Babu Kasturi Singh v. Rajkumar Babu Bissun Pragas Narain Singh

The litigation which has given rise to this appeal arises out of a boundary dispute between the Plaintiffs and the Defendants who are owners of two contiguous estates having a lake between them. The lake has now silted up and a portion of its bed is the subject matter of the dispute. The Plaintiffs alleged that the boundary line of the zemindaries passes through the centre of the lake, while the Defendants' case was that the entire lake was included in his zemindari. The Plaintiffs further alleged that they were dispossessed by the Defendants under colour of an order made under sec. 145 of the Criminal Procedure Code on the 20th August, 1894, and also a subsequent order of the settlement officer made on the 15th April, 1895, determining the boundary of the contiguous zemindaries under Act V of 1875 B.C The Plaintiffs accordingly prayed for declaration of their proprietary right to the land in dispute and for recovery of possession thereof. The Defendant pleaded that the suit was not maintainable, denied the Plaintiffs' title and alleged that the claim was barred by limitation, inasmuch as the land in suit had emerged from the bed of the lake and had been in his possession for more than 12 years. The Courts below have found the Plaintiffs' title established to a portion, about one-third of the land in suit and have made a decree in favour of the Plaintiffs holding that their claim was not barred by limitation. The Defendant has appealed to this Court and on his behalf, the decision of the Courts below has been challenged on three grounds, namely, first, that the suit ought to have been dismissed on the ground that it was barred under the provisions of sec. 62 of the Bengal Survey Act, 1875; secondly, that the decision of the learned District Judge upon the question of title is erroneous inasmuch as he has accepted as final the decision of the survey authorities, and thirdly that the decision upon the question of limitation is defective inasmuch as the learned District Judge instead of throwing the onus upon the Plaintiffs to show when the land emerged and when they were dispossessed, has cast the burden upon the Defendant to show that he had acquired a good title by adverse possession for the statutory period.

The first ground taken before us is sought to be supported by a reference to the language of sec. 62 of the Bengal Survey Act, which provides—we quote only so much of the section as is necessary for our present purpose—“that no suit shall be brought to set aside an order of a Deputy Collector deciding a boundary dispute, unless an appeal shall have been first preferred under sec. 59 or sec. 60.” It has been contended by the learned vakil for the Appellant that although the present case is one for declaration of proprietary right and for recovery of possession on the basis of title, it is none the less in substance a suit brought to set aside the decision of the Deputy Collector relating to a boundary dispute; that the result of any decree in favour of the Plaintiffs must necessarily be to nullify the order of the Deputy Collector and that consequently the suit is barred under the provisions of sec. 62 of Act V of 1875, inasmuch as admittedly no appeal was preferred either under sec. 59 or sec. 60 of that Act. In support of this position reliance has been placed upon the principle deducible from the decision of the Judicial Committee in the case of Malkarjun bin v. Narhari(1) where it was pointed out that an order made by a Court of competent jurisdiction, even though, erroneous, cannot be rightly regarded as a nullity but must hold good till it is challenged and set aside in the manner provided by law. It must be conceded that this argument would be entitled to considerable weight, if the matter were resintegra, but we are of opinion that it ought not to prevail against what has been accepted for many years as the correct view of the true scope of sec. 62 of the Survey Act. It was pointed out by Wilson, J., in the case of Kalachara Tea Co. v. Sukul Singh(2) that the only thing as to which a suit is forbidden by sec. 62, is the setting aside of an order deciding a boundary dispute and that consequently though there may have been the most regular proceeding and the most formal decision in the question of boundary in a boundary dispute, that would be conclusive as to possession, but would not bar a suit based on title. In a later case Maharani Beni Prosad Koeri v. Bhikari Singh(3), decided by Banerjee and Pratt, JJ., on the 1st September, 1902, Mr. Justice Banerjee after referring to the provisions of sec. 41 of the Survey Act which provides that the order of the Collector under that section “shall, until it be reversed or modified by competent authority, have the force of an order of a Civil Court, declaring the parties to be in possession of the land in accordance with the boundary as determined by the Collector,” goes on to observe as follows:—“This clearly shows that the order of the Survey Collector in a boundary dispute case is to have the force, not of a decree of a Civil Court determining the rights of parties, but an order of a Civil Court declaring the parties to be in possession of the land in accordance with the boundaries determined. Where the suit is brought for establishment of the Plaintiffs' title and for possession upon the basis of such title, it does not require any reversal of the survey order, but gives it its full effect and seeks relief upon a higher basis than possession, upon which such an order is based.” We see no reason to dissent from this view of the law, and must overrule the first contention advanced on behalf of the Appellant.

As to the second ground, upon which the judgment of the Court below is assailed, we are of opinion that it cannot be successfully maintained. It is true that the decision of the learned District Judge upon this point is somewhat concisely expressed, but it must be remembered that he was affirming the decision of the learned Subordinate Judge upon this question who had determined the boundary line between the adjoining mouzahs upon a review of the whole evidence and after an elaborate examination of the thak map which was proved to have been prepared in 1845 and 1847 in the presence and with the full knowledge of the present Defendant. We must hold accordingly that no reason has been shown why the decision of the Court below upon the question of title should be disturbed.

As regards the third ground urged before us, we are of opinion that there is no substantial reason for complaint. It may be conceded that there are passages in the judgment of the learned District Judge which may at first sight seem to be open to criticisim as based on principles contrary to those laid down by this Court in the case of Md. Ali Khan v. Khaja Abdul Gunny(4), upon which considerable stress has been laid by the learned vakil for the Appellant. But as we understand the judgment of the learned District Judge, although he has not believed the story of the Plaintiffs that the land in dispute emerged from the bed of the lake five years before the date of the suit, and although he equally disbelieves the story of the Defendant that the land emerged 30 or 40 years before suit, he has affirmed the finding of the Court of first instance that the disputed tract has been reclaimed and has become capable of actual occupation within 12 years of this suit. Nor do we think it can be successfully urged that this finding is vitiated by the process of reasoning adopted by the learned District Judge; he has found that the land was admittedly under water in 1845 when the thak survey proceedings took place in course of which the land in dispute was found to be in the possession of the Plaintiffs' predecessor; he has found also that the evidence of the Defendant that it had emerged 40 years before suit was decidedly unsatisfactory while the Plaintiffs had shown that the emergence had taken place recently; under these circumstances where as the learned District Judge says the evidence is conflicting he was right in presuming that possession followed title and this view is supported by the cases of Runjeet Ram v. Goburdhun Ram(5), Dharm Singh v. Hur Pershad Singh(6), Raj Kumar v. Gobind Ch.(7) although as pointed out in the case of Thakur Singh v. Bhogeraj(8), the presumption might not have been applicable, if the learned District Judge had found that the evidence of the Plaintiffs upon the question of possession was of the same unsatisfactory character as that of the Defendant.

All the contentions advanced on behalf of the Appellant consequently fail and this appeal must be dismissed with costs.

S.C.S

Appeal dismissed.