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Rani Amrita Sundari Debi Chowdhurani and ors. Vs. Munsi SherajuddIn Ahamed Chowdhury and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1915Cal464,29Ind.Cas.156
AppellantRani Amrita Sundari Debi Chowdhurani and ors.
RespondentMunsi SherajuddIn Ahamed Chowdhury and ors.
Cases Referred and Jogendra Nath Roy v. Baladeo Das Manoari
Excerpt:
chur land formed in bed of river - consent decree, nature of, how far binding--consent decree and compromise, compared--contract of parties, nature of--head of family, decree against, how far binding--map drawn for a different purpose, how far affects rights of property--survey map and thak map distinguished--submerged lands, possession of, presumption of--limitation--adverse possession--constructive possession does not apply to a wrong-docr. - 1. the subject-matter of the litigation, which has resulted in this appeal, consists of a large tract of land, included in a ckur formed in the bed of the river ganges, called also kirti nasha, in the district of faridpur. the land is described in the plaint as comprised within three sets of boundaries which constitute three distinct parcels ka, kha, ga. the areas of the parcels were stated approximately in the plaint as 10 kanis (=90 bighas), 3 drones (=432 bighas) and 15 1/2 drones (=2232 bighas) respectively. on measurement, however, the aggregate area of the first two parcels has turned out to be 347 bighas, and the area of the third plot 4221 bighas. the case for the plaintiffs is that the disputed lands are included in estate no. 5603 of the faridpur collectorate, held in patni by.....
Judgment:

1. The subject-matter of the litigation, which has resulted in this appeal, consists of a large tract of land, included in a ckur formed in the bed of the river Ganges, called also Kirti Nasha, in the District of Faridpur. The land is described in the plaint as comprised within three sets of boundaries which constitute three distinct parcels ka, Kha, ga. The areas of the parcels were stated approximately in the plaint as 10 kanis (=90 bighas), 3 drones (=432 bighas) and 15 1/2 drones (=2232 bighas) respectively. On measurement, however, the aggregate area of the first two parcels has turned out to be 347 bighas, and the area of the third plot 4221 bighas. The case for the plaintiffs is that the disputed lands are included in estate No. 5603 of the Faridpur Collectorate, held in patni by them under the proprietors. They allege that the lands are partly re-formation on the site of, and partly accretion to three mouzas Bhaga Chur, Chur Datali, and Chur Lasti also called Chur Bhaga. The churs were measured in the course of thak proceedings in the year 1859 and were subsequently measured by way of survey during the following year. The plaintiffs further assort that in 1879, as a consequence of a dispute about the possession of some of the lands of these iliurs, a suit was instituted by their prede-cessors-in-interest against persons now represented by the defendants. In the course of this litigation, it is said, the lands were measured, and a decree made by consent of parties. The plaintiffs found their title to the disputed lands on the thak map of 1859, the survey map of 1860 and the consent decree in the suit of 1879. The immediate occasion for the institution of this suit is stated to be a dispute as to the possession of the land which culminated in a proceeding under Section 145 of the Criminal Procedure Code. The dispute related to plot ka and kha and an intervening strip of land. The Magistrate held; on the 8th March 1905, with regard to plots Ito and Ma that neither of the disputants was in possession, and accordingly made an order for attachment under Section 146 of the Criminal Procedure Code. As regards plot ga, the plaintiffs allege that the defendants wrongfully took possession of it on its re-appearance in 1899 after diluvion. The plaintiffs on these allegations pray for declaration of their title to the disputed lands by way of re-formation on the original site of, and contiguous accretion to, the three motizas Bhaga Chur, Chur Datali and Cliur Lastias eomprisedwithin the thak and survey boundary lines, and within the lines of the decree in the suit of 1879; the plaintiffs also claim title by adverse possession for the statutory period. They seek to recover possession by ejectment of the defendants as trespassers and claim mesne profits as also the sum in the custody of the Collector as the surplus profits of the land attached by the Magistrate. The defendants resist the claim, on the ground that the plaintiffs have no title in the disputed lands, and that, if they had any title, it has been extinguished by operation of the law of limitation. The defendants may be grouped into two classes: one set claims part of the lands as included in mama Nemua, also called Sakhipura, which appertains to estates No. 996-67; the other set claims a portion of the lands as included within mouza Tarabunia comprised in estate No. 9670. The proprietors of Sakhipura also repudiate the consent decree in the litigation of 1879 as not conclusive upon the question now in controversy. The Subordinate Judge has, upon an examination of the voluminous evidence on record, both oral and documentary, decreed the claim in part. He has found in substance that the thak line has not been correctly delineated by the amin and cannot consequently be made the foundation for a decree he has also found that the survey line has been correctly delineated by the amin and was inaccurately relaid on the map prepared in the suit of 1879; but he has held that the parties are bound by the delineation of the boundary on that map to the extent it goes. The