SUBBA RAO, - (1.) THE following Judgment of the court was delivered by
(2.) THIS appeal by certificate granted is directed against the judgment of the High court of Judicature at Patna dated 23/04/1953, confirming that of the Subordinate Judge, Dhanbad, dated 30/11/1946. The plaintiffs and the defendant are adjoining colliery owners at Kujama. The plaintiffs' land lies immediately to the south of the defendants' land. On August 2, 1,894, Raja of Jharia granted mukarrari lease of the coal and coal mining rights in 300 bighas of land in village Kujama to Satya Karan Banerjee and Girish Chandra Samanta. On 15/06/1900, his son, Raja Durga Prasad Singh, granted coal and coal mining rights in respect of 400 bighas out of 592 bighas to one Jugal Kishore Lal. Samanta purchased the leasehold interest of Banerji, and thereafter on November 23, 1900, it appears that Samanta bad surrendered his rights under the previous lease in favour of the Raja and taken a fresh lease of the same 300 bighas on a reduced rent. On 10/06/1901, Jugal Kishore Lal granted a lease of 96 bighas out of his 400 bighas to one D. M. Mathews. On the very same day D. M. Mathews, in his turn, granted a lease to one Walji Kheta in respect of the said 96 bighas. Walji Kheta executed a kabuliat in favour of M. Mathews on 11/10/1901. Walji Kheta represented the defendants. By diverse transfers, the interest of Samanata vested in Bagdigi Kujama Collieries Limited. The plaintiffs case was that as a result of a letter written by the Inspector of Mines on 18/08/1941, the plaintiffs made an inquiry and came to know that the defendants had encroached upon their coal mines on the northern side and removed coal from the encroached portion and had rendered the remaining coal of the encroached portion unworkable. On those allegations, they asked for the following reliefs: (a)That the intermediate boundary line between the plaintiffs' coal-land and the defendants' coal-land be ascertained and fixed. (b)That the area encroached upon by the defendants be ascertained and the defendants be directed to vacate the same,. (c)That a permanent injunction be issued against the defendants restraining them from encroaching upon the plaintiffs' coal-land and cutting and removing coal therefrom. (d)That an enquiry be made and the quantity of coal cut and removed by the defendants from the plaintiffs' coal-land as also the quantity of the coal rendered unworkable be ascertained and a decree for the value thereof by way of damages be granted to the plaintiffs against the defendants. The defendants denied that they had encroached upon the plaintiff-,' coal-land and stated that the suit was barred by limitation. They further pleaded that the plaintiffs would not be entitled to any damages. The learned Subordinate Judge held that the defendant had encroached upon the plaintiff' coal-land, that the suit was not barred by limitations and that they would be entitled to the reliefs prayed for. On appeal, the High court of Patna accepted all the findings of the learned Subordinate Judge and dismissed the appeal. Hence the present appeal. The first question that arises for consideration is whether the defendants had encroached Upon the plaintiffs' coalland. The answer to this question depends upon the correct, delineation of the boundary line between the plaintiffs' leasehold and the defendants' leasehold. It is common case that the southern boundary of the appellants' leasehold is conterminous with the northern boundary of the respondents' lease-hold. Learned counsel for the appellant contends that the said boundary should be fixed solely with reference to the boundaries given in the lease of 1894, whereas learned counsel for the respondents contends that no plan has been annexed to the said lease and, therefore, the boundary could more satisfactorily and definitely be fixed with reference to the plans annexed to the subsequent lease deeds executed in favour of the successors-in-interest of the appellant and the respondents. To appreciate the rival contentions it is necessary to consider the various lease deeds in some detail. On August 2, 1894, Raja Jaimangal Singh executed the lease deed (Ex. 1) in respect of 300 bighas in favour of the respondents' predecessor-in-interest. In that lease deed the northern boundary is described to be the remaining portion of mauza Kujama and the western boundary is described as Chatkari Jorh. The foot note to the lease reads, 'measuring 1101 feet in length running north and south by the side of the said Chatkari Jorh and area being 300 bighas by such measurement'. No plan was annexed to this lease deed. On 15/06/1900, Jugal Kishore Lal, the predecessor-in-interest of the appellant, had obtained a lease (Ex. C) of 400 bighas from Raja Durga Prasad Singh, the son of the previous Raja. The southern boundary of this leasehold is given as the northern boundary limit of the leasehold land of Girish Chandra Samanta and others and the western boundary is shown as the eastern boundary of Chatkari Jorh as per the map annexed. This lease deed clearly shows that the southern boundary of this plot is conterminous with the northern boundary of the leasehold land in favour of Samanta. It may also be noticed at this stage that the map annexed to this lease deed has not been filed by the appellants. It appears that Samanta purchased the interest of Banerji in the leasehold of 1894 and thereafter at the request of Samanta, on 23/11/1900, Durga Prasad Singh gave a fresh lease of the same holding to Samanta and incorporated a map in that