AMRITA SUNDARI DEBI Vs. MUNSHI SERAJUDDIN AMED CHOWDHURY

JUDGEMENT

(1.) The subject-matter of this litigation is a large tract of alluvial land formed in the bed of the river Ganges, also called Kirtinasha, in the District of Faridpur. The plaintiffs claim the land as included within village Bhaga. The defendants claim the land as comprised within village Sakhipura. The present suit was commenced on the 26 September, 1907, and terminated in the trial Court on the 25 April, 1910, with a partial decree in favour of the plaintiffs. The defendants thereupon appealed to this Court. On the 31 July, 1914, the appeal was allowed and the decree of the Subordinate Judge was discharged. It was declared that the plaintiffs were entitled to possession of such portion of the disputed lands as lay within the thak boundaries of the property known as Bhaga char, char Datali and char Lasti. The case was remanded to the Subordinate Judge in order that the thak boundaries of the chars mentioned might be relaid by a Commissioner who would be free to take evidence to determine the tri- junction point from which the thak line was to be relaid. The judgment of this Court which has been reported - Amrita Sundari V/s. Serajuddin (1914) 19 C.W.N. 565 shows that one of the points argued in the appeal was, whether the decree was to be made on the basis of the thak map or the survey map. This Court came to the conclusion that the decree should be based not on the survey map but on the thak map, after the latter had been relaid with as much accuracy as practicable. We need not recapitulate all the reasons assigned in support of this view; but one circumstance may be usefully recalled. This Court found that the features of the land had been changed by diluvion which took place in the interval between the thak proceedings and the revenue survey; consequently, any disagreement between the thak line and the survey line was attributable, prima facie, not to the inaccuracy of the thak measurements but to the altered condition of the lands surveyed. The result was that the case was remitted to the trial Court for reconsideration.

(2.) The Subordinate Judge after remand appointed a Commissioner to hold a local investigation and to prepare a case map so that the direction of this Court might be carried out. The Commissioner received the commission on the 8 December, 1915, and submitted his final report on the 21 January, 1917. The report of the Commissioner and the annexures thereto leave no room for controversy that the enquiry was conducted by him with great thoroughness. There was a dispute before the Commissioner as to how the thak line was to be relaid. The defendants urged that the starting point to be adopted was a point towards the south west of the disputed land, where the Dear a authorities had, in 1878, posted an iron pillar to indicate the tri-junction point of mouzas Bhaga, Nimua and the river. The plaintiffs urged, on the other hand, that the starting point should be taken towards, the south-east of the disputed land as the tri-junction point of mouzas Bhaga, Nimua and Tarabunia. The Commissioner rejected the second alternative and gave prima facie sufficient reasons for his opinion that the tri-junction point of Bhaga, Nimua and Tarabunia could not be ascertained with reasonable approach to accuracy, and that the tri-junction points as identified by the defendants were correct. The Commissioner further explicitly recorded his view that the thak map of char Bhaga could not be correctly relaid except by the process already adopted by the. Deara authorities. He then prepared a map on this basis and showed the portion of the disputed land which fell within the village claimed by the plaintiffs.

(3.) The Subordinate Judge was not satisfied1 with the result of this enquiry. He held that the south-eastern point was entitled to preference over the south-western point on account of its proximity to the disputed land. He then proceeded to investigate whether the tri-junction point at the south-east corner could be presumed to be identical with the revenue survey point and he came to the conclusion that a presumption should be made in favour of the identity of the two points. The Subordinate Judge argued that, as the south-east tri-junction point was in the middle of the island on the bank of a canal, it was not likely to have been affected by river action during the season which intervened between the thak proceedings and the revenue survey. The course adopted by the Subordinate Judge, is in our opinion, obviously inadmissible. In the first place, he assumes that there had been no changes in the situation of the disputed land during the period mentioned. This is directly contrary to the finding contained in the judgment of this Court. As that judgment had become final, neither of the parties litigano was entitled to get round the conclusions then adopted on evidence. In the second place, the Subordinate Judge assumes that the tri-junction point had been correctly depicted on the survey map. This was negatived by the judgment of this Court pronounced on the last occasion. What has happened in substance is that the Subordinate Judge, after remand, has made a decree on the basis of the survey map which was found unreliable by this Court when the order of remand was made.