1. This is an appeal on behalf of the plaintiff, the Nawab Bahadur of Murshidabad, in an action for declaration of title to immovable property and for recovery of possession thereof with mesne profits. The plaintiff claimed the disputed' land as included within his Mouzi Gandharbapur, which is a part of his estate Gopmathpur. The defendants, on the the other hand, laid claim to the property as included within their Monza Monoharpur. It was not disputed in the Courts below that the plaintiff was entitled to Mouza Gandharbapur, and the defendants to Monoharpur. In so far, therefore, as the question of title was concerned, the sole point in controversy reduced itself to one of boundary dispute. The defendants further pleaded that the title of the plaintiff, if any, had been extinguished by limitation. In the Court of first instance, an Ameen was appointed to relay the thak and survey maps, and to ascertain whether the disputed land lay within the ambit of the one village or other. His enquiry led to a result of an inconclusive character, as he could not make the boundary lines, as shown in the two maps, agree. The Court was thereupon of opinion that a fresh enquiry might be directed, unless the claim of the plaintiff failed on the ground of limitation. Upon this question, the Court of first instance held that the plaintiff had failed to prove possession within twelve years, or indeed, at any time since the Permanent Settlement. In this view, the suit was dismissed with costs. Upon appeal the learned District Judge agreed with the original Court as to the unsatisfactory nature of the enquiry by the amin, but did not direct fresh investigation, as, in his opinion, the plaintiff had failed to prove possession within twelve years before 1891, while the respondent had established adverse possession for that period. The learned District Judge, however, did net, in his determination of the question of adverse possession, refer to the character of the land which was admittedly waste land for many years, and was, from time to time,, covered with water, in which people in general used to catch fish. Against the decree of dismissal made by the District Judge, the plaintiff has now appealed to this Court, and on his behalf it has been argued that the Courts below have misunderstood the effect of Section 4 of the Murshidabad Act, 1891, that, as a result, the case has not been properly tried that, in any event, the question of title ought to have been first determined, and the question of adverse possession should thereafter have been considered with particular regard to the nature of the land and its possible user. In our opinion, these contentions are well founded and must prevail.
2. Act XV of 1891, upon the fourth section of which reliance is placed on behalf of the appellant, was passed on the 21st March 1891, with a view to confirm and give effect to an indenture between the Secretary of State and the then Nawab Bahadur of Murshidabad. By this indenture, certain properties, , described i-n the schedule attached thereto, were vested in the Nawab, Bahadur for the maintenance of the honor and dignity of his station as the premier noble of the provinces of Bengal, Behar and Orissa and the properties were made descendible to his lineal heirs according to the custom of primogeniture. The second section of the Act confirmed the indenture, while the third section authorised the Governor-General in Council to include additional immovable property in the schedule annexed thereto. The fourth section, the construction of which is the subject of controversy in this litigation, provides a rule of limitation for claim to the scheduled immovable property, and is in these terms:
No right to any immovable property mentioned in any of the schedules to the said indenture, or in any addition which under the last foregoing section may, from time to time, be made to these schedules, or any of them, shall, if the right has not accrued before the passing of this Act, be acquired by any person by adverse possession or' assertion of title, unless such adverse possession or assertion of title is found to have existed for sixty years.
