MUNGILAL AGARWALLA Vs. HANUMANBAKSH AGARWALLA

JUDGEMENT

(1.) This appeal has arisen out of a suit foe a declaration of right and title to and khas possession of 10 lessas of land described in the schedule attached to the plaint. The suit was dismissed by the learned Munsiff of Sibsagar. The appeal also failed. Plaintiff has come to this Court on second appeal.

(2.) Plaintiff and his three brOrs. were the owners of the entire land covered by P.P. No. 132 of Sibsagar town. It measured 1B, 2K, 11L. The land was partitioned through Court in 1934. After this partition plaintiff purchased the share of his nephew Jutnalal and he thus became the owner of dags Nos. 1870 and 1937 of P.P. No. 322 (Ex. 2). Defendant 1 became the owner of dag No. 1633 of P.P. No. 962 by purchase. This fact' is not disputed. Dag No. 1370 belonging to the plaintiff is contiguous to dag No. 1633 belonging to defendant 1. Some time before the institution, of the suit, out of which this appeal has arisen, plaintiff applied to the Sub-Deputy Collector for the measurement of his land. The Sub-Deputy Collector after measurement of the land found that there was an encroachment of 10' lessas of plaintiff's land by defendant 1. Plaintiff instituted a suit for a declaration of his title' and for khas possession of his land measuring 10 lessas alleged to have been encroached by defendant 1.

(3.) Defendant 1 denied that there was any encroachment His defence was that he occupied the land which he purchased from Tugunram Agarwalla who in his turn had purchased it from Gajananda, a brother of the plaintiff. The learned Munsiff, who heard the case, issued a commission to the Sub-Deputy Collector for it local enquiry by measurement of the contiguous-fields in accordance with the directions given. On the first occasion the Commissioner found that the defendant had encroached to the extent of 5 lessas of land belonging to plaintiff from dag No. 1370. As it was found that the measurement was done in a way which could not be regarded as satisfactory, he was asked to re-measure the land. On the second occasion, he found that the encroachment was to the extent of 4 lessas. Plaintiff put in objections against this report and the Commissioner was summoned at his instance. The Court found that the objections, against the report were not valid. The plaintiff however, applied for the issue of a fresh commission for determining the dispute. This petition was rejected. The learned Subordinate Judge then considered the available materials. He rejected the second report of the Commissioner on the ground that when making his measurement on the spot, he did not refer to the original map prepared at the time of the partition in 1934. He had only the cadastral map before him which according to him had been corrected by the Mandal after the partition case. The learned Judge was of the view that the corrections made by the Mandal required the choking and approval from the Sub-Deputy Collector. The Commissioner was not in a position to say that the cadastral map had been duly checked. In these circumstances he held that the Commissioner's report was valueless and could not prove plaintiff's contention. As a result, he dismissed plaintiff's suit.