FAQIR SINGH Vs. BHIM SINGH

JUDGEMENT

(1.) THIS is a plaintiffs' second appeal in a representative suit filed by the residents of village Jakh Dhaulat against the residents of village Bhumiathal praying for a declaration that certain land shown on the map annexed to the plaint was outside the boundary of village Bhumiathal as settled in the year 1866 and was within the traditional boundary of the plaintiff's village Jakh Dhaulat. The trial court framed three issues in the suit, namely, (1) Whether the land in suit lies within the traditional boundary of the village of the plaintiffs ? (2) Whether the suit is barred by the principles of estoppel ? and (3) To what relief, if any, are the plaintiffs entitled ? He found on issue No. 1 that the land in suit shown in the Amin's map by letters JA, JHA, YAN, TA, THA, DA, KHA, RA, JA, lies within the traditional boundaries of the village of the plaintiffs. On issue No. 2 he found that the suit was not barred by estoppel and in the result decreed the suit and declared that the land in suit shown by the letters JA, JHA, YAN, TA, THA, DA, KHA, RA, JA, in the Amin's map (Paper No. 36 A-2) lay within the traditional boundary of village Jakh Dhaulat. On appeal the Court of the Civil and Sessions Judge, Kumaun dismissed the suit on the finding that the disputed land did not lie within the traditional boundary of the plaintiffs' village as modified in the Beckett Settlement when the defendants' village was carved out of the plaintiffs' village and that it now forms part of the defendants' village.

(2.) WHETHER the land in dispute lay within a traditional boundary of one village or the other is plainly a question of fact which can better be resolved by survey rather than settled on second appeal by this Court. Be that as it may, it appears from the record that the determination of the boundaries of the two villages was the subject matter of a dispute before the Assistant Record Officer by way of what has been termed as Regular Tanaza No. 49 of 1963-64. That was decided by the Assistant Record Officer by an order dated 15th April, 1964 which is Ex. 2 on the record. The matter appears to have been taken in appeal before the Record Officer Pi tohragarh. It was Appeal No. 63 of 1964 and was dismissed on 16th February, 1964. The suit giving rise to the present second appeal in this Court was filed thereafter. It appears from the judgment of the lower appellate court that the orders of the Assistant Record Officer and the Record Officer were passed in the course of settlement operations.

(3.) THE appeal fails and is dismissed. In the circumstances there will be no orders as to costs. Appeal dismissed.