Chunilal Dutta v. Purna Laxmi Pal — 1964 DIGILAW 54 (CAL)

Judgment 1. THE questions I have to decide in this appeal are : (a)Whether a Map depicting the disputed property but prepared under the provisions of the Calcutta Survey Act, 1887- Bengal Act I of 1887- (shortly stated hereafter as "the Act") would or would not be evidence in a suit for declaration of title, as the present one. (b) Whether the application of the Act is extended to the Municipality of Howrah and thereafter to the State of Bihar particularly to Motihari and to the District of Gaya. (c) Whether a presumption correctness of the Survey Map arises so that the onus of proving the same to be wrong is shifted on him, who challenges its correctness ; and (d) Whether the instant suit is barred by limitation because of sec. 22 of the Act. The plaintiff is the owner of Holding No. 5 Uttam Ghosh Lane, salkia, within the Municipality of Howrah. The defendants are the owners of the neighboring Holding No. 6. Between the two premises, is a wall. The plaintiff says, first, that the wall belongs to her ; and secondly, if that be not So, she has prescriptive rights of light and air to the openings of her building ;in Holding No. 5. Accordingly, the declaration of title apart, she asks for an injunction restraining the defendants from interfering with her ancient light and air. The plaintiff mainly relies on a Town Survey Map prepared under the Act between 1917 and 1919 which purports to show that the disputed wall is within the plaintiff's holding. The plaintiff doubtless purchased the holding on April 18, 1952 and within a year the present dispute may be said to have started. The defendant's title which bears upon the matter, rests on a series of documents beginning from the year 1877 and particularly on two of them namely, Ext. D. of the year 1902 and Ext. A (4) of the year 1914. A Commissioner also submitted a Report in the suit. 2. UPON the Report and other evidence, the learned Munsif dismissed the suit. It was held inter alia that the wall did not belong to the plaintiff and that she had no right to light and air. The plaintiff's appeal was allowed by the learned Subordinate Judge. A Commissioner also submitted a Report in the suit. 2. UPON the Report and other evidence, the learned Munsif dismissed the suit. It was held inter alia that the wall did not belong to the plaintiff and that she had no right to light and air. The plaintiff's appeal was allowed by the learned Subordinate Judge. Not- only did he rely mainly on the Town Survey Map and hold that the said Map was evidence in the case but he went further and said "strong presumption of correctness arises under sec. 22 of the Calcutta Survey Act the onus heavily lies upon the defendant to rebut the presumption of correctness of this Town Survey Map". It was also held in effect that sec. 22 was bar to such a suit, though "the learned Advocate for the respondent Sri Amrita Dhan Mukherjee referred to the case reported in A. I. R. (1949) Pat. 132. " the learned Advocate for the appellants attacked the admissibility of the Map for the purpose of proving what the boundary wall and he contended that the Map could not be evidence in the suit. In my judgment, the map, having been made, as is stated, under the Act, would be admissible in evidence for the present purpose. There is, to my mind, no validity in the contention that the trouble taken to have such survey made, ends in the lame conclusion that the survey is no evidence on the question of boundary. The Act shows that it was the business of the persons conducting those surveys to demarcate these boundaries. Of coure, it was not the object of the survey to set all the owners of the properties by the ears. But, to my mind, it would be reducing the Act to nothing, if it was to be held that a map brought into existence by this survey, it would not be evidence on a question like the one in the present suit. I think, therefore, that the learned Judge was well entitled to rely upon the evidence of the Map. But, to my mind, it would be reducing the Act to nothing, if it was to be held that a map brought into existence by this survey, it would not be evidence on a question like the one in the present suit. I think, therefore, that the learned Judge was well entitled to rely upon the evidence of the Map. The above view gets support from the decision of the Judicial Committee in (1) Jagadindra v. Secretary of State, 7 C. W. N 193 (P. C.) = 30 I. A. 44 though the effect of Thak and Survey Maps made after 1793 and Act IX of 1847 fell to be considered there and not the Calcutta Survey Act. The first question is therefore answered against the appellants and I hold that such maps would be evidence. Sri Apurba Dhan Mukherjee, the learned Advocate appearing for the defendants-appellants contended secondly, that the preamble of the Act shows that it was meant for survey and demarcation of lands in the town of Calcutta only. The disputed land and the wall, being within the Municipality of Howrah is as such outside the ambit of survey made under the Act and therefore the reliance on the Map was erroneous. The Act, as originally passed, no doubt applied only to Calcutta (see sec. 1) but sec. 27 of the Act gave power to the Local Government to extend the whole or any of the provisions