Subordinate Judge has accordingly, taken an the boundary of the mouzas claimed by the plaintiff's, a composite line consisting partly of the survey boundary, partly of the boundary line on the map in the suit of 1879 and--these two lines are not conterminous partly also of an imaginary line drawn from east to west to connect their ends. In this view the Subordinate Judge has dismissed the claim for plot ka, has decreed to the plaintiffs 213 bighasi 15 cottahs out of plot Ma and 1905 bighas, 12 1/2 cottahs out of plot ga. It may be added that the suit has failed in respect of all lands claimed by the proprietors of Tarabunia as included within their estate.Tbe defendants, proprietors of Sakhipura and claimants under them, have appealed to this Court. On their behalf, the decree of the Subordinate Judge has been attacked, on the ground that the plaintiffs are entitled at least to all lands included within the lines of the thak survey of Bhaga Chur, Chur Datali and Chur Lasti or Chur Bhaga. It has further been argued that the claim is barred by limitation in respect of all lauds situated beyond the thak boundaries of these villages, even if the plaintiffs are able to establish a title thereto. The plaintiffs-respordents, the proprietors of Bhaga Chur, have preferred a cross-appeal which is directed both against the appellants, the proprietors of Sakhipura, and the respondents, the proprietors of Tarabmiia. The objections in support of the cross-appeal against these two sets of persons are based on distinct grounds; against the proprietors of Sakhipura, it has been urged that the plaintiffs are entitled to more lands than what have been decreed to them as included within Bhaga Chur; as against the proprietors of Tarabunia it has been argued that the plaintiffs have acquired a good title by adverse possession. On these arguments, two questions emerge for consideration, viz., those of title and possession. As regards the question of title, the points winch require examination may be formulated as follows: viz., first, does the map prepared in the litigation of 1879 conclude the controversy in this suit either entirely or partially; secondly, is this question be answered in the negative, should a decree be made on the basis of the thak map as delineated on the case map in the present suit; and thirdly, if the point last mentioned be not answered in the affirmative, should a decree be made on the basis of the lines of the survey map as reproduced on the case map? It is plain that the substantial question in controversy relates to the scope of the suit of 1879, and the effect of the decision therein upon the points now in dispute, and we shall first examine the elaborate arguments which have been addressed to us on this part of the case; but for the correct appreciation of the points raised, it is essential to give a brief outline of the antecedent dispute between the parties regarding the subject-matter of this litigation.

2. In 1859, the officers in charge of the thak proceedings measured the lands comprised in Chur Bhaga, Chur Datali, Chur Lasti, Chur Sakhipura and Chur Tarabunia. In the following year, the lards were re-measured and fresh maps prepared by the survey authorities. The parties were then in controversy as to a large tract, 16d odes or 2,300 bighas in area, which was shown by the thak authorities as situated within Sakhipura. Two suits were thereupon instituted in respect of this land, one on the 1st August 1863 by a lessee under the proprietors of Chur Bhaga, the other on the 13th January 1864 by the proprietors of Chur Sakhipura. The plaintiff in the former case prayed for a declaration that the lands had been erroneously held by the Board of Revenue on the 3rd August 1860 to be included within Sakhipura, and that they were really included in Chur Bhaga; he asked accordingly that his possession therein might be confirmed. In the second suit the plaintiffs prayed for a declaration that in a possessory suit under Act IV of 1840, decided on the 31st January 1861 by the primary Court and on the 21st March 1861 by the Court of Appeal, the then defendants had been erroneously held to be in possession of those lands and that consequently they might be ejected therefrom. An endeavour has been made, in the present litigation, to locate the lands then in dispute, but the attempt has proved fruitless. This much can be affirmed with some approach to certainty that the lands were situated-towards the southern part of what is known as Chur Bhaga, but the northern boundary of the disputed plot cannot be located. The reason for this is obvious: the tract has been more than once swept away completely by the action of the river, and it is not practicable to identify the places mentioned in the boundaries as given in the schedules to the two plaints. The northern boundary as given in the plaint of the suit instituted on the 1st August 1863 by Kali Kishore Chatterjee, then lessee from the proprietors of Chur Bhaga under whom the plaintiffs claim, is obviously too vague to admit of identification. The northern boundary as given in the plaint of the suit instituted on the 13th January 1864 by the proprietors of Sakhipura, the predecessors of the defendants, is more precise, but is of no greater use for purposes of identification. There is no reliable evidence as to the northern boundary of Shajanpur mentioned therein. We know nothing about the size and situation of Shajanpur in 1863. We are not unmindful that a Shajanpur is mentioned in Exhibit 67 prepared in 1878 when the lands had re-formed after deluvion; but it cannot safely be assumed that what is called Shajanpur in the map of 1878 is identical in size and situation with the village of that name mentioned