Ratan Singh v. Afli Singh Malguzar — 1971 DIGILAW 136 (ALL)

ORDER K.N. Srivastava, J. - This is a Plaintiff's appeal. The Plaintiffs are residents of village Dungri. The Defendants-Respondents are residents of village Naugaon. Both the villages adjoin each other. These villages are situated in the district of Garhwal. In the hill area, there was a settlement done by Mr. Trial in the year 1822 A.D. which would correspond to Sambat 1880. In common parlance, in the hill area, this settlement is called 'Assi Saal'. There was a subsequent settlement in 1839 A.D. which will correspond to 1896 Sambat. In common parlance, this settlement is called 'Saal 96'. In the earlier settlement, the boundaries were given with reference to direction i.e. East, West, North and South. In the latter settlement, the boundaries of the villages were defined with reference to sequence. This means that a certain hillock a certain waterfall, a certain water-channel or some outstanding land-mark was shown to be the demarcating line between two villages. 2. There was another settlement in the hill area in 1938-39 where the boundaries of these two villages were adjusted in accordance with the boundaries mentioned in the settlement of Saal 96. Sometime difference arises as to what 'Planthidar' or hillock or mould to be taken as a boundary line between the two villages because there being a number of water-falls, moulds, hillocks and water-channels close to each other. One has, therefore, to ascertain the boundaries between the two villages as best as one could by taking into consideration the spot situation. In the settlement of the year 1938-39, the question arose as to whether the 'Palentri Dar' described in the settlement of Saal 96 was one which runs from 'Da' to 'Ta' or the one which was from 'Ja' to 'Sa'. The Assistant Record Officer, after interpreting other documents and on consideration spot situation, came to the conclusion that the boundary line passed from point 'Ja' and 'Sa'. This resulted in taking out more than 5(10 Nalis land of village Dungri and adding to village Naugaon. 3. Objections were filed by certain residents of village Dungri before the Assistant Record Officer but were rejected. They filed an appeal before the Record Officer but the same was also rejected. Nothing happened till the year 1950. This resulted in taking out more than 5(10 Nalis land of village Dungri and adding to village Naugaon. 3. Objections were filed by certain residents of village Dungri before the Assistant Record Officer but were rejected. They filed an appeal before the Record Officer but the same was also rejected. Nothing happened till the year 1950. In 1950, the present suit was filed by certain residents of village Dungri including the persons who had filed the objections before the Assistant Record Officer on the allegation that fraudulently wrong boundaries were mentioned in the settlement of 1938-39 which resulted in slicing away 500 Nalis or more area of village Dungri and adding the same to the area of village Naugaon. The Plaintiffs who are residents of village Dungri also contended that they had been grazing their cattle on the land. They, therefore, sought for two declarations, firstly, that this area be declared to be part of the land and secondly that it be declared that it was the grazing land of their village. They also prayed for injunction restraining the residents of village Naugaon from interfering with their grazing right. 4. An Amin was deputed who, on measurement, found that according to the case of the Plaintiffs, the exact are a which they claimed to be part of their village was 556.12 Nalis. 5. The suit was contested by the Defendants-Respondents alleging that the suit was barred by time and that the boundaries were correctly ascertained in the last settlement of the year 1938-39 in accordance with the boundaries given in the settlement of Saal 96. According to them, the interpretation given by the Plaintiffs to Saal 96 boundary was wrong and incorrect. They further contended that the Plaintiffs had no grazing right on the land in dispute. Other pleas were also taken with which we are not concerned in this appeal. 6. The trial court held that the boundary line between Dungri and Naugaon was from the line 'Da' and 'Ta' shown in the Amin's map and not fiom the line 'Ja'and 'Sa'of that map. He thus held that the disputed land was a part of village Dungri. 6. The trial court held that the boundary line between Dungri and Naugaon was from the line 'Da' and 'Ta' shown in the Amin's map and not fiom the line 'Ja'and 'Sa'of that map. He thus held that the disputed land was a part of village Dungri. He also held that the Plaintiffs were grazing their cattle on the disputed land but the trial court came to the conclusion that the suit was barred by time and the boundary given in the last settlement of the year 1938-39 was binding on the parties. On these findings, the Plaintiffs' suit was dismissed. 