3. On behalf of the appellant, it is contended that the effect of this section is to enable the Nawab Bahadur to bring a suit for recovery of possession of /the scheduled immovable property within sixty years from the date of dispossession, subject to the restriction, that this rule would have no application to property to which statutory title might have been acquired by adverse possession for twelve years before the 21st March, 1891, when, the Act came into force. On behalf of the respondents, on the other hand, it has been argued that the section does not lay down any rule of limitation for the institution of suits, and that suits for the recovery of possession of the scheduled property must be commenced by the Nawab Bahadur within twelve years of the date of dispossession under Article 112 or of the commencement of adverse possession under Article 144 of the Limitation Act as the case may be, inasmuch as Article 149 has no application. In support of the last portion of this argument, reliance has been placed upon the case of Municipal Commissioners v. Sarangapani Mudaliar 19 M. 154. Before we deal with the question of the true effect of Section 4 of the Murshidabad' Act, which is apparently one of first impression and altogether free from difficulty, it is necessary to refer briefly to the question of the applicability of Article 149 of the Limitation Act. That article provides for a period of limitation of sixty yeas for all suits by or on behalf of the Secretary of State for India in Council. It is obvious that this has no application to the Nawab Bahadur, because, even if the Nawab Bahadur be treated as a grantee of the scheduled property from the Secretary of State, he stands in the same position as any other grantee or proprietor. Indeed, the view that Article 149 is applicable only to suits by or on behalf of the Secretary of State has been affirmed by the Judicial Committee, in Secretary of State v. Durbijoy Singh 19 C. 312 : 19 I.A. 69, and Jagadindra v. Hemanta KumariDebi 32 C. 129 : 7 Bom. L.R. 765, while the case of Kutha Perumal Rojah v. Secretary of State for India in Council 30 M. 245, shows that the Article 149 cannot be applied to assignee from the Secretary of State. This view is not controverted on behalf of the appellant, who relies not upon Article 149 of the Limitation Act, but upon Section 4 of the Murshidabad Act. The question, therefore, reduces itself to this: Does Section 4 of the Murshidabad Act restrict the application of Article 142 or 144 of the Limitation Act to a suit by the Nawab Bahadur for the recovery of any portion of the scheduled property. ' In our opinion this question ought to be answered in the affirmative, because if the contrary view were maintained, the result of the application of Article 142 or 144 would be clearly contradictory to the intended effect of Section 4 of the Murshidabad Act.
4. If Article 142 or 144 be held applicable, Section 28 of the Limitation Act would lead to the result that upon the expiry of the time prescribed thereby, that is, upon the-expiry of twelve years from the date of dispossession or from the commencement of adverse possession, the right of the plaintiff to the disputed property will be extinguished. It has been repeatedly laid down by the Judicial Committee that even before the passing of Act IX of 1871 and XV of 1877, upon the expiry of the period of limitation prescribed for the enforcement of a suit for possession of land, the title of the true owner was extinguished. [Gunga Govind v. Secretary of State 11 M.I.A. 345 : 7 W.R. (P.C.) 21, Luchmee Buksh v. Runjeet Ram 13 B.L.R. (P.C.) 177 : 20 W.R. 375 and Fatimatulnissa v. Sundar Dass 27 C. 1004 : 27 I.A. 103 : 4 C.W.N. 565]. Section 28 of the Limitation Act places the matter beyond the sphere of controversy. The effect of Section 28, therefore, is not merely to extinguish the title of the rightful owner of the land, but also to create a title by negation in the occupant, which he can actively assert if he loses possession, even as against the true owner [Gossain Dass Chunder v. Issur Chunder Nath 3 C. 224, Jagrani Bibi v. Ganeshi 3 A. 435, Budesab v. Hanwanta 21 B. 589, Vasudeva v. Majuni 24 M. 387 and Dayaram v. Badri Mal 16 P.R. 1886]. If, therefore, Article 142 or 144 is held applicable to the present suit, the combined effect of either of these articles, read with Section 28 is to produce a result directly contrary to what is contemplated by Section 4 of the Murshidabad Act. We must consequently hold that the true effect of Section 4 of the Murshidabad Act is to make Articles 142 and 144 inapplicable to a suit pi the present description. Or to put the 'matter in another way, Section 4 of the Murshidabad Act embodies a rule of limittion