Imam, J.:— The defendant is the appellant. The plaintiffs-respondents had instituted a suit for demarcation of boundaries of two villages. They are the proprietors of village Sabalpur Babura, tauzi Nos. 817, 818, 733 and 744. Adjacent to this village is village Shankarpur Todar alias Kutubur, tauzi No. 3748. The proprietor of village Shankarpur Todar is the khas Mahal. There was a revenue survey in 1845, and Ex. A(5), is the map prepared in that survey of village Shankarpur. There was a default of revenue, and the estate was purchased by Government in 1837. Thereafter there was a certain temporary settlement, but a permanent settlement took place in 1873. There was again default of Government revenue and the estate was purchased in December 1903 by the Government. There, after, settlement was made under Regulation VII[7] of 1822, and the map (Ex. A), was prepared. The Cadastral Survey proceedings commenced in 1907 and the final publication of the record of rights was made in 1912. The maps prepared in this cadastral survey are Ex. 1(c) and J to J(2). According to the appellant, the maps Exs. A(5) and A would clearly show the true boundaries between the two villages Shankarpur and Sabalpur Babura. On the other hand, the maps prepared during the cadastral survey clearly show that the boundaries between the two villages are according to the case of the plaintiffs.

2. Various contentions had been raised before the Court below namely, that a suit for demarcation of boundaries between two legal estates does not lie in a civil Court, that since proceedings for demarcation had been taken under the Bengal Survey Act (Act V[5] of 1875) and having regard to the provisions of S. 62 of that Act, no civil suit lay, that all the landlords of the village had not been impleaded in the suit, and that the plaintiffs ought to sue for a declaration of title to the lands in question and for recovery of possession. In the written statement, a specific plea had been taken that the suit was barred by limitation. Unfortunately, the Subordinate Judge did not frame an issue on this point. The Subordinate Judge was of the opinion that the question of possession did not arise in the suit and as such it was not necessary for the plaintiffs to seek for a declaration of title and confirmation of possession, or in the alternative for recovery of possession. Section 42 of the Specific Relief Act was, therefore, no bar to the suit. The suit was accordingly decreed and the Subordinate Judge directed that a preliminary decree for demarcation of the boundaries and appointment of a commissioner who will measure the lands on the basis of 1909-1910 maps by fixing pillars be passed. Against this decision, the present appeal has been preferred.

3. When the appeal came on for hearing on 6th December 1949, the Bench by its order No. 31 of that date decided that the plaintiffs should pay ad valorem court-fees on the plaint and the appellant should pay ad valorem court-fees on the memorandum of appeal, being of the opinion that the plaint did seek consequential relief.

4. The Government Pleader on behalf of the appellant has mainly contended that the decision of the Subordinate Judge is defective in the sense that he had failed to decide on the question of possession and title which must obviously arise for consideration having regard to the state of the pleadings and the evidence in the case. He further contended that the question of limitation was of the utmost importance, and the Subordinate Judge should have framed an issue in this regard. He further contended that the Subordinate Judge had completely misunderstood the decisions in Kavasji v. Hormasji Nassarvanjishet, 29 Bom. 73 : (6 Bom. L.R 782) and Appayya v. Koraga, A.I.R (18) 1931 Mad. 19 : (129 I.C 461). Kavasji v. Hormasji Nassarvanjishet, 29 Bom. 73 : (6 Bom L.R 782) makes specific reference to the decision in the case of Wake v. Conyers (1759) 1 W. & T.L.C (7Ed.) 170 where Lord Northington made the following observation:

“The Court has, in my opinion (and if the patties are not satisfied, they have resort elsewhere), no power to fix the boundaries of legal estates, unless some equity is superindueed by the act of the parties, as some particular circumstances of fraud, or confusion, where one party has ploughed too near the other, or the like, nor has this Court a power to issue such commissions of course, as here prayed.”

The Government Pleader, therefore, contended that the decision of the Subordinate Judge should be set aside and the entire case remanded to the Court below for re-trial. He conceded that in the circumstances if it was necessary for the plaintiffs to amend their plaint, they would be entitled to do so and to lead any fresh evidence which may be necessary in the circumstances. It follows, of course, when the entire case is being remanded for re-consideration, that the defendant will also be entitled to make such amendment to the written statement as may be necessary and to lead any further evidence which may become necessary in the circumstance of the case.

5. Mr. Harinandan Singh on behalf of the respondents, has pointed out that in fact after the decision of the Subordinate Judge, execution was taken out and the boundary pillars have been erected in accordance with the decision of the Subordinate Judge. In the circumstances, it was not necessary to remand this particular case as no harm would be done to the defendant if there was merely a map showing the true boundary between the two villages. He further strongly relied upon the maps, Exs. 1(c) and J to J(2), to show that really the lands in question appertain to village Sabalpur Babura and that the true boundary line between Sabalpur Babura and Shankarpur was as shown in these maps and not the map Ex. A or Ex. A(5). He contended that it was not necessary for the plaintiffs to seek for a declaration of their title or for recovery of possession in a suit where they merely asked for demarcating the boundaries between the two villages and for the erection of pillars in accordance with the decision of the Court.