7. The Plaintiffs filed an. appeal. The lower appellate court concurred with the finding of the trial court that the boundary between the two villages was as shown by the line 'Da' and 'Ta' and not by the line 'Ja' and 'Sa'. Thus the disputed land was part of village Dungri and not part of village Naugaon. The lower appellate court also held that the Plaintiffs were grazing their cattle even after the refixation of the boundary in 1938-39 and the right was infringed for the first time in 1950 and therefore, the suit was well within time. It dismissed, the suit on the ground that under the Kumaun Nayabad and Waste Lands Act, the boundary fixed by an authority in 1938-39 A.D. could not be disturbed in the suit and was binding on the parties. On this finding, the appeal was dismissed. Being dissatisfied, the Plaintiffs have filed this second appeal. 8. I have already observed, while giving the Plaintiffs' case, that in the settlement of Saal 96, the boundaries of villages in the hill area were defined with reference to sequence. It means that from a certain hillock, a line was drawn in a certain direction upto certain water fall and from that water fall again a line was drawn in a certain direction to a certain ridge or water channel and then a turn was taken and thus in this manner, moulds, hillocks, ridges, water falls and natural thing of permanent character were made fixed points of boundaries. There being many such natural falls, water falls, ridges, hillocks, water channels close to each other, very often dispute arose between the residents of two villages as to which hillock or water fall or water channel was meant by the Record Officer and this gave to boundary disputes. There being many such natural falls, water falls, ridges, hillocks, water channels close to each other, very often dispute arose between the residents of two villages as to which hillock or water fall or water channel was meant by the Record Officer and this gave to boundary disputes. The instant case is one such cases. There are two 'Palentri Dhars' close to each other in the area in dispute. One lies between the line 'Ja' and 'Sa' and the other lies between the Line 'Da' and 'Ta'. The question was, therefore, of interpretation as to which 'Palentri Dhars' were actually meant by the settlement authorities while fixing the boundary between the two villages. Naturally that would be a question of interpretation. The settlement authorities in 1938-39, after giving best of their thought to the matter, came to the conclusion that the 'Palentri Dhar' described in Ext. 9 was one which connected the lines 'Ja' and 'Sa' shown in the map of the Commissioner, whereas the trial court and the lower appellate court Were of the opinion that the settlement authorities who made the settlement in Saal 96 meant that 'Palentri Dhar' which runs between the lines 'Da' and 'Ta'. It was due to these two different interpretations that 556.12 Nalis of land came in dispute between the two villages. However, it cannot be doubted that the settlement authorities in 1938-39 did not slice away any part of the area of village Dungri arbitrarily. What they did was on a reasoning and interpretation of certain marks of boundaries existing at the spot. The same was done by the civil courts. It is for this reason that the learned Counsel for the Respondents frankly conceded that there being a concurrent finding of fact by the trial court and the lower appellate court about the situation of the boundary, this cannot be challenged in the second appeal. 9. The next question which was vehemently argued by the learned Counsel for the Appellants was as to whether in view of the definition of "traditional boundary", the suit of the Plaintiffs ought to have been thrown out by the trial court and the lower appellate court. 9. The next question which was vehemently argued by the learned Counsel for the Appellants was as to whether in view of the definition of "traditional boundary", the suit of the Plaintiffs ought to have been thrown out by the trial court and the lower appellate court. In the Kumaun Nayabad and Waste Lands Act, which was passed on 4-7-1948 and which came into force on 1-1-1949, "traditional boundary" has been defined u/s 2(10) as below: Traditional boundary means the boundary of a village defined at Mr. Grail's statement of 1923 (Sambat 1880) or as established in 1939 (Sambat 1896) subject to any subsequent rectification by order of a Settlement or Record Officer or by a judicial decision. 