SM KUNDAN BAI AGARWALA Vs. SKH SAFDAR ALI

JUDGEMENT

(1.) Both these appeals arise out of a judgment and decree passed by the learned Additional District Judge of Manbhum-Singhbhum. In one (S. A. 1064 of 1956) the defendants are the appellants and in the others (S. A. 1291 of 1956) the plaintiffs are the appellants. The parties to this litigation are interested in coal mining rights in two adjoining blocks. The plaintiffs' block of coal-land comprises of 100 bighas and it is on the west, where" us, the defendants' block comprising of 50 bighas lies on the, east. The real dispute between the parties is about the common boundary line between these two blocks. The plaintiffs brought the suit for demarcation of the boundary line between these two blocks of coal-land and, furthermore, they claimed compensation, tentatively valued at one thousand rupees, from the defendants, on the allegation, that the defendants had extracted coal from under ground within the area, belonging to the plaintiffs. The trial Court decreed the suit, by determining the boundary line between the two blocks. It further held that the exact amount of damage, caused to the plaintiffs by the removal of coal by the defendants from their area, would be determined in the proceeding for final decree, in the light of the findings arrived at by that Court, in regard to the coal taken by way of removal of pillars, left during the working of the defendants' predecessor-in-interest, one Mr. B.C. Bhattacharji. Against the decree passed by the trial Court, the defendants preferred an appeal and the learned Additional District Judge, Manbhum-Singhbhum, has now passed a modified decree. He has confirmed the boundary line, as determined by the trial Court but he has set aside the portion of the trial Court's decree in regard to the plaintiffs' claim of damages, holding, that the plaintiffs have failed to prove that the encroachment was made by the defendants or that, they had suffered any loss or damage, on account of the removal of coal by the defendants from their area. That is why, both the plaintiffs and the defendants, have preferred two second appeals to this Court against the judgment.

(2.) The plaintiffs took the lease of their coal-lands, measuring 100 bighas, in May 1902. The defendants took their lease of 50 bighas in March 1937. To neither of these leases, was attached any plan. Before the defendants took their lease, one Mr. B.C. Bhattacharji was the lessee in respect of the said land but he had given his lease.

(3.) Learned counsel, appearing for the defendants-appellants, contends that, the determination of the boundary line, as made by the Courts below, on the basis of the report of the pleader-commissioner, has been completely vitiated, inasmuch as, the pleader-commissioner did not base his conclusions, with reference to the admitted joint survey map, prepared in February 1954, to which both the plaintiffs and the defendants were parties. This joint survey was conducted, as there arose some dispute between these two parties, in respect of their common boundary and both of them appointed one Mr. Paul to conduct a survey and to determine the respective areas of the parties. He made survey plans and drew certain maps at that time and both the parties signed those documents, as a token of their acceptance. In the present litigation, a commissioner was appointed, by name Mr. Biswas, to conduct a local investigation and to determine the two areas, belonging to the two parties, with reference to this joint survey plan, prepared by Mr. Paul. The pleader-commissioner submitted a report to the Court saying that he could not determine, with reference to that joint survey plan the fixed points, from which he could start the measurements and as such he returned the writ. Subsequently, this gentleman, Mr. Biswas, was again appointed as a commissioner but, this time, he was asked to prepare the boundary line between the two blocks of land in question, with reference to the certified copies of the maps, that had been submitted by the previous lessee, Mr. B.C. Bhattacharji, to the mining department. He found that only one of those maps, which has been marked as exhibit 1 in the present case, was helpful to determine the starting point of measurement and as such, depending upon that, he prepared the boundary line of the two blocks. The report and the map submitted by the commissioner second time, were objected to, by the defendant, but the trial Court, on a consideration of the entire evidence on record, both oral and documentary, came to the conclusion, that, the boundary line indicated by the pleader-commissioner Mr. Biswas second time, was correct, and, accordingly, it decreed that part of the plaintiffs' claim, in terms of that report and map. Learned counsel, appearing for the defendants, now contends that, since the plaintiffs averred in their plaint that there was a joint survey map prepared in 1954, and that the parties were bound by the boundaries indicated therein, and that, they claimed the relief of the determination of the boundaries through Court, on the basis of that joint survey map, it was not open to the Courts below, to depart from that joint survey map and to adopt another line of boundary, with reference to the other map, which had been submitted by Mr. Bhattacharji. His argument is, that, the dispute about the boundary, these two blocks, had been settled between the parties, by that joint survey map, and, therefore, what was open to the plaintiffs, as they had made out their case in the plaint itself, was that, they could demand the demarcation on the basis of that document alone. This contention has more than one infirmity in the first place, on a reading of the plaint, and particularly the prayer portion, it cannot be said that, the plaintiffs wanted the Court to determine the boundary of their area, with reference to that joint survey map. They simply asked that the boundary should be demarcated. While referring to the historical part of the case, they had mentioned that, a joint survey had been conducted sometime before, at the instance of both the parties. Secondly, it has not been shown by the defendants, either by cross-examination of the pleader-commissioner, Mr. Biswas or by bringing any other material on the record, that the present line indicated by Mr. Biswas and accepted by the Court, is different, in any way, from the line, that had been shown in the joint survey map. Therefore, the defendants cannot entertain any grievance at all, on this score.