BHUP NARAYAN SINGH Vs. HIRA LAL

JUDGEMENT

(1.) This is an appeal by defendant 4, the Khorposhdar of mauza Pari. Plaintiff holds a mokarrari of mauza Kudagara in the district of Manbhum, lying immediately to the south of Pari and two other mauzas all included in the district of Hazaribagh. Plaintiff's case was that during the Survey and Settlement operations in Manbhum he found, when pointing out the boundaries of Kudagara, that the boundary between the two districts had been recorded in the Hazaribagh settlement to the north of the proper boundary. He raised a boundary dispute accordingly. But the Survey authorities decided to adopt the boundary laid down in the Hazaribagh settlement. Two hillocks, called Ranidera and Harapahari (otherwise called Karmatungri) were thus excluded from Kudagara and included in Pari and the other villages lying along the northern boundary of Kudagara. Plaintiff therefore sued for a declaration that the hillocks appertained to his mauza of Kudagara and that the settlement record regarding the same is erroneous. The defence was that the record was correct, that the suit was barred under Section 62, Bengal Tenancy Survey Act, 1875, and also barred by limitation, as the defendants were, and the plaintiff and his predecessors had never been in possession of the disputed lands. It was also urged that the effect of the Survey entry being the dispossession of the plaintiff the suit as framed could not proceed. These pleas were all accepted by the Munsif who first tried the suit and who found on the evidence that the Commissioner who had been deputed to lay down on the settlement map the Revenue Survey boundary line on which plaintiff's claim was based had not done so correctly. Plaintiff preferred an appeal which was heard by Babu Narendra Nath Banarji Subordinate Judge.

(2.) This officer held that though the Commissioner's map may be incorrect, it was impossible to determine the question of plaintiff's dispossession without correctly ascertaining the Revenue Survey line and its deviation if any, from the line adopted at the Cadastral Survey. He also held that as the Survey and Settlement authorities had not addressed themselves to this question, their adoption at the time of the Manbhum survey of the line adopt ted at the Hazaribagh Survey was not such a decision as to constitute a bar under Section 62, Bengal Survey Act, to the suit. Under the erroneous impression that plaintiff had claimed confirmation of possession, he also held that plaintiff was entitled to sue if his right was found to have been invaded by the survey boundary. He accordingly allowed the appeal and remanded the case to the lower Court for trial according to some directions. The Munsif who dealt with the case on remand came to much the same conclusions as the Munsif who had first disposed of the case, though in view of the finding of the appellate Court that the suit was not barred by the provisions of the Bengal Survey Act, he expressed no independent opinion on that point but felt compelled to hold that the suit was not barred by those provisions. As he dismissed the suit, plaintiff appealed and the appeal was heard by the Additional District Judge who allowed it after holding that the suit was not barred by Section 42, Specific Relief Act as the plaintiff was in actual possession of the disputed land. On the question whether the suit was barred by Section 62, Bengal Survey Act, the learned Additional District Judge does not seem to have expressed any definite opinion of his own, probably because he felt that he had no authority to sit in judgment on the view of the Subordinate Judge who had first heard the appeal and ordered a remand--a remand which had been previously challenged in the High Court, but without success because it had been ordered under Order 41, Rule 23, Civil P.C. It seems however from the observations of the Additional District Judge that he was inclined to take the view that Section 62, Bengal Survey Act, was no bar to the suit because the Manbhum Settlement authorities had not made any independent inquiry but had merely accepted as correct the decision of the Settlement authorities in Hazaribagh at the time they had surveyed the mauzas Jumra, Pari and Roria which lay immediately to the north of Kudagara.

(3.) It has been contended on behalf of the Khorposhdar of Pari that the finding of the lower appellate Court as regards plaintiff's actual possession of the disputed land is vitiated by errors of law. The learned advocate for the plaintiff-respondent has urged that it is a finding of fact, but it is clear that a finding of fact is not binding in second appeal if it is marked by errors of law. The Kudagara Record of Eights is by statute entitled to the presumption of correctness, even if it followed the Hazaribagh Record of Eights in the matter of the boundary line between the two districts. It is true that there may have been no boundary dispute raised at the time the southern boundary of the mauzas in Hazaribagh was determined in the course of the Survey and Settlement of that district, but as was pointed out in Mazharul Ekbal V/s. Gopal Lal Ray 1924 Pat 719 the entry in the Record of Eights operates in the same way between landlord and tenant, as between landlords of the same or of the neighbouring estates or, it may be added of neighbouring mauzas, and the Hazaribagh Record of Eights which was adopted for Kudagara in the matter of the disputed boundary line cannot be ignored as the lower appellate Court has done merely on the ground that it is not shown to have been based on the decision of any boundary dispute. It must be added that it has never been the case of the plaintiff that either since the Hazaribagh Record of Eights which was finally published in 1912, or since the disposal in February 1920, of the boundary dispute raised by him in the survey of Kudagara, he has come into fresh possession of the land lying between the Revenue Survey, and the Cadastral Survey boundaries. The lower appellate Court has ignored all these considerations and arrived at its finding of possession in favour of the plaintiff "on the evidence of possession as adduced by the parties." The learned Additional District Judge has preferred the evidence of the plaintiff's witnesses to that of the witnesses for the Khorposhdar of Pari on the ground that there are no reliable documents on the side of the defendants."