DEB NARAIN KUNDU Vs. AMRITA LAL SIL

JUDGEMENT

(1.) The subject-matter of the dispute which has given rise to this appeal is a strip of land lying within the Madhupur Municipality. The land adjoins the plaintiff's house and is claimed by him to be a part of his holding. In December 1932 he applied to the Chairman of the Municipality for permission to erect a building on the land. The Municipality rejected his petition, denying his title to the land and claiming it as a public road. Hence the plaintiff brought the present suit for a declaration of his title and confirmation of possession over the disputed land. The suit was contested substantially on the ground that the land in suit is not the property of the plaintiff but a public municipal road The learned Subordinate Judge who tried the suit dismissed it, holding that the plaintiff failed to prove his title and that the disputed land was being used as a public road. On appeal to the learned Deputy Commissioner, Santal Parganas, he confirmed the decision. Hence this second appeal by the plaintiff.

(2.) The plaintiff claims title to the disputed land on the basis of (1) a sale deed Ex. 2 executed on 20 April 1920 by one Mr. Monnier and (2) a mourasi mokarrari deed Ex. 4 executed on 23 January 1891 by the then proprietor of mouza Sheikhpura, both in favour of the plajntiff's predecessor. Both these deeds Ex. 2 and Ex. 4 comprise practically the same area, about 41 bighas. The later deed Ex. 4 had the effect of converting what was mulraiyati interest acquired from Mr. Monnier by the earlier deed Ex. 2 into a mourasi mokarrari tenure. The disputed land lies on the boundary between two mouzas Madhupur and Sheikhpura, both of which are within the Madhupur Municipality, mouza Madhupur being to the west of Sheikhpura. In both the deeds Exs. 2 and 4, boundaries of the lands are given and the plaintiff claims that the disputed land falls within the area comprised within these boundaries. To ascertain the identity of the disputed land the plaintiff prayed for a local investigation by a survey knowing commissioner. The learned Subordinate Judge allowed.

(3.) This prayer by his order dated 28 November 1933 which runs thus: Parties represented. Plaintiff applies for the. deputation of an Amin Commissioner to survey the land in suit and prepare a map showing the position of the disputed land in relation to the lands covered by the patta granted by the Ghatwal of Pathrole and the deeds of relinquishment of the previous holders of the land, also whether the land falls within the road of the present survey map. Babu Hem Chander Ghosh, Retired Kanungo, is appointed commissioner to do this. He will in addition compare the location of the land in suit in the map of the 1905 settlement and after consulting the records of that settlement prepare a map showing how the land was then recorded. He will also by actual measurement on the spot locate the exact position of the land in suit in the municipal town map prepared at the time. Mr. Eaves was the Chairman of the Madhupur Municipality. Fix 21-12-83 for his report. Plaintiff to deposit Bs. 25 as the cost of the commissioner.