SARAT CHANDRA SINGH Vs. CHANDRA MOHAN BANDOPADHYA

JUDGEMENT

(1.) The subject-matter of the litigation which has given rise to these appeals is an inland sheet of water known as Beel Sonadanga in the deserted bed of the river Bhagirathi. The plaintiff, who is the proprietor of Pergana Bagowan, claims the disputed property as situated within the ambit of his estate. His case is that in 1862 his predecessor-in-interest sued for recovery of possession of this property, but as it was found that the predecessors of the defendants had at that time a right of fishery therein, the suit was dismissed [Pertab Chunder V/s. Unoda Persaud (1863) Sevestre 754. He now asserts that since then the condition of things in the locality has changed and the beel has been completely isolated from the river so as no longer to form an adjunct or armlet thereof in any sense. Accordingly, he prays for a declaration that the defendants have lost the right of fishery found in their favour in the previous litigation, and that he is entitled to recover possession of the soil as well as the water, together with mesne profits. The defendants are proprietors of Jalkar Kasimpore in Pergana Ukra as also their patnidar and their izaradar under him. The claim has been resisted substantially by the patnidar, and his contention has been that the beel is part of his Jalkar Kasimpore, and that in any event, there has been no such change of the conditions of the locality since 1862 as to render inoperative the decree made in that year. It has further been pleaded in the alternative that if the condition of the locality has changed and the sheet of water has been isolated from the main channel of the river, such isolation took place more than 12 years before the commencement of the suit which is consequently barred by limitation. Upon these pleadings, several issues were raised, among which reference need be made only to three, namely, first, whether the disputed property is situated in the estate of the plaintiff known as Bagowan or within the estate of the defendants known as Ukra; secondly, if the disputed property is not part of Jalkar Kasimpore but is comprised within the estate of Bagowan, whether it has been completely isolated from the main channel of the river; and thirdly, whether the suit is barred by limitation. The learned Subordinate Judge had found upon the first of these issues, only partially in favour of the plaintiff. Upon the second question he has found against the defendants and has held upon the evidence that the complete isolation of the beel from the channel of the river took place in 1898. In this view he has answered the third question in favour of the plaintiff. The result of his decision, therefore, has been to give the plaintiff a decree for possession of that portion of the beel which is found by the Commissioner to be comprised within his estate. Against this decree, both parties have appealed to this Court. On behalf of the plaintiff, it has been argued that the decision upon the question of the true boundaries of the plaintiff is erroneous, as it is founded upon the Revenue Survey Map of 1855-7, whereas it ought to have been rested upon the map of Major Rennell which was published about the year 1780, although the survey upon which it was based was made by Major Rennell and his coadjutors during the years 1764 to 1773. On behalf of the defendant, the decision of the Subordinate Judge has been assailed on three grounds, namely, first, that the Court below ought to have held upon the evidence that the condition of the locality has not materially altered since 1862 and that the previous decision is still operative between the parties secondly, that if the condition of the locality has changed, the alteration took place more than 12 years before the suit; and, thirdly, that the defendant is entitled to enjoy the right of fishery in the disputed sheet of water which he and his predecessors have exercised for many years past, independently of the question, whether or not the beel has been now completely isolated from the main channel of the river.