lease, i.e., Ex. 3(b). There, the northern boundary of the leasehold is described as the leasehold of Rajkumar Jugal Kishore Lal Singh Bahadur. The plan, Ex. 3(b), annexed to this lease deed shows the boundary line between the two leaseholds. The said plan is drawn to scale and the boundary line is drawn between point A marked in the plan and point B marked therein. As the plan is a part of the lease deed, it is clear from the plan that the northern boundary of the leasehold of Samanta is the said line. On 10/06/1901, Jugal Kishore Lal, that is, the predecessor- in-interest of the appellant demised a plot of 96 bighas carved out from his leasehold to Mathews under a deed Ex. C(1). Mathews in turn demised under Ex. D the said land of 96 bighas to Walji Khetan representing the appellant. In both these documents the southern boundary is shown as the northern boundary of the leasehold land of Samanta. One interesting feature is that a map has been referred to in each of the documents and the said map shows that the line drawn from point A to point B is the boundary between the two leaseholds. It may be mentioned that the said boundary line is exactly the same as that found in Ex. 3(b). These documents to which the defendants' predecessors were parties contain a clear admission that the boundary line between the two leaseholds i.e., between appellant's and that of the respondents' is the line between A and B shown in plan Ex. 3(b). We have no doubt that if the plan annexed to Ex. C was produced by the appellant, it would have also established that the dividing line between the two leaseholds is that found in Ex. 3(b). The appellant, in our view, has suppressed the said plan and, therefore, in the circumstances, we are justified to draw an inference that, if produced, it would be against appellant's contention. From the aforesaid documentary evidence we hold, agreeing with the courts below, that the southern boundary of the appellant's holding, which is conterminous with the northern boundary of the respondents' holding, is the line between points A and B shown in Ex.3(b).
(3.) THE next question addressed by the courts below is how to ascertain the point A. THE argument of learned counsel for the appellant is that the map translated into words indicates that the correct boundary should be a line drawn from the true meeting point of the four villages Pandebera, Jharia Khas, Lodhna and Kujama at a bearing of 82.15', whereas the contention of the respondents is that the line actually drawn on the lease map correctly lays down the northern boundary of the respondents' leasehold. It is settled law that a map referred to in a lease should be treated as incorporated in the lease and as forming part of the document: see Darapali Sadagar v. Najir Ahamed (1). As in this case the map is drawn to scale and incorporated in the lease deed, it is not permissible to ignore the starting point of the boundary line and adopt instead any scientific point based on survey. The Commissioner appointed by the court tested the position of the six trijunction pillars shown in the map of lease dated November 23, 1900, and found that two of the trijunction pillars were in their correct positions. On the basis of these two trijunction pillars, the Commissioner relaid, by the process of superimposition, the northern boundary line of the leasehold property, The point A in the map so laid does not tally with the point where the aforesaid four villages actually meet. He pointed out that the correct point where the said four villages met would be 1680 feet only from the trijunction pillar of Lodhna, Kujama and Madhuban, whereas the point A was at a distance of 1750 feet from the said trijunction pillar. But learned counsel for the appellant contends that according to Ex. 3 the western boundary should be according to the revenue plan and, therefore, point A should be fixed at a distance of 1680 feet from the trijunction pillar, as that is the distance according to the revenue plan. But a perusal of Ex. I shows that there is no reference in regard to the western boundary to revenue records. That apart, even if 1680 feet is taken as the distance between the injunction pillar and point A in 'the map, it demonstrates that the measurement given in Ex. 3 was incorrect, for, there the distance was shown only as 1101 feet. But a more serious objection to the argument is that it is not permissible for a court to reconstruct the plan with reference to revenue records when the plan is self contained and drawn to scale. To summarize: the question is whether the disputed extent is part of the respondents' holding or that of the appellant's holding. The map, Ex. 3(b), annexed to the lease deed executed in favour of the respondents' predecessor-in interest clearly demarcates the boundary line between the holdings of the appellant and the respondents, and according to that plan the disputed extent falls within the boundary of the respondents' holding. The lease of the appellant's predecessor, i.e., Ex. C, also refers to a map, but the appellant withheld it. In the sub-leases created by the appellant, maps were annexed and the boundary therein is in accord with that in Ex. 3(b). Those documents contain clear admissions supporting the case of the respondents. No reliance can be placed upon the recitals in Ex. 1, as it is demonstrated that the extent given in respect of the western boundary is incorrect. On the aforesaid material both the courts have held that the disputed extent of land is part of the holding of the respondents. ;