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Shib Charan Dey Vs. Nil Kantha Mahato and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in16Ind.Cas.747
AppellantShib Charan Dey
RespondentNil Kantha Mahato and ors.
Cases ReferredPrice v. Torrington
Excerpt:
map - private map when admissible in evidence--determination of identity of land--boundaries--identification of all four boundaries--evidence act (i of 1872), section 83. - .....in controversy. for instance, a private map may be admissible as against the party by whom it was prepared or his predecessor, as an admission, or it may be used as evidence, possibly even against a stranger, on questions of public or general interest, if made by a deceased person of competent knowledge. mercer v. denne (1904) 2 ch. 534 at p. 545 : 68 j.p. 479 : 53 w.r. 55 : 91 l.t. 513 : 20 t.l.r. 609 : affirmed (1905) 2 ch. 538 : 21 t.l.r. 760 : 70 j.p. 65 : 54 w.r. 303 : 3 l.g.r. 1293. assheton smith v. owen 75 l.j. ch. 181 at pp. 187; 188 : 1 ch. 179 : 94 l.t. 42 : 22 t.l.r. 182 : 10 app. m.c. 164 : smith v. lister 72 l.t. 20 : 64 l.j.q.b. 154 : 15 r. 226; hammond v. bradstrset 10 exch. 390 : 2 c.l.r. 1195 : 23 l.j. ex. 332 : 2 w.r. 625 : rex v. milton 1 kar. & kir. 58; beaufort v......
Judgment:

1. This is an appeal on behalf of the plaintiff in a suit for declaration of title to land and for recovery of possession thereof. The plaintiff founded his claim upon a lease granted in favour of his predecessor by the defendant on the 20oh June 1881, and the question in controversy between the parties is whether the lands now in dispute are comprised within the boundaries of the lease. The Court of first instance decided in favour of the plaintiff.

2. Upon appeal, that judgment has been reversed by the Judicial Commissioner. His decision has been assailed in this Court on behalf of the plaintiff on two grounds, namely first, that reliance has been improperly placed upon a map prepared in 1892 for the purposes of another litigation; and, secondly, that the question of the location of the eastern boundary specified in the lease has not been properly considered.