in the plaint of the 13th January 1864. Even if the identity were assumed, however, it would be of no assistance, for the obvious reason that the map does not show the boundaries of Shajanpur; we have nothing beyond the name on the map of 1878. We must hold accordingly that the northern boundary of the lands in dispute in the cross suits of 1863 and 1864 cannot now be definitely located. There is this additional difficulty that as the arpa of the disputed land covered only about one-seventh of Chur Bhaga, it cannot be located in the absence of information as to the precise position of the northern boundary of the disputed plot; so that we must proceed only on the basis that the lands were situated in the southern portion of Chur Bhaga. The suits were tried together in the Court of first instance, and on the 10th September 1864 the Principal Sadar Amin decided in favour of the lessee under the proprietors of Chur Bhaga. On appeal, this decision was reversed by the District Judge on the 10th June 865. He held in substance in favour of the proprietors of Sakhipura that the boundaries had been correctly determined by the thak authorities, and directed that they be restored to possession. There is no tangible evidence on the record to show the course of events after the termination of these litigations, in which the correctness of the boundary, as determined by the thak authorities, was directly challenged and ultimately upheld. The lands, it appears from the evidence, were washed away and were reformed, and in 1879 another litigation commenced between the parties. The nature and scope of the dispute, if any, immediately antecedent to the institution of that suit do not transpire from the evidence on the record, though the plaint refers to a possessory order by the Criminal Court on the 31st May 1876 and also mentions other disputes. The suit was instituted by the present plaintiffs or their predecessors for recovery of possession of 8 1/2 drones or 1,224 bighas of chur land, alleged to be situated in Chur Bhaga, as also of a share of Chur Sakhipura (Exhibit 17). The claim was made against defendants, who along with other persons are defendants in the present litigation. The suit was commenced on the 5th March 1879 and a decree was made, apparently by consent of parties, on the 4th June 1880. As a result of this compromise, the then plaintiffs recovered 4 Jean is of land, i.e., 1/34th of the total quantity of lands claimed in the plaint. The compromise was based on a private map prepared by an amin other than the amin appointed by the Court to survey the locality. This map depicts a portion of the boundary between the villages Chur Bhaga and Chur Sakhipura but the map gives no indication whatever as to the position either of the disputed lands (8 1/2 drones in area) or of the lands decreed (4 kanis in area). The plaintiffs in this case have made a strenuous endeavour to support the conclusion that the boundary between Chur Bhaga and Chnr Sakhipura, as demarcated in that suit, is conclusive between the parties, while the defendants have attacked the validity of the compromise and the decree based thereon on a variety of grounds. Before these grounds of attack are examined, two propositions may be treated as incontestable. In the firsts place, there is high authority for the proposition that a consent decree is just as binding on the parties thereto as a decree after a contentious trial: In re South American and Mexican Co. (1895) 1 Ch. 37 : 64 L.J. Ch. 189 : 12 Rule 1 : 71 L.T. 594 : 43 W.R. 131, The Bellcairn (1885) 10 P.D. 16 : 55 L.J. Adm. 3 : 63 L.T. 686 : 34 W.R. 55 : 5 Asp. M.C. 503; Nicholas v. Asphar 24 C. 236; Rajlakshmi Dassee v. Katyayani Dassre 12 Ind. Cas. 464 : 38 C. 639 at p. 674. In the second place, it is equally well settled that a consent decree cannot have greater validity than the compromise itself. As was observed by the Court of Appeal in Huddersfield Banking Co. v. Lister (1895) 2 Ch. 273 : 64 L.J. Ch. 523 : 12 Rule 331 : 72 L.T. 703 : 48 W.R. 567 the real truth of the matter is that a consent order is a mere creature of the agreement, and that if greater sanctity were attributed to it than to the original agreement itself, it would be to give the branch an existence which is independent of the tree. To use the language of Kay, L.J., the consent order is only the order of the Court carrying out the agreement between the parties: Rajlakshmi v. Katyayani 12 Ind. Cas. 464 : 38 C. 639 at p. 674; Kshetra Moni Dasi v. Amodini Dasi 10 Ind. Cas. 611 conversely as was said in Wentworth v. Bullen 9 B. and C. 840 : 33 R.R. 353 : 9 L.J. (O.S.) K.B. 33 : 109 E.R. 313 the contract of the parties is not the less a contract and subject to the incidents of a contract, because there is superadded the command of the Judge. Keshab Pandas Bhobani Panda 21 Ind. Cas. 538 : 18 C.L.J. 187. The consent decree of the 4th June 1880 has consequently as much validity as and no greater validity than the agreement, if any, between the parties to which it purports to give effect. The appellants, the proprietors of Sakhipura, have denied that the decree in the suit of 1879 concludes the controversy in this litigation on five substantial grounds, namely, first, that the litigation was not bona fide; secondly, that the settlement was not made with the authority of the Sakhipura proprietors; thirdly, that all the parties to thepresent suit were not parties to the earlier suit and are not bound by the compromise; fourthly, that the compromise decree has not been recognised and acted upon; and fifthly, that no question of settlement of the boundary between Bhaga and Sakhipura fell within the scope of that suit and none was determined by the decree made therein.