10. What is meant by "traditional boundary" is that it is a boundary either given in the statement of Saal 80 or Saal 96 or rectified by a subsequent settlement or by a judicial decision. The question is as to whether such a "traditional boundary" can be challenged in a civil Court. The reply of this question can be found in the definition itself wherein the words "or by a judicial decision" have been used. If "traditional boundary" was to be taken as final, the definition would not have used the words "or by a judicial decision". The very use of these words means that by judicial decision, the boundary fixed in the settlements can be questioned and the judicial decision would be final. Not only this, a perusal of Sections 11 and 13 of the Act aforesaid also leaves no room for doubt that a suit can be filed in respect of "traditional boundary" as well. Section 13 reads as below: 13. A suit may be filed in a civil court for a declaration of injunction or for both- (a) in respect of the "traditional boundary" of a village or (b) in respect of easement rights in unmeasured land. 11. A reading of this section, therefore, leaves no room for doubt that a suit can be filed in respect of "traditional boundary" and the fact that a "traditional boundary" has been fixed would not in itself make the matter final. The lower appellate court was, therefore, absolutely wrong in holding that the boundary fixed in 1938-39 settlement being a "traditional boundary" could not be challenged in the civil court. The lower appellate court was, therefore, absolutely wrong in holding that the boundary fixed in 1938-39 settlement being a "traditional boundary" could not be challenged in the civil court. For the reasons given above I am, therefore, of the opinion that the above (view) taken by the trial court and the lower appellate court was wrong and a suit can be filed in respect of "traditional boundary" as well. 12. The learned Counsel for the Respondents next argued that the residents of village Dungari had agitated the question of boundary before the Assistant Records Officer and had filed an appeal against his decision before the Records Officer in a representative capacity and therefore, they would be debarred from filing the present suit. A perusal of the judgment by the Records Officer marked Ext. 14 would show that Rattan Singh filed the appeal for self and as representative of the Panoh Hissedars of village Dungri. But simply because Ratan Singh described himself as representative of panches, it cannot be said that he filed the objection and the appeal in a representative capacity. Order 1 Rule 8 CPC provides the procedure for filing suits or appeals in a representative capacity. There is' nothing on the record to show that any such procedure, as laid down Under Order 1 Rule 8 CPC was followed in this case. If the Respondents relied on this proposition, it was for them to have proved by clear and cogent evidence that Ratan Singh was fighting the case before the settlement authorities in a representative capacity. In the absence of any document showing that proceeding Under Order 1 Rule 8 CPC were taken, it cannot be said that the objection and the appeal filed by Ratan Singh were in a representative capacity on behalf of the entire village of Dungri and thus the result of the appeal would not be binding on the Plaintiffs. Besides the proceeding before the settlement authorities are of a summary nature. They cannot affect the right of a person which can only be adjudicated by the civil court and in this view of the matter the above argument has no force in it. 13. The learned lower appellate court had decided the question of limitation in favour of the Plaintiff-Appellants. They cannot affect the right of a person which can only be adjudicated by the civil court and in this view of the matter the above argument has no force in it. 13. The learned lower appellate court had decided the question of limitation in favour of the Plaintiff-Appellants. The learned Counsel for the Appellants contended that this finding being in their favour and as the lower appellate court wrongly dismissed the suit on the ground of "traditional boundary", therefore, the appeal should be allowed and the Plaintiffs' suit should be decreed. The learned Counsel for the Respondents contended that the question of limitation being a mixed question of fact and law, he had a right to address the court on this question because the lower appellate court wrongly applied the law for holding that the suit was not barred by time. The contention of the learned Counsel for the Respondents was that by the order of the settlement authorities, there was a clear and equivocal threat and denial of the right of the Plaintiffs so far as the question of boundary was concerned. According to him, not only this that the boundary was fixed in a manner that 556.12 Nalis of land was taken out from village Dungri and added to the area of village Naugaon but it was done with the knowledge of the residents of