and it does not follow that the entire baid was held by Canchir at the date of the chitta.
(5) That Dag No. 429 (Cadastral Survey plots Nos. 578 to 583 Kanchir) has Hingu Mandal to its south, but defendants stated before the Commissioner that Hingu (Dag No. 397) is identical with Cadastral Survey plots Nos. 555-558 so that to the South of No. 578 would be Nos. 577 and not No. 555. The defendants say that Nos. 571 to 577 (Chitta Dag No. 396 is recorded in the name of Gogra so that Gogra Cadastral Survey plots Nos. 577 to 571 (Dag Nos. 396} and not Hingu Mondal plots Nos. 578-783 (Dag No. 429) would be to the south of Kanchir as in the chitta. This argument, however, proceeds upon the basis that the Cadastral Survey lines followed the lines of the chitta. The Dag No. 696 (Jote Gogra) has Hingu Mandal and Kanchi Sheikh on the north and the map shows that to the north of No. 577 is Nos. 778--783 (viz.,) Kanchir Baid and the western bifurcation is Nos. 558 to 555.
(6) That Dag No. 430 shows Hingu on the east and, therefore, Hingu cannot be identified with Cadastral Survey plot's Nos. 555--558 (397) which is on the west of No. 584. It appears, however, that not only Dag No. 397 but two other plots Chitta Dags No. 432 (Cadastral Survey plots Nos. 586 588, 589), and No. 433 (Cadastral Survey plots Nos. 590 591 and 592) are also recorded in the name of Hingu and they are on the East of No. 430 (Cadastral plot No. 581). The defendants want to fix Dag No. 430 in Cadastral Survey plot No 584 by its southern boundary shown in the chitta as Kamakhaya's debutter, and Cadastral Survey plot No. 2322 appears from the settlement record to be Kamakhya's debutter in the possession of Dharma Lochan Soshi Lochan and others.
(7) That No. 2322 recorded as Kamakhya Debutter in the Cadastral Survey cannot be the Kamakhya Debutter of the chitta because the chitta shows that Kamakhya Debutter is on the South of No. 394 which is described in the chitta as Chambalitolar Chala, and the Settlement Record shows that Chambalitolar Chala is Cadastral Survey plot No. 559 and, therefore, Kamakhya Debutter must be to the south of No. 559 at the time of the chitta and cannot be No.. 2322 which is now recorded as Kamakhya Debutter.
34. It appears, however, that Dag No. 390 of the Chitta is Chambalitolar Chala (Cadastral Survey plot No. 559) and Dag No. 394 is not Cadastral Survey plot No. 559 but Cadastral Survey plot No. 569. On the north of Cadastral Survey No. 559 is Cadastral Survey No. 552. The northern boundary of Dag No. 390 is recorded as Niamat Mandal, and Niamat Mandal's plot is recorded as Nos. 399-400 of, the chitta. The learned Subordinate Judge finds that Dag Nos. 399 and 400 corresponding to No. 599, and Dag No. 394 corresponds to Cadastral Survey No. 569 which also is Chambalitolar and Jungle Chala. The defendants' witness No. 6 Soshi Lochan mentions his debutter as being situated on the south of the disputed land. Dag No. 282 Kamakhya Debutter is cultivated land and there is no place for cultivated land to the south of Cadastral Survey plot No. 559.
(8) That Nabu Sheikh cannot be in Baid No. 2 because Brindaban plaintiffs Chala was mentioned in the map. That is in plaintiffs favour. On the other hand as stated above Chitta Dag No. 435 corresponding to Cadastral Survey plot No. 828 is west of the land of Nabu Sheikh, and that would go to show that Nabu is in what defendants call Baid No. 2.