3. In support of the first of these objections, reference has been made to the proceedings in the suit of 1879, and the execution of the decree made therein. The plaint was filed on the 14th March 1879, as appears from the order sheet in the suit (Exhibit 83). On what date the proprietors of Sakhipura, who were some of the defendants, entered appearance, cannot be determined from the materials on the records; but that some of the defendants must have entered appearance on or before the 5th April 1879, is shown by the fact that on that date the suit was adjourned for compromise on the application of both sides. This, circumstance is a matter for legitimate comment. If there was a real dispute between the parties, which had culminated in the institution of the suit by the plaintiffs, it is hardly probable that the parties would forthwith negotiate for a settlement, specially when we find, as will presently appear, that the claim was grossly exaggerated and rested on no solid foundation. On the 16th May 1879, the case was again adjourned for compromise, though up to this stage no written statement had been filed by any of the defendants. On the 16th June 1879, the defendants tiled their written statement (Exhibit 22) in which mention was made of the proposal for compromise, and the failure of the parties to effect a settlement as the lands were under the flood. The written statement then proceeded to controvert ail the allegations of the plaintiffs. This written statement was verified by one Bam Kishore Sen, a mukhtar of the then defendants. From the orders recorded in the order sheet on the 16th June, 25th June and 21st July 1879, it appears that the summonses in the suit had not even then been served upon all the defendants but the order of the 12th August possibly implies that the case was then ready for trial. The issues were fixed on the 22nd August but no copy thereof is available as the major portion of the record has been destroyed. Steps were then taken for the appointment of an amin for local investigation his fees were deposited by the plaintiffs in due course and a writ for local inquiry was issued on or about the 21st November 1879. Thereafter, the case was adjourned from time to time on several occasions, as the amin had not completed his inquiry and returned the papers. On the 25th May 1880, the case was directed to be put up on the 4th Juno following, as the amin had not even then sent the papers and also in view of compromise.' On the 2nd and 3rd June 1980, two petitions were presented, one on behalf of the plaintiffs, the other on behalf of the defendants, Exhibit 18 (1) and Exhibit 18 (2). These petitions were couched in much the same terms, were signed by the respective Pleaders and set out the terms of settlement. The recitals disclosed for the first time that the lands had been surveyed by a man named Ram Charan Bose, who had prepared a map on the 28th January 1880 and that the plaintiffs were entitled to 4 kanis out of the disputed lands as included within Bhaga, which lay on the left hand side of the line drawn from post 1 to post 44 on the map, while Sakhipura lay to the right hand side of that line. These petitions were laid before the Court on the 4th June 1880, when it was ordered that the suit be decreed in accordance with the terms of the compromise filed and the amin was directed to return the papers without taking up the work of local investigation (Exhibit 84). A decree was subsequently drawn up on the basis of this order (Exhibit 59). The manner in which the alleged settlement was notified to the Court has been criticised with some severity on behalf of the appellants. It has been argued with considerable force that if, as a matter of fact, Ram Charan Bose was, at the instance of both the parties, engaged openly in the work of local investigation and preparation of a map, it is difficult to understand why the information should be withheld from the Court and the erroneous impression deliberately created and steadily maintained for many months that the amin appointed by the Court, whose fees had been duly deposited, was engaged in investigation. No intelligible explanation has been offered why, after Ram Charan Bose had actually finished his map on the 28th January 1880, the Court should still be misled. It has consequently been suggested, not altogether without plausibility, that the entire proceedings in the suit are not free from suspicion. Stress has also been laid on the circumstances that Ram Kishore Sen, who verified the written statement of the Sakhipura proprietors, acted also as the mukhtar of their adversaries in various matters, and it has been suggested that in the present instance he betrayed his employers. In this connection, attention