3. In so far as the first ground is concerned, it has been broadly contended, on the authority of the decisions in Priya Nath Majumdar v. Mahendra Kumar Mitra 14 C.L.J. 578 : 10 Ind. Cas. 376 : 16 C.W.N. 317 and Kerr v. Nuzzar Mahomed 2 W.R.(P.C.) 28 that the map was not admissible in evidence. It has been argued in substance that as the map was prepared for a totally different purpose, a purpose wholly irrelevant to the subject of dispute in the present litigation, it cannot be used in evidence at all. In our opinion, this contention is too broadly formulated and cannot be accepted. Section 83 of the Indian Evidence Act deals with the question of presumption as to the accuracy of maps and plans and lays down that the Court shall presume that maps or plans purporting to be made by the authority of the Government were so made and are accurate; but maps or plans made for the purpose of any cause must be proved to be accurate. It will be observed that this section does not deal with the question of the admissibility of a private map. If such a question arises in a litigation, the answer must depend upon the relevancy of the map in relation to the question in controversy. For instance, a private map may be admissible as against the party by whom it was prepared or his predecessor, as an admission, or it may be used as evidence, possibly even against a stranger, on questions of public or general interest, if made by a deceased person of competent knowledge. Mercer v. Denne (1904) 2 Ch. 534 at p. 545 : 68 J.P. 479 : 53 W.R. 55 : 91 L.T. 513 : 20 T.L.R. 609 : affirmed (1905) 2 Ch. 538 : 21 T.L.R. 760 : 70 J.P. 65 : 54 W.R. 303 : 3 L.G.R. 1293. Assheton Smith v. Owen 75 L.J. Ch. 181 at pp. 187; 188 : 1 Ch. 179 : 94 L.T. 42 : 22 T.L.R. 182 : 10 App. M.C. 164 : Smith v. Lister 72 L.T. 20 : 64 L.J.Q.B. 154 : 15 R. 226; Hammond v. Bradstrset 10 Exch. 390 : 2 C.L.R. 1195 : 23 L.J. Ex. 332 : 2 W.R. 625 : Rex v. Milton 1 Kar. & Kir. 58; Beaufort v. Smith 4 Exch. 450 : 19 L.J. Ex. 97; Mellor v. Walmesley (1905) 2 Ch. 164 : 74 L.J. Ch. 475 : 53 W.R. 581 : 93 L.T. 574 : 21 T.L.R. 591 : Price v. Torrington 1 Salk 285 : 2 Sm. L.C. 320 The map in the case before us cannot by itself be treated as admissible in evidence without proof that it is relevant for the determination of the question in controversy. Now, the defendants who relied upon this map, called the Commissioner who had made it in the earlier litigation. He deposed to the correctness of the map and the field-book, and stated that the hillock marked therein as Phuldungsi was not in dispute in that litigation, but that there was no difference between the parties as to its name; and he added that if there had been a dispute as to its name, the fact would have been noted by him on the map. We may take it, therefore, that the map is admissible in evidence to show the existence of a hillock on the spot mentioned in the map. We may take it also that it was called Phuldungsi and that this was not challenged by the predecessor of the plaintiff who was a party to the litigation in which the map was prepared. This, however, is not sufficient for the purpose of the defendant in the present litigation. The matter in controversy in the previous litigation related to the boundary between Lalpore, the property of a neighbouring proprietor, and Paharpur, a portion whereof was held in lease by the plaintiff. It has not been shown that the determination of the southern boundary of the lease was necessary for the purpose of the previous litigation; it has not also been shown that the predecessor of the present plaintiff admitted not merely that the hillock named Phuldungsi was so named but also that it was the Phuldungsi mentioned in the southern boundary of his lease. On the other hand, the map prepared in the present litigation shows that, accordingly to the defendants, there is at least another hillock in the neighbourhood known as Phuldungsi. Even if it be assumed, therefore, that the map is admissible as against the plaintiff to show that his predecessor in 1892 acquiesced in the description of the hillock as Phuldungsi, the inference does not follow that he made any admission, either direct or indirect, that the hillock named as Phuldungsi on the map then prepared was the Phuldungsi stated to be the southern boundary of the lease. The first ground urged by the appellant is, therefore, well founded to this extent namely, that the inference drawn by the learned Judge that the Phuldungsi, shown in the map of 1892, is identical with the Phuldungsi mentioned in the lease of 1881 is not based upon any evidence. The first ground must consequently prevail in part. We may add that we invited the learned Vakil for the respondent to point out any evidence to show that there was an admission on behalf of the plaintiff or his predecessor, identifying the Phuldungsi in the map of 1892 with the Phuldungsi mentioned in the lease of 1881. But he was unable to place such evidence before the Court. As our attention has not been drawn to any evidence at all on the point, we must hold that the inference of the learned Judge is based upon no evidence at all, and it has not been disputed that, under the circumstances, the case is a fit one for our interference in second appeal.

4. In so far as the second ground is concerned, it has been urged by the learned Vakil for the appellant that the question of the eastern boundary, as given in the pattah of the 20th June 1881, has not been properly considered. There is considerable force in this contention. We may point out that in determining the question of identity, attention must not be confined to one or other of the boundaries alone, but, as far as practicable, an attempt must be made to identify all the four boundaries in the document.

5. The result is that this appeal is allowed, the decree of the Judicial Commissioner set aside, and the case remanded to him in order that the appeal may be re-heard. We may add that on behalf of the respondent, our attention was invited to an ekrarnama, dated the 16th November 1894. We found it impossible, however, to determine the bearing of that document upon the question in controversy. The Court of Appeal below will be competent to deal with this matter. The costs of this appeal will abide the result.


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