JNANENDRA NATH NANDA Vs. JADU NATH BANERJI

JUDGEMENT

(1.) The subject matter of the suit out of which this appeal arises is a strip of land near the boundary of two adjoining lots in the Sunderban area. They are lots 114/1 and 114/2, the former being to the west of and adjoining the latter. Before 1896 the lands comprised in these lots were waste lands of the Government In that year two leases for terms of 40 years were granted by the Secretary of State for India in Council to the plaintiff's and the defendant's predecessors, the leases being executed by the Sunderban Commissioner on behalf of the Secretary of State for India in Council. The first lease was in respect of the lands described as the first portion of lob 114 and is dated 12 September 1896 and was granted to the plaintiffs predecessor-in-interest (Ex. 1). The second lease was in respect of the lands of the second portion of lob 114 and was granted to the predecessor-in-interest of the defendants on 2nd December 1896. The eastern boundary of lob 114 (first portion) and the western boundary of lot 114 (second portion) is depicted by the same red line, as it must be, in the two maps attached to the said leases. In Ex. 1 the eastern boundary of lot 114/1 is described thus: Sunderbania Khal and a straight line bearing 228 drawn from a point on the bank of the said Sunderbania Khal to a point on the bank of the Godamathura Khal, in both the leases there is a clause (clause 12) which runs in these terms: That in the event of any boundary dispute arising between the lessee of this lot and the lessee of any adjoining lot already leased under the Waste Land Lease Rules, or which may subsequently be leased, the holders of this lease shall be bound to submit such dispute to the decision of the Commissioner of the Sunderbans, or other officer empowered by the Government to decide such disputes. The decision of the Sunderbans Commissioner, or other officer abovenamed, shall be appealable to the Board of Revenue and the decision of the Board of Revenue shall be final and binding on the lessees.

(2.) The office of the Sundarbans Commissioner has been abolished, but the functions of the said Commissioner are being perform-ed by the Collector of Khulna. In the last Cadastral Survey and Settlement, the strip of land in suit was recorded as appertaining to the defendant's lot e. g. lot, 114/2 and one particular dag was recorded as a low path. The plaintiffs in this suit say that the said lands appertain to their lot 114/1 and not to the defendants lot 114/2. They pray for a declaration on that basis that the entry in the settlement record is wrong and for an injunction on the defendants to restrain them from raising a bund on the disputed area. Although the consequential prayer is injunction, and not recovery of or confirmation of possession, I am of opinion that the dispute between the parties is a boundary dispute and comes within the terms of clause 12 of the leases. I am also of opinion that the said clause contemplated the decision of such disputes between the lotdars by the re-venue authorities and not by the Civil Court. How far the terms of the said clause can be availed of or enforced by the defendants is however a different question which I will deal with later on. One of the defences is based on this clause, which is that the Civil Court cannot decide the question of boundary dispute and consequently no such relief as is prayed for by the plaintiffs can be granted by the Civil Court till the plaintiffs obtain a decision in their favour of the boundary dispute from the revenue authorities mentioned in clause 12 of the lease. This defence has been overruled by both the Courts below, the appellate Court holding that the covenant contained in said clause is illegal and void, being hit by Section 28, Contract Act.

(3.) For the purpose of determining the eastern boundary line of lot 114/1, i.e. for locating the red line shown in the plans attached to the leases, a Commissioner for local investigation was appointed, He was directed to do the following things: (i) to determine the boundary line between lot 114/1 and lot 114/2, (ii) to relay the lease map on the settlement map, (iii) to report whether the disputed lands are covered by the plaintiffs lease (Ex. l), (iv) to draw up a map of the disputed land and (v) to note any special feature shown by the parties.