- (1.) This is a defendants second appeal from a decree directing the defendant appellant and the defendant -respondent to remove the construction which lay in plot No. 187 of village Atardiha in district Deoria. The site plan prepared by an Advocate Commissioner, paper No. 49 -C was made part of the trial courts decree. According to that site plan only the triangular portion denoted by the letters A F D lay within plot No. 187, while the rest of the construction shown by letters A B C F lay in plot No. 185. It may be here stated that of the entire construction A B C D the Portion A E F D was claimed by the plaintiffs to be an encroachment of plot No. 187 and out of that only the triangular half portion shown by letters A F D was found by the Advocate Commissioner to be in plot No. 187. The lower appellate court confirmed that decree; hence this second appeal.
(2.) THE plaintiffs case was that having purchased plot No. 185/1 the two defendants were laying foundations of their house and in the course of doing so, they had encroached upon the portion A B C D of the land of plot No. 187 of which they were the bhumidhars, having purchased the same for Rs. 600/ - from Moti Lal and Moti Chand, who were sirdars but had acquired bhumidhari rights before selling it to the plaintiffs. The only question involved in the case was about the delineation of the boundary between the plaintiffs plot No. 187 and the defendants plot No. 185 -1. Since an interim injunction was prayed for by the plaintiffs and an ad interim injunction was issued by the trial court, a commission was issued to an Advocate Commissioner for service of the interim injunction on the defendants and also for survey and preparation of a site plan to scale. The plaintiffs filed four documents along with the plaint. The first two of them were extracts from Khatauni for 1370F, and a copy of the settlement map of the plots 185 and 187 along with certain other surrounding plots for purposes of survey. That commission wars issued to Shri Naval Kishore Misra, Advocate, who surveyed the spot on 6th Sept., 1965 and submitted his report and site plan to the court. On the basis of the measurements made by Shri Nawal Kishore Misra, Advocate Commissioner, at the site with the help of the certified copy of the settlement map of 1915 -16 and the site plan prepared by him, he reported that, on plotting the north -western corner of the house in dispute lay somewhat in the disputed land, that is, plot No. 187. Neither of the two parties were satisfied with the survey made by Shri Nawal Kishore Misra, Advocate Commissioner and the report submitted by him. The defendant appellant objected that the distance between the fixed points F1 and F2 as shown in the settlement map was 13 Jaribs, 19 Karis. That did not tally with the distance between those points when measured at site. There was a difference of 15 Karis between the two; therefore, a correct map could not be prepared on the basis of those fixed points. The further objection was that the distance between F2 and C2 was 11 Jaribs, but was shown as 10 Jaribs and 90 Karis, and that between F1 and C1 was 6 Jaribs but was shown was 5 Jaribs, 85 Karis, by the Commissioner. It was said that on correct plotting and measurements the whole of the house would be found to lie in plot No. 185 and no part of it would be found to lie on Plot No. 187. The plaintiffs objection to the Commissioners map and report was not so precise. They only said that it was against the facts at site and was liable to be rejected. It was claimed that the difference between the fixed points taken by the Commissioner and that shown by the maps was 25 Karis and that, therefore, the Commissioner had reached a wrong conclusion and his report and map was liable to be rejected. By an order dated 8th Dec., 1965 the trial court ordered the withdrawal of the temporary injunction after hearing the parties with the observation that the constructions are partly raised: that the suit is for demolition and possession, and that the defendants may complete the constructions at their risk. By an order dated 25th Jan., 1966 the court ordered that the Commissioners report and the map (paper Nos. 13 -C, 14 -C and 15 -C) be set aside, with the observation that the parties had challenged the measurement done by the Commissioner and that they agree that it was wrong. A fresh survey commission was issued to Shri Haribansh Prasad Misra and another certified copy of the settlement map for the year 1915 -16 of the plots in question, obtained from the Consolidation Officer, was filed by the plaintiffs with the allegation that the certified copy which had been filed earlier had been prepared in the Tahsil from the cloth map, while the map on sheet had been sent to the consolidation authorities; that the cloth map did not tally with the site because of shrinkage, and the certified copy obtained from the consolidation authorities was from the sheet map, which was correct according to the site and may, therefore, be used for the purposes of survey. The trial court allowed that application and Shri Haribansh Prasad Misra submitted a report and a map according to which almost the whole area of the construction A B C D was found to be an encroachment on plot No. 187, as claimed by the plaintiffs. The defendant appellant filed a detailed objection to this map and report. His objections were that the measurements were made by the Commissioner without any information to him that the certified copy of the settlement map obtained from the Consolidation Office could not have been preferred to the certified copy of the settlement map issued by the Collectorate, and the distance between the two fixed points was obviously different in the two maps; that Shri Nawal Kishore Misra to whom commission had been issued earlier had found the distance between the two fixed points to be 14 Jaribs and 5 Karis while the present Commissioner had found the distance between the fixed points to be 14 Jaribs and 30 Karis, which was again false, as the distance between the two fixed points was in fact 14 Jaribs and 18 Karis. The correctness of the plotting was also challenged. It was said that the distance of the north -eastern corner of the construction from the diagonal C -2 was taken to be 7 Jaribs, 32 Karis but was in fact 7 Jaribs and 42 Karis, and the distance between the diagonal C -1 and the north -eastern corner was 7 Jaribs and 70 Karis and not 6 Jaribs and 56 Karis. On 15th July, 1966 the trial court observed that there was basic difference in the distance between the fixed points shown in the two certified copies of the settlement map on the record, and in order to check the same it had summoned the original map. The map from the consolidation office was received on 19th August, 1966 and the trial court found that there was no difference in the copy issued and the original brought obviously from the consolidation office. An additional objection to the correctness of the survey, supported by an affidavit, was thereupon filed by the defendant appellant on 19th September, 1961. This objection and affidavit was based on measurements made by Shri Shyam Badan Lal Vakil. The following were the differences pointed out: Measurement according to the Commissioner?s field -book. Measurement found on test Distance between F1 to 14 -30 F2. 