has been invited to the proceedings in execution of the compromise decree, which, it has been urged, are as much open to adyerse comment as the proceedings in the suit itself. On the 18th August 1880, the decree-holders applied for execution of the decree of the 4th June 1880 (Exhibit 20 and Exhibit 60). In this application they prayed that they might be put in possession of the decreed lands, i.e., the 4 kanis which they had obtained under the compromise. Several months were lost, either because the writ had not been put in or the fees of the amin not paid. Thereafter the writ was issued, and the 28th February 1881 was fixed for its return. On that date, as also on the 23rd March 1881, we find it recorded that the papers about delivery of possession had not been received back. On the 26th April 1881, we find it noted that the amin had put in the papers; but the order does not state whether the delivery of possession had been effected. We find, on the other hand, that the decree-holders were directed to take proper steps, and the case was adjourned to the 30th April. On that date, the case was struck off as the decree-holders had taken no steps. The appellants contend that this indicates that possession was never delivered, and they lay stress on the fact that as neither the map nor the decree gave any indication of the boundaries of the 4 kanis decreed to the plaintiffs, it was not possible for any amin to effect delivery of possession. The respondents, on the other hand, rely upon the oral evidence of their witness Ananda Chandra Bose; ho alleges that possession was delivered by a Civil Court amin, Nanda Kumar Dutta, who fixed wooden posts on the ground as boundary marks, and adds that this took two days only. This witness is supported by Janaki Nath Dutta and Chandi Manjhi; but it is impossible to test their veracity as the lands were admittedly diluviated after 1881 and the alleged boundary marks could not be expected to survive the flood. But it is a matter for legitimate comment that if the delivery of possession was effected in the course of two days, the facts that the papers relating to delivery of possession were not returned for three months and even thereafter the decree-holders were called upon to take proper steps, require explanation; none has been offered. It is consequently-plain that although it may not be possible for the Court to hold affirmatively that the compromise decree in the suit of 1879 was obtained by fraud, the proceedings both in the suit and in the execution of the decree are full of unexplained difficulties and are calculated to excite grave suspicion as to their bona fides.

4. In support of the second objection it has been urged by the appellants that the settlement in the suit of 1879 is not shown to have been made with the authority or even with the knowledge of the Sakhipura proprietors. The written statement on their behalf was, as already stated, not verified by any of the parties themselves; it was verified by their agent, Ram Kishore Sen, who had in various matters acted as the mukhtar of their opponents. It is neither alleged nor proved that Bam Kishore Sen was authorised by his principals to bind them by a compromise. Nor has the position been taken up that the Pleaders engaged to conduct the defence were authorised, by the valtalalnama originally filed, to compromise the case. It has not also been argued that in the absence of authority expressly conferred on a Pleader he is competent to bind his client by a compromise. Consequently we need not determine, whether a Pleader can bind a client by a compromise of the suit unless he is specially authorised in that behalf a question upon which judicial opinion has not been uniform: Dighijoy Roy v. Ata Rahaman 15 Ind. Cas. 156 : 17 C.W.N. 156. The plaintiffs, on the other hand, sought to prove that at the time when the settlement was effected, a fresh vakalatnama was filed in which the terms of the compromise were recited. The evidence of Ananda Chandra Bose on this point is not convincing; there is no satisfactory explanation of his presence on the occasion or why he should have read the vakalatnamas alleged to have been filed by both the parties; it is also a matter for comment that he should remember, after the lapse of thirty years, that the terms, if any, set out on the vakalatnamas were identical with these now found to have been inserted in the petition presented to the Court. No doubt, there is a presumption in favour of regularity of the proceedings in Court. But in the circumstances of this case, the plaintiffs cannot be deemed to have proved beyond all reasonable doubt that the compromise in the suit of 1879 was effected with the authority of the proprietors of Sakhipura.

