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1981 DIGILAW 1047 (ALL)

Rameshwar v. Murta Kunwar

1981-11-23

K.M.DAYAL

body1981
Judgment K.M. Dayal, J. 1. THIS is a defendant's appeal. The plaintiff, Mst. Murta Kunwar filed a suit in respect of certain constructions made by the defendant over plot nos. 386, 387 and 327 belonging to her. These plots were renumbered in the year 1961 as plot numbers 507, 508 and 413 respectively. It was alleged that plot no. 507 having an area of 288 links was a grove. Plot No. 508 was a low lying area and was cultivated. Plot No. 507 and 413 area 10 links was the Khudkasht of the plaintiff. Consolidation operation intervened and plot no. 386 and 387 were renumbered as plot no. 179 having an area of 348 links. Plot no. 423 was given a new number as 178 having 10 links as before. The allegation was that the defendant had encroached upon a portion shown in the plan map as A B C D, E F G H and I J K L. The plaintiff claimed removal of the constructions and encroachment of the defendant from the aforesaid plots. 2. THE defence of the appellant was that plot no. 178 was an old low lying land and the plaintiff had nothing to do with it. On the north of that plot there was plot no. 386 which was Banjar and Parti and the defendant was having his Khalihan over it and was using it for other purposes. THEre was a small Khandhar measuring about 3 biswas which was purchased by the defendant on 25-4-1964 from Dular Ahir. Plot No. 413 was claimed as defendant's own plot. Several documents were filed for connecting the plots from earlier settlement to the latter settlement and the maps prepared in each settlement but those papers appear to have been weeded out and not available from the record. The learned counsel for the plaintiff respondent has filed four papers before this court which were also on the record of the trial court. One of these documents is an uncertified copy, i.e. copy of Khatauni of Zild Bandobast of 1349 Fasli, that document may be filed in the court below, if certified copy of the same is available. 3. THE trial court partly decreed the suit of the plaintiff and awarded nominal damages. An appeal was filed by the plaintiff in respect of the portion of her claim, that was rejected by the trial court. 3. THE trial court partly decreed the suit of the plaintiff and awarded nominal damages. An appeal was filed by the plaintiff in respect of the portion of her claim, that was rejected by the trial court. That appeal has been allowed by the court below and the suit of the plaintiff was decreed as claimed in the plaint. THE defendant has come up in appeal. 4. AFTER going through the record of the case as well as in the judgments, I find that the lower appellate court has discarded the survey map prepared by the Amin for reasons given in the judgment. From the order-sheet of 11-5-1966, I find that both the parties had agreed to the aforesaid map as corrected by the Amin and no objections were filed against the same. The lower appellate court has discarded that map on the ground that the area of plot nos. 178 and 179 of the consolidation map has been the same as in the earlier map in respect of plot nos. 507, 508 and 413. It held that as the area was the same, the location and exact place of the plots should also have been exactly the same. As the plots are re-arranged, the fresh boundaries are made, the roads and drains are carved out, it was obviously not possible to have the plots, even having the same area, exactly on the same spot. For that the comparative table has to be examined closely and only then the decision can be arrived at. The other mistake in the judgments of the lower appellate court is apparent. In the map there is a pucca well shown. According to the court below the well is just by the side of south eastern boundaries of plot no. 179. In the map of the Survey Commissioner the boundaries are at a distance of about 80 Karis. On this basis the court below has concluded that the map prepared by the Commissioner was wrong. 5. IT may be pointed out that whatever things exist in the field are shown in the map by symbols as wells, graves as well as other structures. The sides of the fields are surveyed and measured. The structures within those fields are not measured or plotted on their exact location. They are shown inside the boundaries to denote their existence. IT may be pointed out that whatever things exist in the field are shown in the map by symbols as wells, graves as well as other structures. The sides of the fields are surveyed and measured. The structures within those fields are not measured or plotted on their exact location. They are shown inside the boundaries to denote their existence. Whatever marks are to be taken as permanent marks are mentioned in the Khasra and a list of such marks is prepared under Para III of the Land Records Manual in Form P-8. Under para 112 such list is attached to the Khasra. In case the well in question could be held to be a permanent mark as located in the survey, by consolidation authorities or authorities in the earlier settlements, that must be mentioned in the list of survey marks. Under the circumstances I find that the court below has completely confused the matter and it appears that it had no experience of any survey especially of village surveys. 6. ONE thing more is important. Whatever maps and Khasras are prepared by the consolidation authorities are final and binding. They cannot be lightly challenged or interfered with. If the map is to be corrected or challenged, that can be done by making an application or in proceedings under section 28 of the Land Revenue Act. In absence of any such proceedings, the court below had no jurisdiction to deviate from the map prepared by the consolidation authorities. In the result, the appeal is allowed. The judgment and decree passed by the lower appellate court is set aside and the case is remanded to it for deciding the case afresh in accordance with the observations made above and law applicable to the case. The parties may be directed to reconstitute the record in respect of the documents that have been weeded out. In case the court below feels that the earlier map could not be relied upon due to some reason, a fresh report may be prepared on the basis of the latest consolidation map. The parties are directed to bear their own costs. Appeal allowed.