of the Act to the whole or any part of the: suburbs of Calcutta. The Bengal Municipal Act, 1804 (Bengal Act 3 of 1884) was further amended in 1894 by inserting therein sec. 223a which reads: "the Commissioner at a meeting may order that a survey shall be made of the lands situated in the Municipality, and therefore all the provisions of the Calcutta Survey Act. 1887, shall, so far as may be practicable, apply and be extended to such Municipality." It appears that the Commissioners of the Howrah Municipality directed that a survey should be made of the lands in Circles Nos. 1 to 24, Wards Nos. 1 to 10 of the said Municipality and by virtue of the said sec. 223a, the provisions of the Calcutta Survey Act consequently applied to the said Municipality. On May 9, 1914, as subsequently modified, the Governor in Council also appointed the Superintendent of Survey and an appellate authority under sec. 1 to 24, Wards Nos. 1 to 10 of the said Municipality and by virtue of the said sec. 223a, the provisions of the Calcutta Survey Act consequently applied to the said Municipality. On May 9, 1914, as subsequently modified, the Governor in Council also appointed the Superintendent of Survey and an appellate authority under sec. 11 of the Act. It further appears that on October 2, 1918 the Superintendent deposited the Map etc. in the office of the Municipal Commissioners of Howrah on completion of the said survey which was duly notified in the "Calcutta Gazette". Objections were judged, heard and decided. Lastly by two notifications viz, No. 3130m dated 12. 8. 1919 and No. 2359m dated 13. 8. 1920 the approval of the Governor in Council to the said survey under sec 21 of the Act was signified and thereafter published in the Calcutta Gazette of the years 1919 and 1920 respectively. 3. TO my mind, therefore, the Calcutta Survey Act is applicable to the disputed property situate within the Howrah Municipality. As I have no further and fuller materials placed before me, I express no opinion as to whether the Act is applicable to all the Provincial Municipalities in Bengal then existing and to all the Municipalities in West Bengal thereafter. Mo view is also expressed as to whether the Act was applicable in Motihari and to the Municipality of Gaya, though four decisions of the Patna High Court arose on the Act from the said places viz., (2) Murli Prasad v. Sheo Kishore, A.I.R. (1950) Pat. 432 from Motihari and (3) Gaya Municipality v. Mt. Rwp Kalia, A.I.R. (1937) Pat. 516 (4) Brindaban v. Gaya Municipality, A.I.R. (1937) Pat. 640 and (5) Hardeo Misstir v. Gaya Municipality, A.I.R. (1949) Pat. 132 which were placed before me. I cannot accept therefore that the Act was applicable to those places. There liance on the Bench decision of this Court in the case of (6) Debendra v. Surendra, 31 C. W. N. 419 in support of the contention that the Act is applicable only to the land situate within the Ordinary Original Civil Jurisdiction of this Court is also unwarranted. The second contention of Mr. Mukherjee therefore also fails. But the learned Advocate for the appellants has subjected the learned Judge's judgment to a very careful criticism, so far as the next two points are concerned. The second contention of Mr. Mukherjee therefore also fails. But the learned Advocate for the appellants has subjected the learned Judge's judgment to a very careful criticism, so far as the next two points are concerned. In my opinion, no presumption of correctness is attached to the Map prepared under the Calcutta Survey Act, as in the cases of presumption of correctness arising in the Record of Rights prepared under the Bengal or Bihar Tenancy Act and or the West bengal Estates Acquisition Act, 1953. Section 3, of the Calcutta Survey Act does not contemplate preparation of records. There is distinct difference between Settlement and Survey in the said Tenancy Acts which is absent in the Survey Act. The said Act is meant principally to settle the boundary disputes. In case of such disputes, special procedures have been laid down. There is no evidence in this case that such records have in fact been prepared. The Act mostly deals with the situation and extent of the plots of lands within a municipality for the purpose of preparation of a map giving a location of the various plots. Sec. 23 of the Act no doubt refers to the powers of the Local Government to make rules but the learned Advocates on either side could neither cite any rules nor point out the fact as to whether any rules at all had been framed. Even then the Map in my judgment would be good piece of evidence as I have already said, which requires to be considered along with other evidence in the case. The learned Judge in appeal below was nevertheless clearly in error in holding that a strong presumption of correctness arose under sec. 22 of the Act and further erred in law in deciding the appeal from the said stand point and placing the onus of proof on the defendants wrongfully. 