applicable to suits for possession by the Nawab Bahadur in respect of the scheduled and. We may add that the view we take the true effect of Section 4 of the special Act, is supported by the marginal note in which the section is described as embodying a rule of limitation for claims to the scheduled immovable property.' We do not, however, base our decision upon the marginal note, because there has been considerable divergence of judicial opinion upon the question whether marginal notes ought to be relied upon in the interpretation of a statute. The cases of Byan v. Chilo (1850) 5 Ex. 368, Claydon v. Green (1868) L.R. 3 C.P. 511 : 27 L.J. C.P. 226 : 18 L.T. 607 : 40 W.R. 1126 and Attorney-General v. Great Eastern Railway Company (1879) 11 Ch. D. 449, indicate that marginal notes ought not to be relied upon in the interpretation of statutes. The contrary view of Sir George Jessel M.R. in the case of In re Venour's Settled Estates (1876) 2 Ch. D. 522, was retracted by himself in Sutton v. Sutton (1882) 22 Ch. D. 513 : 52 L.J. Ch. 334 : 48 L.T. 96 : 31 W.R. 370. In this country Piggot,J. was inclined, in Kameshar Prasad v. Bhikan Narain Singh 20 C 609, to adopt the earlier view of Sir George Jessel and the same view is supported by the observations of Petheram, C.J., in Administrator General v. Prem Lall 21 C. 732, [on appeal before the Judicial Committee Administrator General v. Prem Lall 22 C. 788 : 22 I.A. 107,] and of Stuart C.J. in Lal Singh v. Kunjan 4 A. 387. There is weighty authority, however, against this view [In re William Hastie 11 C. 451, Dukhi Mullaly v. Halway 23 C. 55, Punardeo Narain Singh v. Ram Sarup Roy 25 C. 858 : 2 C.W.N. 577, Venayak , v. Dattatraya Krishma Dator 24 B. 120, and Balraj v. Jagatpal 31 I.A. 132]. In the face of this divergence of judicial opinion, it would not be right to base our decision upon the marginal note, and certainly it ought not to be treated as conclusive. We, therefore, prefer to rest our conclusion upon a comparison of the provisions of Articles 142, 144 and Section 28 of the Limitation Act with those of Section 4 of the Murshidabad Act. It may be conceded that Section 4 might have been framed differently so as to consist of two clauses, one correspondirg with Article 149, and the other with Section 28 of the Limitation Act, but though the section, as framed, gives the result of the combined effect of these two provisions, there is, in our opinion, no room for reasonable doubt either as to what the intention of the Legislature was or as to what the true effect is of the section as it stands.
5. If, therefore, we hold that the Nawab Bahadur was entitled to sue for recovery of any portion of the scheduled immovable property within sixty years from the date of adverse possession or assertion of titleuuless the defendant had acquired statutory right before the 21st March 1891, when the Act was passed, the question arises how the suit ought to be tried? The proper procedure, in our opinion, is clear. The question of title must be first determined and this should be done by a comparison of the thak and survey maps in the locality. It has been repeatedly laid down that the thak and survey maps .afford important evidence of possession at the time they were made and as evidence of possession is evidence of title, they afford also valuable evidence of title. [See the decision of this Court in Satcowri Ghosh Mandul v. Secretary of State for India 22 C. 252, which was approved by the Judicial Committee in Jagadindra Nath v. Secretary of State 30 C. 291 : 8 C.W.N. 809 : 5 Horn. L.R. 1, see also Monmohini v. Watson 4 C.W.N. 113 : 27 C. 336 : 27 I.A. 44, and Abdul Hamid Mian v. Kiran Chdndra Roy 7 C.W.N. 849]. In fact if the map is proved, on the face of it, to have been made in the presence of the parties or their agents, it may be treated as evidence binding upon them. [Omirta Lall Chowdhury v. Kalee Pershad Shaha 25 W.B. 179]. A question appears to have been raised in the Courts below as to the relative superiority of the thak and survey maps when they disagree. 