1. The subject-matter of this litigation is a large tract of alluvial land formed in the bed of the river Ganges, also called Kirtinasha, in the District of Faridpur. The plaintiffs claim the land as included within village Bhaga. The defendents claim the land as comprised within village Sakhipura. The present suit was commenced on the 26th September 1907 and terminated in the Trial Court on the 25th April 1910 with a partial decree in favour of the plaintiffs. The defendants thereupon appealed to this Court. On the 31st July 1914 the appeal was allowed and the decree of the Subordinate Judge was discharged. It was declared that the plaintiffs were entitled to possession of such portion of the disputed lands as lay within the thak boundaries of the property known as Bhaga char, char Datali and char Lasti. The case was remanded to the Subordinate Judge in order that' the thak boundaries of the chars mentioned might be relaid by a Commissioner who would be free to take evidence to determine the trijunction point from which the thak line was to be relaid. The judgment of this Court which has been reported--Amrita Sundari v. Serajuddin Ahamed 29 Ind. Cas. 156 : 19 C.W.N, 565--shows that one of the points argued in the appeal was, whether the decree was to be made on the basis of the thak map or the survey map. This Court came to the conclusion that the decree should be based not on the survey map but on the thak map, after the latter had been relaid with as much accuracy as practicable. We need not recapitulate all the reasons assigned in support of this view; but one circumstance may be usefully recalled. This Court found 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; consequently, any disagreement between the thak line and the survey line was attributable, prima facie, not to the inaccuracy of the thak measurements but to the altered condition of the lands surveyed. The result was that the case was remitted to the Trial Court for reconsideration.
2. The Subordinate Judge after remand appointed a Commissioner to hold a local investigation and to prepare a case map so that the direction of this Court might be carried out. The Commissioner received the commission on the 8th December 1915 and submitted his final report on the 21st January 1917. The report of the Commissioner and the annexures thereto leave no room for controversy that the enquiry was conducted by him with great thoroughne Sections There was a dispute before the Commissioner as to how the thak line was to be relaid. The defendants urged that the starting point to be adopted was a point towards the southwest of the disputed land, where the Deara authorities had, in 1878, posted an iron pillar to indicate the trijunction point of mouzas Bhaga, Nimua and the river. The plaintiffs urged, on the other hand, that the starting point should be taken towards the southeast of the disputed land as the trijunction point of mouzas Bhaga, Nimua and Tarabunia. The Commissioner rejected the second alternative and gave prima facie sufficient reasons for his opinion that the trijunction point of Bhaga, Nimua and Tarabunia could not be ascertained with reasonable approach to accuracy, and that the trijunction points as identified by the defendants were correct. The Commissioner further explicitly recorded his view that the thak map of char Bhaga could not be correctly relaid except by the process already adopted by the Deara authorities. He then prepared a map on this basis and showed the portion of the disputed land which fell within the village claimed by the plaintiffs.
3. The Subordinate Judge was not satisfied with the result of this enquiry. He held that the south-eastern point was entitled be preference over the south-western point on account of its proximity to the disputed land. He then proceeded to investigate whether the trijunction point at the south-east corner could be presumed to be identical with the revenue survey point and he came to the conclusion that a presumption should be made in favour of the identity of the two points. The Subordinate Judge argued that as the southeast trijunction point was in the middle of the island on the bank of a canal, it was not likely to have been affected by river action during the season which intervened between the thak proceedings and the revenue survey. The course adopted by the Subordinate Judge is in our opinion obviously inadmissible. In the first place he assumes that there had been no changes in the situation of the disputed land during the period mentioned. This is directly contrary to the finding contained in the jugment of this Court. As that judgment had become final, neither of the parties litigant was entitled to get round the conclusions then adopted on evidence. In the second place, the Subordinate Judge assumes that the trijunction point had been correctly depicted on the survey map. This was negatived by the judgment of this Court pronounced on the last occasion. What has happened in substance is that the Subordinate Judge after remand has made a decree on the basis of the survey map which was found unreliable by this Court when the order of remand was made.
