PROVINCE OF BIHAR Vs. CHOUDHARY BALAM SINGH

JUDGEMENT

(1.) The defendant is the appellant The plaintiffs-respondents had instituted a suit for demarcation of boundaries of two villages. They are the proprietors of village Sabalpur Babura, tauzi Nos. 817, 818, 733 and 744. Adjacent to this village is village Shankarpur Todar alias Kutubur, tauzi no. 3748. The proprietor of village Shankarpur Todar is the khas Mahal. There was a revenue survey in 1645, and Ex. A(5), is the map prepared in that survey of village Shankarpur. There was a default of revenue, and the estate was purchased by Government in 1837. Thereafter there was a certain temporary settlement, but a permanent settlement took place in 1873. There was again default of Government revenue and the estate was purchased in December 1903 by the Government. Thereafter, settlement was made under Regulation VII [7] of 1822, and the map (EX. A), was prepared. The Cadastral Survey proceedings commenced in 1907 and the final publication of the record of rights was made in 1912. The maps prepared in this cadastral survey are Ex. I (c) and J to J (2). According to the appellant, the maps EXS. A (5) and A would clearly show the true boundaries between the two villages Shankarpur and Sabalpur Babura. On the other hand, the maps prepared during the cadastral survey clearly show that the boundaries between the two villages are according to the case of the plaintiffs.

(2.) Various contentions had been raised before the Court below namely, that a suit for demarcation of boundaries between two legal estates does not lie in a civil Court, that since proceedings for demarcation had been taken under the Bengal Survey Act (Act V [5] of 1875) and having regard to the provisions of Section 62 of that Act, no civil suit lay, that all the landlords of the village had not been impleaded in the suit, and that the plaintiffs ought to sue for a declaration of title to the lands in question and for recovery of possession. In the written statement, a specific plea had been taken that the suit was barred by limitation. Unfortunately, the Subordinate Judge did not frame an issue on this point. The Subordinate Judge was of the opinion that the question of possession did not arise in the suit and as such it was not necessary for the plaintiffs to seek for a declaration of title and confirmation of possession, or in the alternative for recovery of possession. Section 43, Specific Relief Act was, therefore, no bar to the suit. The suit was accordingly decreed and the Subordinate Judge directed that a preliminary decree for demarcation of the boundaries and appointment of a commissioner who will measure the lands on the basis of 1909-1910 maps by fixing pillars be passed. Against this decision, the present appeal has been preferred.

(3.) When the appeal came on for hearing on 6th December 1949, the Bench by its order No. 31 of that date decided that the plaintiffs should pay ad valorem court-fees on the plaint and the appellant should pay ad valorem cour-fees on the memorandum of appeal, being of the opinion that the plaint did seek consequential relief.