1. This is an appeal by the plaintiff against a decision of the District Judge of Durbhanga, reversing a decision of the Subordinate Judge. The action was brought for a declaration of title to 27 bighas 2 cottas and 13 dhoors, the boundaries being given in the plaint and for a declaration that the plaintiff is in possession of the same through the defendant, second party, who is a tenant on the land. This suit was decided in favour of the plaintiff by the Court of first instance but on appeal that decision was reversed and the suit was dismissed. The allegation of fact that the plaintiff made was that she was the proprietor of Raspur Patasia, that the land in question was a parcel of the estate of which she was proprietor. The defendant on the other hand was proprietor of Chanpatha and he alleged that the land lay within his estate. There had been a survey under the provisions of Act V of 1875 and by an order made on the 7th January 1901, the boundary line had been maintained which threw the land in question into the estate of the defendant. The District Judge was of opinion that the effect of the survey proceedings was that the plaintiff was out of possession and that decision having under the Act the effect of a decision of a Civil Court was binding and it was not, therefore, open to the plaintiff to now bring a suit for confirmation of possession. The learned Vakil for the appellant has argued that even assuming that the laying down of the boundary does have the effect of an order of a Civil Court deciding possession of the defendant, yet nevertheless it is open to this Court to make an order restoring the plaintiff to possession and he says that that order ought to be made because the title was established by the first Court. He has cited as an authority to this proposition two cases, Amir Hossein v. Imambandi Begum 11 L.R. 443 and Champu Dai v. Uma Dai 11 C.L.R. 451. In those cases there had been an allegation in the plaint that the plaintiff had been refused registration of his name in the Collectorate, the result of that refusal being to prevent the plaintiff from getting from the tenants the rent of the land which he claimed, and in each of those cases although the plaintiff might have said that he was in possession, yet he had stated in the plaint as a grievance that he was out of possession and, therefore, on the facts stated in the plaint the action amounted to one for restoration of possession and so the order could be made. What the plaintiff has in this case alleged is that she is in possession of the land in question, that the survey 'is likely to throw a cloud over the plaintiff's right and possession over the said land' and she brings her suit for determination of this right and for confirmation of possession over the land, and then in the prayer she asks for a declaration of her title and for a decision that she is in possession of the land in question. That plaint in clear terms contains an allegation that she is in possession and the learned Vakil has not been able to point out any statement in the plaint which is consistent with her being out of possession except the particular order in question and that order is the very one which stands in the way of the present suit. The result is that this case does not fall within the cases cited by the learned Vakil. In those cases the facts stated in the plaint were such as would have grounded a prayer for restoration of possession and in the present case the facts stated in the plaint would only ground a prayer for confirmation of possession. The result, therefore, is that we are not able to give the relief asked for.
2. The learned Vakil also has put his case in another way. He says that the question in the suit was not whether the plaintiff was in possession on the date of the order but whether she was in possession at the time when the suit was brought. What the Court had before it was this order demarcating the boundaries made under Sections 40 and 41 of Act V of 1875 (B.C.) and under those sections the officer who demarcated the boundaries was bound to determine the boundaries according to actual possession and when he did that, his order until reversed or modified by a competent authority had the force of an order of a Civil Court declaring the parties to be in possession of the land in accordance with the boundaries as determined. The result of that is that. when the order demarcating the boundaries was made it was equivalent to an order of a Civil Court declaring the defendant to be in possession of the land in question. Then there is another section, which is referred, to in the same Act, which says that 'no suit shall be brought to set aside an order of a Superintendent of Survey, Collector, Assistant Superintendent or Deputy Collector deciding a boundary dispute, unless an appeal shall have been first preferred under Section 59 or Section 60 or unless the person suing was at the time when such order was passed a minor or insane or idiot,' In this case we have got the order demarcating the boundary according to actual possession. It appears to me that the effect of that is to bar the plaintiff's present claim for confirmation of possession, because there is an order having the force of an order in a civil suit. At the time when the order was made the plaintiff was not in possession. The, plaintiff says that she was in possession. The answer to this in my mind is that there is a finding that she was not in possession at the time when the order was made and it is not the case of the plaintiff that she obtained possession at a later date. But her case is that she obtained possession at an earlier date than the time when the order was made and that she was in possession at the time of the order and that she remained ever since in possession. This is a suit to obtain a declaration that the land in dispute formed part of her estate by setting aside an order deciding possession in 1901. It is barred under Section 62 of Act V of 1875 (B. C). That order has never been set aside by a competent authority. The plaint as presented states that although her case is that she was in possession at a time when there had been a decision adverse to her, she was held not to be in possession; therefore the decision in that boundary dispute in my opinion decides the question of possession as far as the land in question is concerned. She cannot succeed on the case she now raises because that involves a reversal of that order, and, not having been appealed against, the order is final.
3. The result, therefore, is that the judgment and decree of the lower appellate Court are right and I dismiss the appeal with costs.
4. The defendants 1st party only are entitled to the costs of this appeal.
5. I agree. The Revenue Officer who in this case demarcated the disputed boundary between the two Villages had under Rule 43 Clause (e) of the Government Rules under the Bengal Tenancy Act powers under the Bengal Survey Act of 1875. His decision, therefore, had, under Section 41 of the Act, the force of a Civil Court decree, That decree is binding as between the plaintiff and the defendant as regards the question of possession. Upon the admitted facts, therefore, the plaintiff is out of possession at least since the date of the order in 1901. Her case, however, as made in the plaint is that she has been all along in possession and that is the case upon the evidence also. The pleadings of the defendant were directed to meet that case. We do not find in the body of the plaint any material upon which this Court can find that a prayer for recovery of possession was included. Such a prayer would be inconsistent with the express statement in the plaint. A decree for recovery of possession, therefore, would be inconsistent with the suit as made in the plaint and the defendants who took their pleas upon the basis of the plaint as it is may have a hardship to complain of, if a decree for recovery of possession were given upon this state of the record. I think, therefore, that the plaintiff not having made any previous attempt to amend her plaint so as to make the suit a suit for recovery of possession is not entitled to recover possession in this case.
6. The appeal is, therefore, dismissed with costs.
7. The defendants 1st party only are entitled to the costs of this appeal.