(9) That in the partition proceedings the final order of the Collector dated the 6th December 1907 was in favour of the plaintiffs. As already stated the peshkar Sarat Chandra Roy reported that the lands were in the possession of the owners of No. 6012 through ijaradars and tenants and that the latter 'used to pay rent of these lands from along time'. Another peshkar Kailash Chandra Roy also was of opinion that possession is' undoubtedly with the proprietors of the No. 60-12 and the lands should be treated as lands of Bagherbari. We have referred to the report of the Deputy Collector who agreed with the peshkars. The Collector in his order dated 6th December 1907 stated 'From the evidence and from reports of the peshkar and Deputy Collector, it seems clear, that lands so far as they are in possession of any one are in possession of tenants of; the parent estate. The Thak boundary shows about half of the land to be in Garhbari, but the Thak has been found by the amin to be incorrect. The revenue Survey boundary shows the whole plot to be in Garbari. The greater part of this land is uncultivated forest as regards which both sides claim to have exercised the right of giving leases for cutting timber. The parent estate seems to have been in possession of certain plots of land a very small fraction of the whole but even though these may possibly have been in possession of the parent estate for over 12 years, I do not think this will cause the objector's claim to the whole stretch of land untenable under Section 88 of Act V of 1897. I have, therefore, no course but to strike the partition case off the file which will accordingly be done'. In these circumstances the partition proceedings cannot help the plaintiffs and if they show anything, they show that the lands were in possession of the owners of No. 6042 so far back as 1906 and even if plaintiffs were in possession for short periods through ijaradars the Record of Eights shows the defendants in possession.
35. For all these reasons we are of opinion that plaintiffs have failed to locate Nabu in Kanchir Baid, and we think that lands of Schedule I are not included in Chitta Dag No. 372, of Garhbari.
36. We now come to the lands of Schedule II The eastern boundary of Batwara Dag No. 372 as stated above, is Jani Sheikh Bara Chala Gajari Jungle, etc., Jungle Chala, half of 500 1/2 nals.
37. The parties are not agreed as to the position of Jani Sheikh. The case for the defence is that Baid No. 3 of which the southern part is portion of this schedule is the baid where Jani had land and that it forms the eastern boundary of plaintiffs' Dag No. 372. The plaintiffs, on the other hand, tried to locate it in the baid, to the east of Cadastral (Survey Plot No 2135 But that baid (plots Nos. 2131 to 2142) is admittedly Kholar Baid. Now Jani is mentioned in Dag No. 291 as the western boundary of Bara Chala belonging to the defendants. The Court below observes 'if this Jani Sheikh be identical with Jani named in Dag No. 372, then, to locate Jani in the Kholar Baid would lead to the exclusion of much land that is admittedly part of Bara Chala. But they may not be identical in which case the consideration just mentioned would not apply'. It has not however, been shown that they are not identical. The learned Pleader for the respondents contends that the only reason 'assigned by the Court below for not accepting the plaintiffs' case as to Jani Sheikh being in Kholar baid is that if that were accepted some portion of Bara Chala which is admittedly in possession of the defendants would be excluded; and he suggests that the defendants might have over-stepped the boundaries of Dag No. 291 (as pointed out by the plaintiffs) by taking possession of lands to the north-west of the place where Jani Sheikh is located by the plaintiffs. This suggestion, however, is not borne out by the evidence and does not seem to be a probable one because the original homestead of the Bansis stood on the west of the Chala of Dag
38. The Court below observes: 'In this connection it will be borne in mind that that part of Baid No. 3 which is included in Schedule II of land of Suit No. 36 is identical with Dag No. 15 in map Ex. 12, and the plaintiffs' claim to it was overruled by the Collector in 1905, and since then the plaintiff did nothing to contest that finding by the Collector'. The conclusion arrived at by the learned Sub-Judge about the eastern boundary is as follows: 'In my opinion Jani should be located in Baid No. 3. and this baid should be taken as the Eastern 'boundary of part of the plaintiff's Dag No. 372, I mean the plaintiffs' land between Baid No. 1 and Baid No. 3 as Bara Chala is the Eastern boundary of that part of plaintiffs' Dag No. 372 which is the North-Western and the middle part of Schedule II land of Suit No. 36. This, of course, does not exhaust the whole Eastern boundary. If my interpretation of Dag No. 373 of Ex. 15.be correct then that will show that the plaintiffs' land extends up to Nagar Mandal's Ghuni and would cover the remaining part of Schedule II land of Suit No. 36, and the subject-matter of Suit No. 35'. The learned Subordinate Judge does not locate Jani Sheikh in Kholar Baid but in Baid No. 3 but he is of opinion that Baid No. 3 is the eastern boundary of only the northern part, and Bara Chala is the eastern boundary of the middle portion of Dag No. 372. According to the Subordinate Judge, therefore, there are two eastern boundaries. It is contended on behalf of the appellants that the two eastern boundaries are not contiguous; they are at a considerable distance from each other; and that it is not at all likely that in such a case two such boundaries should be given. Ordinarily two such boundaries on the same side would not be given, but cases may be conceived where the land is irregular in shape, and extends up to a certain place on the north eastern side, and to another place on the south eastern side. In such cases two boundaries must necessarily be given, though the two places may be at considerable distance from each other.