5. In support of the third objection, it has been urged that some of the defendants were not parties to the suit of 1879, and they, at any rate, are not bound by the compromise made therein. It appears that Baikuntha Chandra Chakrabarty (defendant No. 4) was a party to the previous suit, but that defendants Nos. 3 and 5--9 were not parties. But it has been argued that as the property stood in the name of Baikuntha, he must be deemed to have acted on behalf of all members of the family. No foundation has been laid for this position. It may be conceded that a decree obtained against the head of a family in a suit to which the other members are not parties may be operative against the latter under certain circumstances, but this principle clearly does not apply unless it is shown that the matter was one in which the member sued was entitled to represent the whole family, jogendra Deb v. Funindro Deb 14 M.I.A. 867 at p. 376 : 11 B.L.R. 244 : 17 W.R. 104 : 2 Suth. P.C.J. 517 : 3 Sar. P.C.J. 32 : 20 E.R. 824; Narayananwamy Naidu Garu v. Tirumala Setti 16 Ind. Cas. 698 : 24 M.L.J. 79 at p. 83; (1913) M.W.N. 96; Jaddo Kuar v. Sheo Shatkar Rarn 7 Ind. Cas. 902 : 33 A. 71 : 7 A.L.J. 945 affirmed by the Judicial Committee in Sheo Shankar Ham v. Juddo Kunwar 24 Ind. Cas. 504 : 8C.W.N. 968 : 20 C.L.J. 282 : 36 A. 383 : 12 A.L.J. 173 : 16 Bom. L.R. 810 : 16 M.L.T. 175 : (1914) M.W.N. 593 : 1 L.W. 695; Kishert Parshad v. Har Narain Singh 9 Ind. Cas. 739 : 38 I.A. 45 : 33 A. 272 : 15 C.W.N. 321 : 8 A.L.J. 256 : 9 M.L.T. 343 : 13 C.L.J. 345 : 21 M.L.J. 378 : 13 Bom. L.R. 359 : (1911) 2 M.W.N. 895 and Kunj Beliari Lal v. Kandh Parshad 6 C.L.J. 362 at p. 368. There is nothing to show in the case before us that Baikuntha had authority to bind the members of the family to which he belonged by a compromise with the plaintiffs; the mere fact that the property had been acquired by the family in his name would not necessarily justify the inference that he had such authority. It cannot consequently be held that the members of the Chakrabarty family, who were not parties to the suit of 1879, were bound by the settlement made therein. The decree has no greater effect than the argee-ment whereon it is based, and as there is no evidence that Baikuntha could have bound his co-sharers by an agreement made by himself alone without their authority in respect of the property jointly owned and possessed by them, they are not affected by the consent decree.

6. In support of the fourth objection, it has been argued that the consent decree has not been acted upon by the parties, but has, on the other hand, been repudiated by the proprietors of Sakhipura when sought to be used against them. It appears that in the course of proceedings under the Bengal Estates Partition Act, 1876, in respect of Sakhipura, the present plaintiffs intervened on the ground that lands which lay outside Sakhipura and within Chur Bhaga were attempted to be brought under partition. In support of their objection they relied upon the map in the suit of 1879; but the proprietors of Sakhipura promptly repudiated the map and the consent decree in a petition, dated the 17th June 1901 (Exhibit E); and they adhered to this position throughout the partition proceedings, Exhibit P, dated 27th April 1905, Exhibit LB, dated 7th June 1905, and Exhibit 2, dated 9th November 1905. There is thus no foundation for the suggestion that the proprietors of Sakhipura, though apprised of the proceedings in the suit of 1879, have acquiesced therein.

7. In support of the fifth objection, it has been urged that no question of settlement of the boundary between Bhaga and Sakhipura fell within the scope of the suit of 1879, that no such question was or could be determined by the decree made therein, and that the boundary, then settled could not conclude the question now in controversy, as the title to other lands entirely distinct is in dispute. It is plain from an examination of the plaint in the litigation of 1879 that he suit was not brought for the purpose of demarcation of the boundary between Chur Bhaga and Chur Sakhipura. The claim was confined to specific lands; as to some of the lands, the plaintiffs claimed them as included in Chur Bhaga; as to others, they contended that they were entitled to a share as included in Sakhipura of which they were joint proprietors. The lands in the first schedule were comprised in three plots and the plaintiffs were awarded a decree by consent for four kanis out of the third plot. Assume that the amin re-laid a portion of the boundary between Chur Bhaga and Chur Sakhipura. It is plain that in so far