14 -18 C3 to the south -eastern corner of the house. 1 -33 1 -28 C1 to the north -eastern corner of the house. 6 -56 6 -51 C2 to the north -eastern corner of the house. 7 -32 7 -28 Area of plot No. 187 = .26 According to the settlement map .29 A counter -affidavit dated 22nd Sept., 1966 was field on behalf of the plaintiffs endorsing the correctness of the measurements made by the Commissioner. The trial court took up this report for consideration on 26th Oct., 1966 and passed the following order : "Commissioner is directed to re -visit the spot and verify the measurements done by him in the light of the affidavit and counter -affidavit filed by the parties and report within 20 days. Defendants abjection will be decided after the additional report of the Commissioner." The Commissioner re -visited the spot and made fresh measurements which did not tally with the measurements made earlier but the Commissioner stated in his report dated 16th Nov., 1966 that at the time of his first visit there was no crop or any obstacle in between the fixed points the chandas and the construction in suit, but at the time of his second visit there was Arhar crop standing in between the fixed points the Chandas and the construction and therefore, there was a difference of 5 links between C2 and the north -eastern corner of the construction in suit. The (Contd. on Col. 2) Commissioner stated that his previous field book was correct and according to his map and measurements the area of plot No. 187 was 26496 sq. links. The trial court took up the matter for consideration on 24th Jan., 1967 and passed the following order : "Commissioner has admitted that there was some mistake in the two measurements. For avoiding any mistake I set aside the map and report. The fresh measurement will be done after the cutting of the crop in March. Report by the Commissioner after fresh measurement by 8 -4 -67. He will get Rs. 25/ - as fee from the plaintiff." The Commissioner re -visited the spot on 24th March, 1967 and the result of the measurement made by him this time was again different from the two measurements made earlier. The area over which the constructions were found to be an encroachment on plot No. 187 was reduced almost to half of what had been found by his earlier report. The defendant -appellant again filed detailed objections and an affidavit in support of them. The correctness of the measurement made by the Commissioner was again challenged, in addition to the distance between the fixed points. The plaintiffs by a counter -affidavit dated 20th May, 1967 supported the measurements made by the Commissioner. The court took up the Commissioners report and map for consideration and confirmed it by the following order on 26th May, 1967: "There are two affidavits filed by the defendants and in both different measurements about the fixed points were given. Now the defendants learned counsel Sri S.B. Lal states that 54C affidavit is correct and the distance given between Fl and F2 two fixed points are correct. When 39C affidavit was filed, Commissioner went to the spot and checked the distance between two fixed points. He gave report and denied the distance given by the defendants in the affidavit. After the second report of the commissioner; defendants changed the earlier stand and has now set up a new distance which in the light of the report of the Commissioner is untenable. I reject the second objection of the defendant and hold that the map prepared is correct and it is confirmed." The aforesaid orders and the several reports and maps on the record, only highlight the difficulty in correctly plotting out the boundary between plots Nos. 187 and 185 so as to find out whether any part of the defendant -appellants house encroached upon plot No. 187. The very method adopted by he Commissioner in a case like this was incorrect inasmuch as in the matter like one in hand a correct conclusion could have been arrived at only if the length of the four sides of each of the two plots 185 and 187 was available in the revenue records, and all the four corners of each of the two plots were spotted out by survey. Trying to spot out only the north -eastern corner of plot No. I85 or the south -eastern corner of plot No. 187 was fraught with the grave risk that even a slight tilt in the angle of measurements with the kind of instruments available with our surveyors leads to differences which cannot be easily reconciled. After all, these distances are fixed and these maps are prepared not on the basis of measurements made by expert surveyors with infallible instruments of measurements, but by low paid revenue officials with outmoded instruments of measurements. These measurements and these boundaries, as shown in the revenue records, can only be called approximate. The very fact that there was a difference in the fixed points F1 and F2 in the two certified copies of the settlement map of 1915 -16, one issued by the Tahsil, and the other by the Consolidation Office, highlights the risk of placing any absolute reliance on the correctness of these maps.
(3.) THERE is the further fact that the Advocate Commissioner Sri Haribansh Prasad Misra arrived at three different results on the basis of the measurements made by him firstly on 18th March, 1966, secondly on 10th Nov. 1966, and thirdly on 24th March, 1967 which also shows that the measurements made by him were not absolutely reliable. According to his last report, which was confirmed by the trial court, the area encroached upon is triangular and diagonally half of that claimed by the plaintiffs. In fact the earth eastern corner of the defendants house could be said to be situate on the boundary between plots Nos. 187 and 185. The Commissioner has not specified the distance between FD DA and AF on the map prepared by him which forms part of the decree of the trial court. The decree of the trial court also does not specify the exact dimensions of the walls which are to be demolished according to the decree.;