39. The greater portion of Schedule II lands have Bara Chala on the east. The defendants say that the lands of Schedule II are identical with Chitta Dag No. 291 known as Bara Chala. The boundaries of Dag No. 291 are as follows:
E.--Kholar Baid, Jote Saleh Pahalwan's Ghuni Guzari Chitta Jungle etc.
S.--Nagar Mandal's Ghuni.
40. Jani Sheikh, as already stated, is in Baid No. 3, Kholar Baid is in Nos. 2131 to 2142, but both the Commissioner and the Court below have found that plots Nos. 2139 and 2140 are Saleh Pahalwan's land. That finding appears to be correct, and that being so, Bara Chala is not confined to Kholar Baid, but extends up to Saleh- Pahalwan. Then the material point is the position of Nagar Mandal's Ghuni. The plaintiffs' case is that it is between Dags Nos. 372 and 373. The defendants pointed out Nos. 2611, 2612, 2613 as Nagar Mandal's Ghuni. The Court below finds that they are not, and that the whole of the belt encircling plot. No. 203 is Nagar Mandal's Ghuni. The learned Pleader for the respondents referred to the evidence of the witnesses Madhu Khan, Ebadut and Samed. The first stated that Nagar Mandal's Ghuni commences from the south of Kholar Baid, runs towards the east, then south, then west. The second says that Nagar Mandal's Ghuni goes from the south and proceeds towards north-west towards Bara Chala on its southern side. According to Samed Ali, Nagar Mandal's Ghuni is to the north of Bara Kutir Chala.
41. Dag No. 373 is described as Bara Kutir Chala. This Bara Kutir Chala (Dag No. 373) according to the plaintiff is Cadastral Survey plot No. 218, and it has been so found by the Court below. According to Budhai witness No. 7 for the defendants, 'Barakutia Chala' is to the east of Guptas Chala, and according to the Statements of the defendants recorded in the field book 'the Gajari Chala pointed out by the plaintiffs as appertaining to the land claimed in Suit No 35 is a Chala within Touzi No. 652 commonly known as Gupta's Chala'. That goes to support the finding of the Court below with Regard to the position of Bara Kutir Chala being in Cadastral Survey plot No. 218, On behalf of the appellant, it is contended that according to the field book it should be to the east of Nos. 2611 to 2618 (i.e., Nagar Mandal's Ghuni).' But even if Dag No. 373 is where defendants locate it, it has according to the copy of Chita (Ex. 15) Nagar Mandal's Ghuni and Dag No. 372 to its west. That being so, the southern portion of the lands in dispute in Schedule II of Suit No. 36 would fall with Dag No. 372. On behalf of the appellants reference was made to another copy of the Chitta Ex. A (16) in which the western boundary of Dag No. 373 is thus described: 'On the east of the preceding plot (Dag No. 372) separated by another plot and on the east and southern corner of Nagar Mandal's Ghuni'. It is contended that according to this copy Dag No. 373 is separated from Dag No. 372 by another plot, and that is Dag No. 291. The copy Ex. 15 was produced by the defendants but marked as an Exhibit by the plaintiffs, while the copy Ex. A (16) was produced by the plaintiffs but marked as an Exhibit by the defendants. Of the two copies the Court below preferred the former for the reasons stated in its judgment, and we have, proceeded upon its basis in put decision with regard to the lands of Schedule I. We think, therefore, that we should go by the copy Ex. 15. As stated above, according to that copy Dag No. 372 is to the west of Dag No. 372 Bara Kutir Chala, and the southern portion of the Schedule II lands are, therefore, included in Dag No. 372.