6. Having looked into the matter, I am satisfied that the decision of the Subordinate Judge as it stands cannot be sustained. It seems to me having regard to the pleadings as a whole, that it was essential for the Court below to decide on the evidence the question of possession as well as the question of title, as also the question of limitation. It was pointed out by the Government Pleader that the estate was permanently settled with the plaintiffs or their predecessors in interest by the Khas Mahal and that the map in connection with this settlement is Ex. A, that is to say, the basis of the title of the plaintiffs is practically derived from the map Ex. A, the correctness of which they ought not to be allowed to question now. The Government Pleader did not go into the question as to whether the maps prepared in the cadastral survey were more accurate than the maps, Exs. A and A(5), as he was merely asking for a remand. It should be made quite clear, however, that at no time did he concede that the maps in the cadastral survey were at all correct.

7. I think it is well settled that no suit is entertainable in a civil Court which is purely for demarcation of boundaries between two estates. There are statutory provisions in the Bengal Survey Act (Act V [5] of 1875) which authorise the Collector to determine such questions. There may be circumstances however in which the question of demarcation of boundaries between two estates may arise for decision by a civil Court in connection with the reliefs claimed in the pleadings by the parties. The expression, used by Lord Northington in Wake v. Conyers, (1769) 1 W. & T.L.C (7th Ed) 170 cited by Jenkins C.J in Kavasji v. Hormasji, 29 Bom. 73 : (6 Bom. L.R 782) should not be misunderstood. His Lordship was perfectly clear in the first instance that a Court has no power to fix, the boundaries of legal estates unless some equity is superinduced by the act of the parties, that is to say, certain acts of the parties resulting in certain equities arising which give the Court jurisdiction to put matters right. Lord Northington pointed out such as fraud, confusion or the like. In this connection the decision of the Subordinate Judge is not to my mind satisfactory. After referring to a certain Order sheet, Ex. K(1), of the year 1940, he came to the conclusion that there had been some confusion of boundaries created by the defendant. Then he goes on to say:

“From all these the conclusion is that there is a confusion on boundary between the parties, due to the fact that the plaintiff relies on 1909 map while the defendant on 1907 map. As the equity is superintroduced the suit for demarcation is maintainable.”

I may point out that the Subordinate Judge has used the expression “equity is superintroduced,” whereas the expression used by Northington was “equity is superinduced.” Finally the Subordinate Judge observed; “There is a confusion of boundaries which is created due two surveys of 1907 and 1909-1910. As such the plaintiffs are entitled to a decree for demarcation.” To my mind, there are conflicting findings here. At one stage, the learned Subordinate Judge seems to think that there was some confusion of boundaries created by the defendant, but later on seems to think that there was confusion because there are two conflicting maps. As to the finding that the confusion of boundaries was created at the instance of the defendant, he has not indicated as to what the evidence is in this connection. Reference to Ex. K(1) can in no circumstance, from what appears in the judgment of the Subordinate Judge, establish that the confusion of the boundaries was created by the defendant. Mr. Harinandan Singh, however, did contend that Ex. K(1) is the order sheet of the Khas Mahal Officer and from the order sheet it would be apparent that he had taken steps to interfere with the possession of the plaintiffs by erection of pillars. Consequently, the confusion of boundary as was to be found in the case was the creation of the defendant. It was, however, pointed out on behalf of the defendant that Ex. K(I) is the order sheet of the Collector acting under the provisions of the Bengal Surrey Act (Act V[5] of 1875). The Subordinate Judge has indeed nowhere suggested that Ex. K(1) is the order sheet of the Khas Mahal Officer. All that he held in connection with this order was concerning the objection made by the defendant that having regard to the provisions of Section 62 of the Bengal Survey Act, no civil suit lay unless there was an appeal against the decision of the Collector. As to this, the Subordinate Judge said that there was nothing to show in the order sheet that notices were issued and consequently there was no regular proceeding under the Act and as such he did not think it necessary to comply with its provisions. If boundary pillars were about to be erected in consequence of an order made by the Collector while proceeding under the Bengal Survey Act, 1875, one can hardly say that some confusion of boundaries was being created by the defendant. However it is not necessary for me to go into this or to give any final opinion. These are matters which no doubt the Court below will take into consideration when the occasion arises, if any submission is made I have merely referred to these matters to show that the decision of the Subordinate Judge is not one which can be sustained.

8. In the net result, the appeal is allowed, the decision of the Subordinate Judge is set aside, and the case is remanded to the Court below for fresh trial and disposal according to law. Both the parties will be entitled to amend their pleadings if it becomes necessary, and will be entitled to lead additional evidence the evidence already recorded will form part of the record. I have merely pointed out some of the grounds on which the remand is being made, but as the case would be tried afresh the hands of the Subordinate Judge will not in the least be tied to merely the points referred to in this judgment. He will be free to decide the case according to law and on the evidence which is before him on all the points which may arise for consideration. He will also consider the question of framing an issue on the question of limitation.

9. Costs will abide the result.

10. Narayan, J.:— I agree.

V.B.B

11. Case remanded.