4. The Subordiate Judge stated that there was wide divergence between the boundary lines obtained by the adoption of the two starting points. He had consequently to face the question, which of the two positions should be accepted. He rejected the southwest point on the arbitrary ground of its distance from the disputed land. But if a map has been accurately drawn, it should, in theory at least, be immaterial, from what starting point it was relaid. Accordingly, the root question was, which trijunction point had been ascertained with precision. The commissioner selected the south-western point. There is this to be urged in support of his view that he thus accepted a point which had been previously adopted by the Deara auohorities in 1878. The Subordinate Judge, on the other hand, preferred the south-eastern point. But that point itself had not been ascertained with accuracy; its identification was based on the erroneous and inadmissible assumption that the survey map was accurate and reliable. We are consequently of opinion that the Subordinate Judge has not only taken a view inconsistent with that followed in the order of remand but that his conclusions are based on unwarranted assumptions.
5. The Subordinate Judge states in one portion of his judgment that the thak lines do not agree with the revenue survey lines. This in fact was emphasised in the order of remand and reasons were given why the thak map should in the present case have preference over the survey map. The respondents have incidentally suggested that it is probable that neither the thak map nor the survey map is entirely reliable. If this be the fact, the respondent plainly cannot be benefited thereby. The only result of such a conclusion would be that the foundation of their claim would disappear. The burden lies upon the plaintiffs to establish that the disputed land is within the village held by them. If the boundaries of their village cannot be located with fair approach to precision, no decree can be made in their favour. We need not develop this point further, because the defendants have not, in this appeal, attacked the entire decree and have proceeded on the assumption that the thak boundary line was correctly relaid by the commissioner.
6. We may point out finally that the method adopted by the Subordinate Judge was liable to lead to error and was disapproved by the Judicial Committee in the case Of Surut Soondree Debea v. Prosonno Coomar Tagore 18 M.I.A. 607 : 6 B.L.R. 677 : 15 W.R.P.C. 20 : 2 Suth P.C.J. 393 : 2 Sar. P.C.J. 632 : 20 E.R. 677. In that case, a question arose as to the title to char lands thrown up by the river Brahmaputra. A commissioner was appointed to make a local investigation and the Trial Court made a decree in conformity with his report. This Court, on appeal, adversely criticised the report and made a decree 'on an examination of the maps filed in the cause and on the explanations and arguments of the pleaders on both sides.' The Judicial Committee reversed the decision of this Court and deprecated interference with the result of a long and careful local investigation except upon clearly defined and sufficient grounds. The same view was adopted in Monkee Dumbur Sahee v. Bhullundur Sahee 15 W.R. 423 and Kamini Kishore v. Parbartya Tipper ah Raj 60 Ind. Cas. 434. In circumstances like these, it is not safe for a Court to act as an expert and to overrule the elaborate report of a commissioner whose integrity was unquestioned, whose careful and laborious execution of his task was proved by his report, and who had not blindly adopted the assertions of either party. We need not go minutely into the details, but we see no ground for impugning the accuracy of the conclusion of the commissioner upon what must be regarded as the broad and cardinal issue whereon the determination of this case depends. On the other hand, we are unable to see any satisfactory grounds for the assumption which is the foundation of the judgment of the Subordinate Judge and is in conflict with the order of remand.
7. The result is that this appeal must be allowed, the decree made by the Subordinte Judge on the 30th July modified and a decree made in favour of the plaintiffs in accordance with the report of the commissioner Babu Joges Chandra Das Gupta, dated 21st January 1917. The report of the commissioner and the map annexed thereto (before it was modified according to the direction of the Subordinate Judge issued on the 21st July 1919) will be treated as part of this decree. The appellants are entitled to their costs in this Court. The hearing fee is assessed at ten gold mohurs.