42. As to the middle portion of the Schedule II lands, it was not even claimed by the owners of No. 6042 in the partition proceedings in 1904-05. We, have not attached any importance to the orders in the partition proceedings as they evidently were based upon possession, and as the defendants have the later settlement record in their favour. But the fact that the owners of No. 6042 did not even claim the middle portion of the Schedule II lands when the estate was going to Be partitioned is a very important circumstance in favour of the plaintiffs. We, therefore, see no sufficient reasons for differing from the conclusion arrived at by the Court below.
43. We now come to the land of Suit No. 35 which is Cadastral Survey plot No. 203. This plot was not the subject-matter of the partition proceedings, as it is claimed not as part of No. 6042 but of No. 6052. It is said by the defendants to correspond to Dag No. 368 of the Garhbari Chitta. The learned Subordinate Judge observes: 'It would seem that the defence does not rely so much upon their ability to establish the identity of Cadastral Survey Dag No. 203 with Dag No. 368. What they hope to do is to establish that Schedule. II land of Suit No. 36 is covered by their Bara Chala, the result of which would be that the plaintiff would have no land to the east of Baid No. 3. For the defence did not mention in the written statement that the subject-matter of the Suit No. 35 was their Dag No. 365. Nor was the Commissioner asked to compare the Chitta with the locality and find whether Cadastral Survey Dag No. 203 is identical with Dag No. 368 of the Garhbari Chitta. It may be that before the return of the Commissioner from the locality, but after the measurement was over a statement was made on the side of the defence, that such and such land is identical with such and such a dag of a particular chitta. This might have sufficed to give notice to the plaintiff as to the case that would be made at the hearing. But the Court has not the benefit of a comparison of the locality with the dag mentioned and the benefit of the Commissioner's opinion on the point. This has caused a good deal of difficulty to the Court, and the complaint on the plaintiff's side is not without foundation. Turning now to Dag No. 368, it is quite clear, that Dag No. 369, which is Nagar Mandal's Ghuni is not contiguous to Dag No. 368. But if the evidence was well-founded, Dag No. 368 would be contiguous to Dag No. 369. Further, Dag No. 369, that is, Nagar Mandal's Ghuni at same distance from Dag No. 268, and is to the south-west of Dag No. 368. Now a small part of the Ghuni may be to the contiguous south-west of a part of Cadastral Survey Dag No. 203, but the description of Nagar Mandal's Ghuni as being at some distance and to the south-west of Cadastral Survey Dag. No. 203 would, be quite inappropriate, indeed untrue. Thus, I have no doubt that Cadastral Survey Dag No. 203 is not identical with Dag No. 368 of Garhbari Chita, and the defendant's case on this point certainly fails.'
44. We agree with the observations of the learned Subordinate Judge and hold that the identity of the lands of Chitta Dag. No. 368 with Cadastral Survey plot No. 203 is not established.
45. The result is that Appeal No. 267 is dismissed with costs and Appeal No. 110 ia allowed in part. The decree of the Court below will be modified. The plaintiff's claim will be dismissed with respect to the lands of Schedule I of Suit No. 36 and in respect of any portion of the land of Schedule II which may be found to form part of Dag No. 15 of Map of Ex. 12, and will be decreed with, respect to the rest of the lands of Schedule II. The identity of the said land of Dag No. 15 of map Ex., 12 will be determined in execution. Each party will bear their own costs in both Courts in Appeal No. 110.
46. In Appeal No. 267 we assess the hearing fee at Rs. 50 only.
47. In Appeal No. 110 of 1922 the plaintiffs will get Rs. 100 as mesne profits for the portion of the lands decreed.