MUNICIPAL COMMISSIONER, GAYA MUNICIPALITY Vs. MTRUP KALIA

JUDGEMENT

(1.) In the survey of the town of Gaya which was made in 1914 under the Calcutta Survey Act in consequence of a resolution of the Municipality passed under Section 223(a), Bengal Municipal Act of 1884, the plaintiff was recorded in respect of survey plot 7664. South of this plot there runs a lane which has been recorded as survey plot 7665. On the south side of this lane and opposite the plaintiff's plot is a plot of Mathura Prasad. The plaintiff was prosecuted by the Municipality in 1932 in respect of an encroachment on the lane, plot 7665, and was convicted. The present suit was instituted in 1934 for a declaration of the plaintiff's title to and confirmation of possession over that portion of the lane, plot 7665, as is contiguous to her plot. The first Court dismissed the suit, but this decision was reversed by the appellate Court which decreed it. On appeal, the defendant- appellant relies on Section 22, Calcutta Survey Act, as a bar to the suit. Section 20, Survey Act, provides for objections to the survey being lodged with the Superintendent and for the decision of any objections so lodged. Section 21 provides that after the objections have been decided, the Local Government, if it approves of the survey, shall signify its approval by a notification in the Gazette. The survey of the town of Gaya was approved by Notification No. 3653 M, dated the 12 March 1917. Section 22 is in the following terms:

(2.) No suit shall lie to set aside any demarcation or boundaries made under the provisions of this Act, unless brought within one year from the date of the notification mentioned in the last preceding section.

(3.) It is on this section that the appellant relies as a bar to the plaintiff's suit. On behalf of the respondents it is contended that an entry made in the survey proceedings has not the effect of destroying or creating title and reference was made to the decisions relating to entries in the Record of Rights under the Tenancy Acts and to suits for the correction of such entries. It was contended that although the period of limitation prescribed for a suit for correction in the Record of Rights is only six years from the date of the record, yet a declaratory suit may be brought by a person aggrieved by an entry within twelve years from the date when any attempt is made to interfere with his possession. On the analogy of oases of that class it is argued that Section 22 does not bar a declaratory suit of the present nature and that a declaratory suit is not a suit to set aside any demarcation or boundaries. Reference to the cases relating to the entry in the Record of Bights is, in my opinion, beside the point. An entry in the Record of Bights merely provides a piece of evidence to which a statutory presumption attaches. No statutory consequence follows from neglecting to institute a suit to challenge an entry in the Record of Bights except that in any litigation in which that entry is put in evidence, it must be presumed to be correct until the contrary is proved by evidence. The scope of Section 22, Survey Act is, in my opinion, quite different. It definitely bars any suit not brought within a year from the date of the notification approving the survey, if the object of the suit is to set aside any demarcation or boundaries made under the Act. It is fallacious to contend that a mere declaratory suit has not the effect of setting aside any demarcation or boundaries. The boundaries stated in the survey are supposed to correspond with the title and, therefore, any decision affecting the title necessarily affects the boundaries that have been demarcated and when the plaintiff sues for a declaration that her title exists over an area in excess of the area included within the boundaries that have been demarcated, the suit is in effect a suit to set aside the demarcation of the boundaries. The reason for a provision of this nature in an Act such as the Calcutta Survey Act is, I think, quite plain. In order to prevent municipal undertakings, such as drainage, water-works and road schemes being held up, the claims of persons, who dispute the Municipality's title to land affected by these schemes, it is desirable that the disputes should be settled once and for all as soon as possible and the Act provides a period of one year in which such disputes must be settled. In my view, therefore, the present suit was barred by the provisions of Section 22 of the Act with the result that this second appeal must succeed and the plaintiff's suit be dismissed with costs throughout. Leave to appeal under Letters Patent is refused.