(2.) In so far as the appeal of the plaintiff is concerned, there is clearly no substance in it. His contention is that the rights of the parties ought to have been determined, not with reference to the survey map but on the basis of the map of Major Rennell. As has been pointed out, however, by the Commissioner, there are serious difficulties in connection with the reproduction of the map of Major Rennel and its comparison with the locality. In the first place, there is no permanent land mark within a convenient distance from the disputed locality which might furnish a satisfactory test to determine whether the reproduction is correct or not. In the second place, the exact locality in Calcutta, which was adopted by Major Rennell as his starting point, is not definitely known, and even a small error in the assumption, we make in this respect, may lead to a substantial difference in the result. In the third place, as has been repeatedly pointed out by this Court, the map of Major Rennell was not prepared for revenue purposes, and its chief object was to show the course of rivers and the different routes passing through the country. There is further nothing to show that when the decennial settlement was made in 1789 which was made perpetual in 1793, the survey made by Major Rennell and his associates was adopted as the basis of the settlement. In fact, no evidence is available to show that the condition of the locality might not have changed considerably between 1764-73 when the survey was made, and 1789, when the decennial settlement took place. In the fourth place, the land marked Bugghea on the map of Major Rennell, which is alleged by the plaintiff to correspond to his permanently settled estate, Perganah Bagowan, has no ascertainable boundaries Under these circumstances, we are unable to uphold the contention of the appellant that the map of Major Rennell ought to be accepted as the basis for the determination of boundaries of the estate of the plaintiff. If we were to do so, we would have to use the map for a purpose for which it was never intended to he used: it would not be right to accept as a basis for the determination of the boundaries of permanently settled estates, a survey which had been made 25 years before for the purpose of showing mainly the courses of river and land routes throughout the country. [Markham on Indian Surveys, published by the order of the Secretary of State in 1878, page 398: Kally Kissen Tagore V/s. The Secretary of State R.A. No. 105 of 1896. (decided by Ameer Ali and Pratt, JJ. on the 21 June 18.98), Watson V/s. Sree Sunderi R.A. No. 52 of 1899; (decided by Maclean, C.J., and Banerji, J. on the 30 May 1901); The. Administrator General V/s. The Secretary of State R.A. No. 335 of 1901, (decided by Brett and Woodrooffe, JJ. on the 9 June 1904]. The proceedings in the Court below, therefore, cannot be successfully challenged. The Commissioner as well as the learned Subordinate Judge have done the best they could with the map of Major Rennell, which has been rightly used to determine the course of the river Bhagirathi before the time of the Permanent Settlement. But the boundaries of the estate of the plaintiff have been determined with reference to the survey map which is practically the only material available for the purpose. No doubt, as observed by their Lordships of the Judicial Committee in Jagadindra Nath Roy V/s. Secretary of State 30 C. 291 : 5 Bom. L.R. 7 : 7 C.W.N. 193 : 30 I.A. 44, it cannot be presumed as a matter of law that the boundaries of an estate as shewn on the thak or the survey map are identical with the boundaries as they stood at the time of the Permanent Settlement; but it is open to the Court to presume, in the circumstances of a particular case, that the condition of the locality has not changed materially between the date of the Permanent Settlement and the time of the Revenue Survey, [See also Ananda Hari v. Secretary of State 3 C.L.J. 316 and Hemanta Kumari V/s. Secretary of State 3 C.L.J. 560 : 1 M.L.T. 175]. In fact, in the present case if such presumption was not made, the plaintiff would find it impossible to establish that the disputed property or any portion thereof is situated within the ambit of his permanently settled estate. We must consequently overrule the objection taken by the plaintiff in his appeal.

(3.) In so far as the appeal of the defendant is concerned, it is in our opinion equally unable. The first ground urged on behalf of the defendant is that the decision in the litigation of 1862 operates as res judicata and that the condition of the locality has not altered since then so as to make that decision inapplicable. It may be conceded that the decision in the suit of 1862 is conclusive upon the question of the then condition of the locality, namely, that the disputed sheet of water was connected at that time with the channel of the flowing river Bhagirathi; but the question of the condition of the disputed property at the time of the commencement of the suit, that is, on the 2 February, 1905, has to be determined upon the evidence. The report of the Commissioner who made the local investigation and the oral evidence of the plaintiff are conclusive upon the point. It has been proved beyond the possibility of dispute that whereas at the date of the previous suit boats used to pass up and down for the greater part of the year over the channel which then connected the flowing river with the disputed property and the water was considered as holy as Ganges water by the people of the neighborhood, at the time when this suit was commenced, to communication remained between the flowing river and the disputed property, and the consequence of this isolation was that the water had lost all sanctity in the estimation of the people of the locality. The evidence adduced on both sides makes it reasonably plain that it is during the high floods only that boat traffic becomes possible and this condition continues only during the exceptional periods when the river practically inundates the surrounding country. In so far, therefore, as the first ground urged in the appeal of the defendant is concerned, it cannot be sustained, and the disputed sheet of water has been rightly treated by the Court below as completely isolated from the flowing river.