AMRITLAL Vs. KESHRIPRASAD BILAIYA

JUDGEMENT

(1.) THIS is an appeal by defendant No. 1 Amritlal against a declaratory decree that the plaintiff-respondent and the members of his family are the owners and bhumiswami of a tank, khasra No. 1357, area 1. 19 acres, of village Murwara. The declaration in favour of the plaintiff-respondent has been granted on the 'basis that the tank belonged to his ancestors and, in the alternative, on the basis of title acquired by adverse possession. The findings of the trial Court on both these points have been assailed by the defendant appellant.

(2.) WE will first take up the point of Initial title. The plaintiff's case is that the tank was originally known as 'tri-sool Babaki Talaiya' and that along with some other land it was granted to his great grandfather Param Bilaiya and granduncle gunthe Bilaiya by the then Malguzar Thakur Ramdutt in the year 1875. It is further alleged by the plaintiff that in course of time this tank came to be known as 'bilaiya ki Talaiya', suggesting the ownership of Bilaiya family. The defendant's case is that the land on which the tank exists was granted to his grandfather Karan Singh along with some other lands in 1-884 by the Malguzar ramdutt and thereafter his grandfather constructed the tank.

(3.) TO prove his title, the plaintiff has produced the original grant EX P-13 made by Thakur Ramdutt in favour of the plaintiff's ancestors. This document is dated 19th July 1875. It does appear that the plaintiff's ancestors got 800'x 361)' of land including a tank known as 'trisool Babaki Talaiya' under this document. The document, however, does not give the khasra numbers and, therefore, jt cannot be said that the tank in dispute in this suit is the same which is described as Trisool Baba ki Talaiya in Ex. P-13. The trial Court has observed that the boundaries given in Ex. P-13 include the tank. In our opinion, this observation is incorrect. There is absolutely no description of any boundary towards north, south and west. The only description is about the eastern boundary which is referred to as the compound of Aftar Sahab. Towards the bottom of the document there appears to be signature of one Harchand Rai, which has been mistaken as a description of western boundary. It has further to be noticed that the land granted to the plaintiff's ancestors under Ex. P-13 was about 61/2 acres end the tank with which we are concerned in this suit is only in 1. 19 acres of land. The boundaries of the land existing in the year 1-875 must have considerably changed by the time the suit came to be instituted. For these reasons, even if there had been more definite des-cription of boundaries on all the sides, it would have been difficult to say only on the strength of boundaries that the tank in suit is the same 'talaiya' which is referred to in Ex. P-13. The plaintiff has also produced Ex. P-4, a commendatory letter dated 1st aug. , 1877 issued by the Commissioner, Jabalpur, In this letter, the commissioner has appreciated the act of Param Bilaiya in constructing a Chah. The plaintiff's contention is that the Chah referred to in this letter is the tank in suit which was constructed by Param Bilaiya. There are at least three reasons why this document is not of much help to the plaintiff. First, the case of the plaintiff is that when Param Bilaiya got the lands under Ex. P-13, the tank was already there and was then known as Trisool Baba ki Talaiya, which in course of time came to be known as Bilaiya ki Talaiya. It is not the plaintiff's case that the tank in suit was constructed 'by Param Bilaiya. Secondly, the word 'chah' which is a Persian word primarily means a well; it does not ordinarily mean a tank. This is deposed to by Pannalal (D. W. 5) with reference to certain dictionaries which he brought in Court. Pannalal is a graduate in Urdu, Some of the dictionaries referred to by Pannalal in his evidence were also produced before us. We have no hesitation in accepting the statement of Pannalal (D. W. 5) that the primary meaning of Chah is a well, even if in some context it may refer to a tank. Thirdly, Ex. P-4 does not mention the land over which the Chah referred to therein was constructed by Param Bilaiya. It was not disputed before us that the plaintiff owns a well near the tank in suit. It appears to us that in 1877 Param Bilaiya constructed a well for public use and Ex. P-4 was written by the Commissioner, Jabalpur, in that context.