as this was necessary for the decision of the controversy in the suit, and to such extent only, the parties would be bound. The petition presented to the Court which recited the terms of the settlement asked substantially for a decree for the four kanis allotted to the plaintiffs. The decree itself is undoubtedly capable of the interpretation that it gave the plaintiffs the four kanis mentioned. The decree does not explicitly declare that the boundary between Chur Bhaga and Chur Sakhipura was fixed as shown on the map of the amin; the decree could hardly do this when we find that the suit was not framed as one for demarcation of the entire boundary between the two churs. It is well settled, as was pointed out by the Judicial Committee in the case of Kerr v. Nuzzar Mahomed 2 W.R. (P.C.) 28 that the rights of property as between two parties cannot be affected by a map drawn for a different purpose, a purpose not relevant to the subject of the dispute between them. To the same effect is the decision of Garth, C.J., in Moni Roy v. Raj-bunsee Kooer 25 W.R. 393. There, ia a suit for some land, a Judge had considered it necessary to find out the boundary between two villages, and had given a decision in favour of one of the parties, who, in a second suit of the same kind, but with reference to some other land, relied on the former decision to show that the land in dispute in the second suit must be his, if the finding as to the village boundary in the former suit was correct. This contention was overruled, and it was held that the finding as to the village boundary in the former suit was conclusive only as to the land in dispute in the former case, but did not make the former decision conclusive as to the entire boundary line itself. This view is based on obvious good sense and has been repeatedly adopted in this Court Kanto Prashad v. Jagat Chandra 23 C. 335; Ranajit v. Basantof Kumar 4 Ind. Gas. 81 : 9 C.L.J. 597 : 12 C.W.N. 759; Priya Nath Mojumdar v. Mahendra Kumar Mitra 10 Ind. Cas. 376 : 14 C.L.J. 578 and Shib Charan Dey v. Nil Kantha Mahato 16 Ind. Cas. 747 : 17 C.L.J. 642. The plaintiffs have consequently made an attempt to identify the lands in dispute in the suit of 1879, but the endeavour has been entirely unsuccessful. The map prepared in the suit of 1879 does not show the situation of the lands then in dispute; it does not even indicate the lands decreed to the plaintiffs. A fruitless attempt has been made to locate the lands from the boundaries of the three plots mentioned in the first schedule to the plaint in that suit, but in the absence of evidence to identify the localities mentioned in the boundaries, the attempt, as might have been anticipated, could not possibly succeed; the plaintiffs merely sought to express one unknown quantity in terms of others. There is this further difficulty that the eastern portion of the map, after station 44 and beyond the done, (channel of water), has not been prepared to scale, as is obvious from a comparison with the corresponding locality on the case map. The explanation offered for this fact is that at that time there was no dispute in respect of that portion. If this be accepted as the true explanation why that portion of the map was not drawn to scale, it furnishes a good illustration of the danger of using a map prepared for one purpose for an entirely different purpose. We are consequently of opinion that the location of the boundary between station 1 and station 44 on the map (Exhibit 19A) prepared by Ram Chandra Bose in the suit of 1879 cannot be treated as conclusive as between the parties for the purpose of this litigation. That line, as depicted on the map, does not agree either with the tliak line or the survey line; we do not know on what basis the line was drawn. It would obviously have not attained the ends of justice, if we had been constrained to adhere to a boundary line incorrectly drawn. This is well illustrated by the incongruous position which has resulted from the adoption of that line by the Subordinate Judge. The line between stations 1 and 44 does not constitute the complete boundary, and as it has been inaccurately drawn, it does not terminate either on the tliak or on, the survey line; the Subordinate Judge has, accordingly, been obliged to produce the line arbitrarily in a straight line towards the east, so as to make a complete boundary line. It is incontestible that this result, so eminently unsatisfactory, is avoided by the view we have adopted, viz., that this line is not conclusive for the purposes of the present controversy which must be deter mined independently thereof.

