Patna High Court
Musammat Bibi Rafiq Un-Nissa And Ors. vs Babu Keshwar Narain Singh And Ors. And ... on 15 July, 1920
Equivalent citations: 59IND. CAS.840, AIR 1920 PATNA 791
JUDGMENT Adami, J.
1. The plaintiffs in the suit out of which this appeal arises sought for recovery of possession of certain lands between their Mauza Pipra and Mauza Tiloch which belongs to the defendants.
2. It appears that though title was found to be with the plaintiff in respect of the disputed land as shown by the Revenue Survey Maps, yet in 1902 a dispute having arisen between the owners of the two Mauzas a survey was made and it was found by the Survey Officers that the disputed land lies within Mauza Tiloch, and therefore, the possession thereof was with the defendants. This decision was made under the provisions of the Bengal Survey Act on the 15th March 1902 The plaintiff instituted this suit on the 1st October 1915.
3. Under Section 41 of the Bengal Survey Act the decision of the Survey Officer had the force of a decree of a Civil Court. The learned District Judge seems to have been mistaken as to the law in the case. It is quite clear that the decision having been under Section 41 of the Bengal Survey Act possession was found to be with the defendants, and if the plaintiff wished to upset that decision it was incumbent upon him to institute his suit within 12 years. This he has not done.
4. The learned District Judge in decreeing the appeal acted on the assumption that it was incumbent on the defendants to prove that the Survey Officers laid down boundary pillars, and as they failed to give satisfactory proof of such laying down of pillars their defence must fail. The placing of pillars on the boundary, which has been fixed after enquiry, is a part of the procedure which is performed by the officers of the Survey Department after a boundary dispute has been decided and it is nowhere provided that an order settling a boundary dispute is void if, after the decision is come to, boundary pillars are not set up. In any case, the decision having been come to under Section 41, we must presume that the boundaries were duly laid down. The learned District Judge found that the oral evidence on both sides as to the boundary marks was unreliable, and because the report of the Survey Officer did not state that boundary marks had been laid down, held that the defendants had failed to show that the provisions of Section 41 had been complied with and so decreed the appeals. The burden of proof to show no boundary was demarcated lay on the plaintiffs.
5. I would allow this appeal and set aside the order of the lower Appellate Court and restore the decree of the Court of first instance with costs throughout.
Das J.
6. I agree.