4. ON the point of limitation also the court of appeal below misconceived sec. 22 of the Act which reads : "22. No suit shall lie to set aside any demarcation of 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." As it is dependent on the last preceding section, hence sec. 21 is quoted as under : "21. No suit shall lie to set aside any demarcation of 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." As it is dependent on the last preceding section, hence sec. 21 is quoted as under : "21. After all objections lodged under the last preceding section have been decided, the State Government shall, if it approves the survey, signify such approval by notification in the Official Gazette". The reasons for my holding that the suit is not barred by limitation are as follows :- (a) The nature of the suit contemplated in sec. 22 is different from the suit for declaration of title etc. out of which this appeal arises. (b) The chain of provisions beginning from sec. 7 to sec. 21 of the Act suggests the raising of a boundary dispute at the time of survey, the order passed on such dispute under sec. 10 and the completion of survey under sec. 20 of the Act, as conditions of bar of limitation. The evidence of such facts is wanting in this case. (c) Lodging of objections after the completion of the survey as provided in sec. 20 of the Act and the decisions of the same under sec. 21 are the conditions precedent for bringing in the bar of limitation of the suit. The notifications in the present case, as noticed earlier, are of the years 1919 and 1920. According to the Court of Appeal below therefore the suit should have been filed within one year of the dates of the notifications. There is no evidence in this case as to whether any objection is lodged and or whether any decision is given under sec. 21 of the act. It is inconceivable, in my judgment, that sec. 22 prevents a person from proving, beyond one year of the date of notification that the survey map, representing the boundary between the two neighboring premises, is erroneous. I am in agreement with the view on the said point of the said Bench decision of the Patna High Court in the case of (5)Hardeo Missir (supra) though with respect I cannot persuade myself to agree with the view as to the presumption of correctness of such Maps. I am in agreement with the view on the said point of the said Bench decision of the Patna High Court in the case of (5)Hardeo Missir (supra) though with respect I cannot persuade myself to agree with the view as to the presumption of correctness of such Maps. The decision of the learned Single Judge of the Patna High Court in the case of (3) Rup Kalia (supra) is to my mind, rightly overruled by the said Bench decision of Hardeo. The other Single Bench decision of the same High Court viz., Patna, in the case of (4) Brindaban Prasad (supra) is clearly distinguishable because there the disputed plot was recorded as belonging to the Gaya Municipality which is not so in the instant case. I do not find any discussion in (6) Debendrd's case (supra) as to the bar of limitation under sec. 22 of the Act as supposed by the learned Subordinate Judge. The terminal date for the calculation of the period of limitation in the said decision was on sec. 26 of the Limitation Act and not on sec. 22 of the Calcutta Survey Act. In my pinion therefore the instant suit is not barred by limitation. In these circumstances it is for the plaintiff to show, as held by Rankin, C. J. in the said decision of (6) Debendra that the wall is hers, the case of prescriptive rights of light and air being given up earlier. The learned Munsif has very carefully examined the evidence with respect to this matter. There is, I think, a good deal of force in the fact to which the learned Munsif has pointed that nowhere in her document of title (except her recent purchase in 1952) do we find the boundary of the plaintiffs premises described in any way by a reference to this wall. There is nowhere, that I can see in any of the other evidence in the case especially the petition (Ext. 4) that assists the plaintiff The utmost that can be said of the plaintiff's evidence is that they are not conclusive or strong-enough, so that the suit can be decreed in her favour. The learned Subordinate Judge in appeal overlooked paragraph 14 of the Commissioner's Report, where in summing up it is said by him that the wall appertains to the defendant's holding. The learned Subordinate Judge in appeal overlooked paragraph 14 of the Commissioner's Report, where in summing up it is said by him that the wall appertains to the defendant's holding. It was erroneously thought that the said Report is in plaintiff's favour. For argument's sake even if there is a presumption of correctness arising on the Survey Map (Ext. 9), it was in my view amply rebutted in this case by a series of documents and other evidence adduced on behalf of the defendants, detailed by the learned Munsif, but many of which having not been noticed by the learned Subordinate Judge. 5. IN these circumstances this appeal is not of a very trumpery character as is sought to be suggested. I entirely decline to accept the argument of: the learned Advocate for the plaintiff-respondent that it would not be proper for this Court in a matter of this sort do go back upon the very sensible exercise of discretion of the learned Subordinate Judge who was in charge of the appeal below. I am rather of opinion that this appeal must be allowed. The judgment and decree of the Court of appeal below are therefore set aside and those of the Trial Court are restored. There will be no order as to costs.