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 v. Dowcurry 6 C.W.N. 629, no hard and fast rule can be laid down that a survey map is more reliable than a thak map, the one that more clearly agrees with the local land marks is the one which should be followed and this view is not contrary to that taken in the cast) of Burn v. Achumbit Lall 20 W.R. 14. An attempt must be made, therefore, to relay the thak and survey maps as accurately as practicable and to obtain consistent results. If this is done, and it is determined that the whole or any part of the disputed land is comprised within the ambit of the estate of the plaintiff, what is the position? The thak proceedings took place in 1854; prima facie, therefore, the land which may be found comprised within the estate of the plaintiff was in his possession at the time of the thak in 1854. As the present suit was commenced on the 22nd May, 1906, it is obviously not barred by limitation under Section 4, unless the defendant can show that before the 2lst March, 1891, he had acquired a good title by adverse possession for twelve years. The burden of proof of such adverse possession must be thrown upon the defendant. Here a question arises as to the nature of this adverse possession. It appears from the proceedings in the Court below that it was suggested on behalf of the defendants that such adverse possession might have consisted partially in the act of fishing in the waters, which at one time covered portions of the disputed land. This, in our opinion, is a position not possible to maintain. As was pointed out by their Lordships of the Judicial Committee in Radhamoni Debi v. Collector of Khulna 27 C. 943 : 27 I.A. 136 : 4 C.W.N. 597, adverse possession, in order that it may be effective to destroy the title of the true owner, must be possession adequate in continuity, in publicity and in extent of area. Further, as pointed out by this Court in the cases of Wali Ahmed Chowdhry v. Tola Meah Chowdhry 31 C. 397 and Jogendra Nath Roy v. Bala Debdas Marwari 35 C. 961 : 6 C.L.J. 735 : 12 C.W.N. 127, possession to be adverse must be actual, visible, exclusive and hostile. A distinction also must be made, as is explained in the second of the two cases just mentioned, between continuous adverse possession and isolated acts of trespass. In other words, to use the language of Bramwell, L.J. in Leigh v. Jack (1879) 5 Ex. D. 264 at p. 273 : 28 W.R. 452 : 49 L.J. Ex. 220, the acts of user, in order that they may take the soil out of the true owner and vest it in the wrong-doer, must been a character such as is inconsistent with his enjoyment of the soil for the purposes for which he intended to use it. (See Pollock and Wright on Possession, 86 and Lightwood on Possession, 199). We are further informed that the disputed land has not only been waste for considerable periods but is of comparatively small area. If, therefore, we bear in mind the rule as to the presumption applicable to the possession of waste land laid down by a Full Bench of this Court in Mahomed Alt Khan v. Khaja Abdul Gunny 9 C. 744 : 12 C.L.R. 257, and by the Judicial Committee in Rajkumar Roy v. Gobind Chunder Roy 19 C. 660 : 19 I.A. 140, the defendant must prove beyond all doubt or dispute that the title of the true owner has been extinguished by his adverse possession. We must also not overlook the fact that, as explained by this Court in the cases of Amanda Hari Basak v. Secretary of State for India in Council 3 C.L.J. 316, and Jogendra Nath Roy v. Bala Debdas Marwuri 35 C. 961 : 6 C.L.J. 735 : 12 C.W.N. 127, the doctrine of constructive possession cannot be applied in favour of a wrong- doer, whose possession must be confined to actual possession, that is to say, if he relies on adverse possession, he can succeed only as regards the portion of the land in suit of which he proves actual possession for the statutory period. It must further be remembered that when the evidence of possession comes to be tested, if it is found to be of equal weight on both sides, according to the rule laid down by the Judicial Committee in Runjeet Ram Panday v. Goberdhun Ram Panday 20 W.R. (P.C) 25, the presumption would be that possession went with the title. So all these principles have been overlooked by the Courts below. In our opinion the present case has not been properly tried, and the matter in controversy must be re-investigated.
6. The result, therefore, is that this appeal must be allowed, and the decrees of the Courts below discharged. The suit will be remanded to the Court of first instance, with directions for the appointment of a Commissioner to relay the thak and survey maps after comparison in the locality. The question of title must thus be first determined, and then the question of adverse possession. The burden of proof of adverse possession will be thrown upon the defendants in respect of any lands proved by a comparison of the thak and survey maps to be included within the estate of the plaintiff as comprised in the schedule of the Murshidabad Act. The costs of this appeal will abide the result.
Appeals Nos. 1307 to 1309 of 1905.
7. It is conceded that these appeals will be governed by our decision in Appeal No. 1225 of 1908. These appeals, therefore, are allowed, and the decrees of the Courts below set aside. The cases are remanded to the Court of first instance for re-trial on the lines indicated. The costs of these appeals will also abide the result.