Dungri who filed objection and appeal to that effect unsuccessfully. According to the learned Counsel for the Respondents, these orders amounted to real infringement and unequivocal denial of the rights and the residents of Dungri, therefore, ought to have filed the suit within six years from 1938-39 settlement and as the suit was filed in 1950, therefore, it was clearly barred by six years rule of limitation. According to the learned Counsel for the Respondents, Article 120 of the Limitation Act applied to the facts of this case. 14. According to the learned Counsel for the Respondents, Article 120 of the Limitation Act applied to the facts of this case. 14. The contention of the learned Counsel for the Appellants was that by the mere entry in the settlement papers that the boundary of village Dungri was less than what it was in Saal 96 and the mere fact of reduction of the boundary by 556.12 Nalis, there was no infringement of the right of the Plaintiffs as the Plaintiffs have been in occupation of the land throughout and have been grazing their cattle on the land till they were refused that right for the first time in 1950. The crux of the case, therefore, is as to when a real, substantial and unequivocal denial and refusal of the rights of the Plaintiffs by the Defendants did take place. If it was only nominal denial in the year 1938 and was effectual and actual in 1950, then certainly the suit filed in 1950 would not be barred by time. But if it was effective unequivocally and clear refusal of the right and title of the Plaintiffs in the year. 1938, there cannot be doubt that the suit ought to have been filed in the year 1938 so far as it related to the declaration of the boundary because the Plaintiffs had knowledge of the boundary in dispute. It cannot be assumed for a moment that when the settlement took place in 1938-39, the residents of Dungri, particularly the Plaintiffs, remained ignorant of that proceeding. Every thing done according to law shall be presumed to have been done so. The settlement proceedings are done after due notice and publication. There will be no reason to presume that the residents of Dungri had no such knowledge about the publication and notice of the settlement proceedings specially when Ratan Singh, one of them, had filed an objection and appeal as well. There is evidence on the record that some other residents of Dungri had also filed objections before the Assistant Record Officer. In these circumstances, it will be presumed that the Plaintiffs had knowledge of these proceedings. They had also knowledge that the disputed area had been sliced away from village Dungri and had been added to village Naugaon. Was it not a substantial injury to the residents of village Dungri? My reply would be in the affirmative. In these circumstances, it will be presumed that the Plaintiffs had knowledge of these proceedings. They had also knowledge that the disputed area had been sliced away from village Dungri and had been added to village Naugaon. Was it not a substantial injury to the residents of village Dungri? My reply would be in the affirmative. The Plaintiffs had also been using this land as their 'Gochar'. They were equally interested in this land and if this land was taken out of the area of Dungri and given to, the residents of village Naugaon, certainly in the settlement operation, this would have put the Plaintiffs at guard and immediately after the entry and after being unsuccessful in the objection and the appeal, a further suit ought to have been filed. 15. The contention of the learned Counsel for the Appellant that all along the Plaintiffs have been using the land as 'Gochar' and the Defendants have not been objecting to the same, but they objected to the use of the land as 'gochar' for the first time in 1950, does not appeal to reason. I fail to understand why the Defendants objected for the first time in 1950 when they knew that the land had come in the settlement operation within the area of their village in as back as 1938. The learned Counsel for the Respondents, therefore, argued that the cause of action was only an imaginary one just to bring the suit within limitation. In view of the facts and circumstances of the case, I think that this argument has much force in it. 16. However, the parties counsel have cited a number of decisions and at this stage, I would like to deal with the cases referred by the parties in this connection during the course of the argument. 