SADHU CHARAN BISWAS Vs. PABAN MANDAL BEING DEAD HIS HEIRS AND LEGAL REPRESENTATIVES RADHA CHARAN MANDAL

JUDGEMENT

(1.) The subject-matter of this appeal is a narrow and long strip of land about 4 1/2 bighas in area. The plaintiff who is the appellant in this appeal claims possession of 2 bighas in khas and 1 1/2 bighas through tenants, the pro forma defendants. The plaintiff and the principal defendant hold two blocks of land under the Roys of Narail either directly or through intermediate tenants The plaintiff claims the land in suit as appertaining to his Dar Ganti which is comprised in Dags Nos. 382, 383, 370 to 374. The defendants say. that the said land appertained in Dags Nos. 365 and 367 which are included within their tenure under the Roys. The defendants lands are admitedly towards the west of the plaintiff's land and the disputed land is in between. A survey was made under Chap. X of the Bengal Tenancy Act. A map was prepared and the Record of Rights was made final on June 11, 1936. The Record of Rights recorded Dags Nos. 382, 383, 370 to 374 in the possession of the plaintiff and Dags Nos. 365 and 367 in the possession of the defendants as appertaining to their respective tenures. It is the defendants case that the settlement map is correct. The plaintiff wanted to make the case that the settlement map does not show correctly the lands of the respective tenures of him and of the defendants and that he has lands further to tie west but this part of the plaintiff's case failed in the Court of first instance.

(2.) The Court of first instance and the lower Appellate Court have proceeded on the footing that the settlement map is a correct representation of the locality and of the respective rights of the plaintiff and the principal defendants. In my judgment, this is the position which must be taken to be finally settled, that is to say, the parties can only have according to the correct relaying of the settlement map. A. Civil Court Commissioner was appointed for the purpose of relaying the settlement map and other maps. On the relaying of the settlement map the Civil Court Commissioner came to the conclusion that a strip of land, 2 bighas in area out of the disputed land fell within the plaintiff's tenure. The Court of first instance accepted this relaying to be correct and awarded the plaintiff possession. An appeal was taken to the Subordinate Judge by the defendants. it is quite clear that so far as the title to the land is concerned, it would depend upon the question as to whether the report of the Civil Court Commissioner is correct or not. The Court of first instance accepted the report. The lower Appellate Court did not accept it. But the reasons given by the lower Appellate Court in not accepting the Commissioner's relaying of the settlement map are based on pure surmises and not on legal evidence. In the first place, the learned Subordinate Judge assumes, for there is no evidence on the record, that the Settlement Authorities must have taken the Pagar as the boundary line between the plaintiffs tenure and the defendants . On that assumption the learned Subordinate Judge says that inasmuch as the Commissioner's relaying would include lands to the west of the Pagar within the plaintiff's Dags the relaying of the Civil Court Commissioner of the settlement map must be incorrect. Then the learned Subordinate Judge takes in his hands pair of dividers and he measures the different points of the settlement map with the Civil Court Commissioner's map. They being not on the same scale, he makes adjustments in the pair of dividers and on such a comparison which of necessity must be a very imperfect one comes to the conclusion that the Commissioner's plotting is incorrect to an appreciable degree. In my judgment, in so proceeding, the learned Subordinate Judge has discarded the evidence on the point and has proceeded either on pure surmise or his substituted his evidence practically in place of the evidence on the record. I cannot support the finding of the learned Subordinate Judge when he says that the Commissioner's plotting is inaccurate. Whether it is inaccurate or not is to be considered on the evidence on the record. The learned Subordinate Judge in discussing the question of limitation has assumed that the settlement map and the entry in the Record of Rights are correct and inasmuch as he held that the lands in suit or a portion thereof is not within the plaintiff's Dag as mentioned in the settlement map, he discarded the evidence of possession adduced on behalf of the plaintiff as being inconsistent with the Record of Rights. His estimate, therefore, of the evidence of possession has been made to depend upon the correctness of the relaying of the settlement map by the Civil Court Commissioner. Inasmuch as I have held that his findings on the correctness of the plotting of the settlement map are not good findings, the finding on the question of limitation arrived at by the learned Subordinate Judge loses much of its force.

(3.) In the above view of the matter, I set aside the judgment and decree of the learned Subordinate Judge and remand the case to the lower Appellate Court in order that the appeal before it may be disposed of according to law. Costs will abide the result.