K.P.Singh - - (1.) THIS is a defendants' Second Appeal arising out of a suit for permannent injunction restraining the defendants from interfering with the possession of the plaintiff over the disputed land. The plaintiff has claimed right in the disputed land as being Pichhwara of the plaintiff's house, whereas the defendants-appellants had claimed right in the disputed land as their Khalihan. The trial court dismissed the plaintiff's suit but the lower appellate court has given judgment for the plaintiff. Aggrieved by the judgment of the first appellate court the defendants have approached this Court in the above noted second appeal.
(2.) LEARNED counsel for the appellants has raised two questions of law for consideration. Firstly that the lower appellate court has acted illegally in relying upon the chak map prepared in a case which is still pending. It has been emphasised before me that the Commissioner, who had prepared the chak map, had not been examined in the suit giving rise to the present appeal, therefore, the appellate courts should not place reliance upon the map in its judgment. The second contention raised on behalf of the defendants-appellants is to the effect that there is no definite finding regarding the alleged threat advanced by the defendants ; therefore, the impugned judgment should be set aside and the case should be sent back to the lower appellate court for re-examining the claims of the parties. During the course of arguments the learned counsel for the appellants has referred to a ruling reported in 1945 Cal. page 492 Dwijesh Chandra Roy v. Naresh Chandra Gupta as well as the ruling reported in 63 Indian Cases page 727 Hafiz Muhammad Ibrahim v. Pandey Chandan Singh.
(3.) I have examined the contentions raised on behalf of the appellants and I have gone through the aforesaid rulings. I think that the appellate court has recorded categorical finding of fact against the defendants-appellants. Their case of claiming the land as Khalihan has been found as talse. It has also been found by the lower appellate court that the disputed land is Pichwara of the plaintiff's house and the same has been in possession of the plaintiff. In AIR 1945 Calcutta 492 Dwijesh Chandra Roy v. Naresh Chandra Gupta a Division Bench of that Court, has observed at page 494 as below :- ".........A map by itself is nothing but statements made by the maker by means of lines and pictorial representation instead of by word of mouth as to the state or configuration of a particular site and the objects standing thereon To admit in evidence a map without calling the maker thereof is the same as admitting in evidence statements made by a third party who is not called as a witness. In other words, it amounts to admitting hearsay ".;