17. The learned Counsel for the Appellants relied on a decision of the Lahore High Court Fateh Ali Shah v. Mohammad Bukhsh AIR 1928 Lah. 516. In this case, the facts were that the name of Mst. Rani was removed from the revenue record on 4th January, 1907 and the name of Mst. Umrao Bibi was entered. There was then a dispossession of Smt. Rani, Smt. Rani then filed a suit. 516. In this case, the facts were that the name of Mst. Rani was removed from the revenue record on 4th January, 1907 and the name of Mst. Umrao Bibi was entered. There was then a dispossession of Smt. Rani, Smt. Rani then filed a suit. In this case, the Plaintiffs were in enjoyment of the property and therefore, it was held that they were not obliged to file the suit till their title was denied. The principle laid down in this case does not apply to our case. In our case, by the order of the Assistant Record Officer, 556.12 Nalis area of village Dungri was sliced away and given to village Naugaon. The evidence that the Plaintiffs were in possession of it is also not of a satisfactory nature because from the evidence, all that has come out was that 'gochar' was used by both the parties. The fact that some time or the other the Plaintiffs have also been grazing their cattle would not go to show that they were in possession specially when by the order of the court actually the land was given to the villagers of Naugaon and inspite of an objection by the villagers of Dungri, the order fixing boundary between the two villages to the dissatisfaction of the residents of village Dungri was confirmed by the settlement authorities. 18. The other decision referred to by the learned Counsel for the Appellants is Faujdar Singh and Others Vs. Baldeo Singh and Others, AIR 1927 All 597 . In this case also, the facts were quite different. The adverse entry has not resulted in dispossession, whereas in the instant case, the adverse entry has resulted in a clear and unequivocal denial of the right, title and interest of the Plaintiffs and therefore, the principle laid down in this case does not apply to the facts of the present case. 19. The next case relied upon by the learned Counsel for the Appellants is Parjapati and Others Vs. Jot Singh and Others . The following observation was made in this case: The claim of the Defendants in the partition suit which gives rise to the cause of action now for the Plaintiffs is a claim that the property of the Plaintiffs should be partitioned, i.e. the Defendants claim to dispossess the Plaintiffs. Jot Singh and Others . The following observation was made in this case: The claim of the Defendants in the partition suit which gives rise to the cause of action now for the Plaintiffs is a claim that the property of the Plaintiffs should be partitioned, i.e. the Defendants claim to dispossess the Plaintiffs. That is an altogether different matter from the particular entry made in the revenue papers. 20. The other case relied upon on behalf of the Appellants is Shiam Lal v. Mohammad Ali Asghar Hussain 1935 AWR 607. In this case, it was observed that cause of action accrued when there was a definite denial by the Defendant in 1895 and subsequent refusal of the Defendant to get entry corrected. 21. In Kanti Prasad v. Bishambhar Sahai 1961 AWR 587, a Bench of this Court considered a Supreme Court case Mst. Rukhmabai Vs. Lala Laxminarayan and Others, AIR 1960 SC 335 , a Full Bench case of this Court Francis Legge v. Ram Baran Singh ILR XX All. 35 and other cases and came to the conclusion that the right u/s 20 of the Limitation Act accrues, when it is clearly and unequivocally threatened and the Defendant infringes the right asserted by the Plaintiffs. In the instant case, a real cloud was cast on the title and interest of the Plaintiffs when considerable area of their village was transferred to village Naugaon and that too with their knowledge, but inspite of that order, no suit was filed right upto 1950. Even if it be assumed for a minute that the Defendants stopped the Plaintiffs from using this land in 1950, that will be a continuance and re-occurring of the same denial which was made in 1938. In 1938, before the settlement authorities, there was a dispute between the residents of Dungri and Naugaon as to this area. They were arrayed against each other in dispute. It was summarily decided against the Plaintiffs. What else could be a real, substantial and unequivocal denial of title of the Plaintiffs except this. If the Plaintiffs did not bring the suit then, the continuance of the same cause of action will not put a fresh period of limitation for filing the suit. The lower appellate court too has, therefore, wrongly held that the suit was not barred by time. If the Plaintiffs did not bring the suit then, the continuance of the same cause of action will not put a fresh period of limitation for filing the suit. The lower appellate court too has, therefore, wrongly held that the suit was not barred by time. In my opinion, the suit was clearly barred by time as it was filed beyond six years from the date on which their right was denied. 22. In this view of the matter, the appeal fails. It is hereby dismissed with costs.