RAM KISHAN Vs. PAHLAD

JUDGEMENT

(1.) This second appeal arises out of a suit for the recovery of possession of an area of 11 acre which according to the plaintiff has been seized by the defendants. The parties are tenants of two adjoining plots and the only question at issue is whether defendants have in fact made any encroachment upon the plaintiff's plot. The learned Judge of the lower Appellate Court has found in favour of the defendants and has dismissed the suit. The argument in appeal is that he has ignored a decision in a previous suit, No. 523 of 1928, which is res judicata between the parties.

(2.) It appears that the plaintiff's plot in the settlement before the present one was recorded as having an area of 8 acre and the defendants adjoining plot as having an area of 31 acre. In the present settlement the plaintiff's plot was shown as having an area of 62 acre and the defendants plot as having an area of 38 acre. That was in the year 1900. In 1928 the plaintiff instituted a suit saying that the defendants had encroached upon his land to the extent of 18 acre the difference between 8 acre and 62 acre. The par. ties, as it appears from the judgment of the learned Munsif who decided that suit, did not produce any oral evidence but were prepared to rely upon the inspection notes and measurements made by the Court. The learned Munsif at that time went to the place and made some measurements coming to the conclusion that the area of the plaintiff's plot was 73 acre. He found that there had been no interference with the boundary between the two plots and consequently dismissed the suit but gave the plaintiff a declaration that he was in possession of an area of 73 acre.

(3.) It has been held in the present suit that the plaintiff's plot has an area of 62 acre but that there has been no encroachment. The argument in second appeal is that the previous finding that the plaintiff was in possession of 73 acre is res judicata and therefore it should have been held that there was an encroachment of 11 acre. This argument in my view is based on a misconception. These measurements of area are to my mind only intended to be descriptive. The records relate primarily to maps which show or ought to show the existing boundaries, and the intention of the record merely is that any particular person is entitled to the land within those boundaries. An attempt is made to measure the land and to give the area by way of description, but it cannot the expected that the measurements are meticulously accurate. In subsequent suits, such as that which has given rise to this appeal and such as that of 523 of 1928, measurements are made, but there again certain discrepancies are almost certain to occur, because it is notorious that the tapes or other instruments of measurement with which these measurements are made are not very accurate. If a tape is used, it may have been stretched through previous use or there may be discrepancies owing to the force which is used in pulling the tape at the time of measurement. Unless it can be shown that there has been a disturbance of the actual boundary marks on the site, any argument based on measurements is of very little value and an argument based on area is of less value still, because there may have been an encroachment in any direction or in any part of the plot.