8. The question next arises whether a decree should be made on the basis of the tTvfik map as delineated on the case map. The Subordinate Judge has held that the thak line has not been correctly delineated. We are of opinion that this view is wellfounded. The plaintiffs pointed out to the amin on the 12th March 1909 an Aswatha tree as the point of commencement of the thalc line; later, on the 6th January and 16th February 1910, they alleged that this was a mistake and prayed that the thak line might be re-laid. The Court refused the application as made at too late a stage of the case. In this Court, there has been considerable discussion at the Bar as to the correct tri-junction point from which the thalc line should be re-laid; but although the parties are not agreed as to the situation of the true tri-junction point, it is plain that the line as delineated on the case map by the amin cannot be accepted as correct. The two possible alternatives are, either to have the thak line re-laid or to make a decree on the basis of the survey line which, it is admitted by both sides, has been correctly delineated on the case map by the amin. This is the third point raised in connection with the question of title. Now it may be conceded that the survey officers had, at their disposal, means of more accurate measurement than the thak officers had; but, as pointed out by this Court in Abid Hossain Mandul v. Dowcurry Pal 6 C.W.N. 629 and Nawab Bahadur of Murshidabad v. Gopinath 6 Ind. Cas. 392 : 13 C.L.J. 625 at p. 632 no hard and fast rule can be laid down that a survey map is more reliable than a thdk map. The true principle is that the map which more clearly agrees with the local land-marks is the one that should be followed. This, however, is of no assistance in the case before us, because the lands in dispute were swept away by the action of the river more than once after the preparation of the thak map, and the identification of the local land-marks is attended with considerable risk of error. But we have two significant circumstances to assist us in the choice between the thak and the survey maps. In the first place, we know that the features of the land had been changed by diluvion which took place in the interval between the thak proceedings and the Revenue Survey; any disagreement, consequently, between the thak line and the survey line is attributable, prima facie, not to the inaccuracy of the thak measurements, but to the altered condition of the lands surveyed. In the second place, we find that even after the survey, the parties accepted the thak proceedings as evidence of their title and possession, and each of the contesting parties took steps in 1859, 1863 and 1864 for the rectification of what they considered to he errors in the thak map; moreover, so recently as 1888, lands were released to proprietors of Chur Bhaga on the basis of the thak map, as is clear from the (Kara survey map Exhibit I (1). The thak map was made in the presence of the parties or their agents and is prima facie binding on them: Omrita Lal v. Kalee Pershad 25 W.R. 179. We are consequently of opinion that the decree in this case should be based, not on the survey map, but on the thak map after it has been re-laid with as much accuracy as practicable.

9. The only other question which requires consideration in the appeal by the proprietors of Sakhipura is that of limitation. The Subordinate Judge has correctly held that as, on the authority of the Judicial Committee in Secretary of State v. Krishnamoni Gupta 25 C.W.N. 617 : 29 C. 518 : 4 Bom. L.B. 587 : 29 I.A. 618 the rightful owners must be deemed in law to have been in possession of the submerged lands during the period of diluvion, the only point for investigation is the period of time when the lands reappeared and became fit for occupation. Upon this part of the case, we are generally in agreement with the Subordinate Judge in his conclusion that the possession of the defendants after re-formation of the disputed lands has not extended over the statutory period. In fact, although the attention of the Court has been invited to portions of the evidence on the question of the time of re-formation of the re-formed lands, and their occupation by the defendants, it has been conceded by the appellants in the end that in respect of all lands which fall within the thak boundaries of the churs owned by the plaintiffs, the objection of limitation cannot be seriously pressed. We hold accordingly that the claim of the plaintiffs is not barred by limitation in respect of lands which lie within the thak boundraies of their churs.

10. We have finaly to consider the cross-appeal of the plaintiffs-respondents, in which they claim title, by adverse possession, to lands which lie beyond the thak boundaries of their chirrs and are comprised within the ambit of either Sakhipura or Tarabunia. To enable them to succeed in a claim of this description, they are bound to establish, in respect of specific parcels of land, that they have been in occupation thereof to the exclusion of the rightful owner continuously for a period of 12 years; for as was pointed out in Mohini Mohan v. Promada Nath 24 C. 256 1 C.W.N. 304 and Jogendra Nath Roy v. Baladeo Das Manoari 35 C. 961 : 6 C.L.J. 735 : 12 C.W.N. 127 the theory of constructive possession is applied only in favour of a rightful owner and is not extended in favour of a wrong-doer whose possession is treated as confined to land of which he is actually in possession. Tested from this point of view, the claim by adverse possession set up by the respondents turns out to be entirely unsustainable. The attempt to identify and locate specific parcels whereof they allege to have held possession, has completely failed while the evidence of continuous possession of any definite tract for more than 12 years is untrustworthy. We hold accordingly that the plaintiffs have failed to prove title by adverse possession to any lands not included within the thak boundaries of their churs.

11. The result is that this appeal is allowed, the cross appeal dismissed and the decree of the Subordinate Judge is discharged. It is declared that the plaintiffs are entitled to possession of such portion of the disputed lands as lie within the thak boundaries of the property known as Bhaga Chur, Chur Datali and Chur Lasti. The case is remanded to the Subordinate Judge in order that the thak boundaries of the churs mentioned may be re laid by a Commissioner, who will be free to take evidence to determine the tri-junction point from which the thak line is to be re-laid. The plaintiffs will be placed in possession of such lands as may be found to lie within the thak lines of the churs owned by them, and they will also recover a proportionate amonnt of the profits of the attached lands in deposit in the Collectorate. The plaintiffs will further recover mesne profits in respect of the lands decreed to them. As regards the costs in the Court below as also in this Court, each party will bear his own costs up to the present stage. The costs of the proceedings after remand will be in the discretion of the Court below.


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