Deoki Nandan, J. - (1.) THIS is a plaintiffs' second appeal in a representative suit filed by the residents of village Jakh Dhaulat against the residents of village Bhumiathal praying for a declaration that certain land shown on the map annexed to the plaint was outside the boundary of village Bhumiathal as settled in the year 1866 and was within the traditional boundary of the plaintiff's village Jakh Dhaulat. The trial court framed three issues in the suit, namely, (1) Whether the land in suit lies within the traditional boundary of the village of the plaintiffs ? (2) Whether the suit is barred by the principles of estoppel ? and (3) To what relief, if any, are the plaintiffs entitled ? He found on issue No. 1 that the land in suit shown in the Amin's map by letters JA, JHA, YAN, TA, THA, DA, KHA, RA, JA, lies within the traditional boundaries of the village of the plaintiffs. On issue No. 2 he found that the suit was not barred by estoppel and in the result decreed the suit and declared that the land in suit shown by the letters JA, JHA, YAN, TA, THA, DA, KHA, RA, JA, in the Amin's map (Paper No. 36 A-2) lay within the traditional boundary of village Jakh Dhaulat. On appeal the Court of the Civil and Sessions Judge, Kumaun dismissed the suit on the finding that the disputed land did not lie within the traditional boundary of the plaintiffs' village as modified in the Beckett Settlement when the defendants' village was carved out of the plaintiffs' village and that it now forms part of the defendants' village.
(2.) WHETHER the land in dispute lay within a traditional boundary of one village or the other is plainly a question of fact which can better be resolved by survey rather than settled on second appeal by this Court. Be that as it may, it appears from the record that the determination of the boundaries of the two villages was the subject matter of a dispute before the Assistant Record Officer by way of what has been termed as Regular Tanaza No. 49 of 1963-64. That was decided by the Assistant Record Officer by an order dated 15th April, 1964 which is Ex. 2 on the record. The matter appears to have been taken in appeal before the Record Officer Pi tohragarh. It was Appeal No. 63 of 1964 and was dismissed on 16th February, 1964. The suit giving rise to the present second appeal in this Court was filed thereafter. It appears from the judgment of the lower appellate court that the orders of the Assistant Record Officer and the Record Officer were passed in the course of settlement operations. Learned counsel appearing for the appellants could not point out to me the precise jurisdiction in which these orders were passed by the Record Officer and Assistant Record Officer. It appears that they were passed in the course of some kind of settlement or record operations. Now, it cannot be disputed that the boundaries of a village can be resettled in the course of settlement operations and any prior disputes as to boundaries or other similar matters would be within the jurisdiction of the officers entrusted with the settlement work to decide. In this background the question which naturally arises is whether the Civil Court had any jurisdiction to review or to revise or to sit in appeal on the orders of the Asstt. Record Officer confirmed in appeal by the Record Officer. The learned counsel drew my attention to Section 13 of the Kumaun Nayabad and Waste Lands Act, 1948. That lays down that a suit may be filed in a Civil Court for a declaration or injunction or for both-(a) in respect of the traditional boundary of a village, or (b) in respect of easementary rights in unmeasured land. That may be so but the traditional boundaries are settled and recorded in the course of settlement operations. I do not think that it can be the law that the boundaries of a village in Kumaun which were once settled a hundred years ago will remain immutable and unchanged for all times to come. Indeed the definition of traditional boundaries under Section 3 of the said Act says that the traditional boundaries mean boundaries of a village defined at Mr. Trail's Settlement of 1923 (Sambat 1880) subject to any subsequent rectification by order of a settlement or Record Officer or by a judicial decision. The settlement of 1866 relied upon by the court below was certainly much prior to the settlements of 1923 and 1939 referred to in the definition as Mr. Trail's Settlement. In my opinion, therefore, the provisions of Sec.13 are limited to a suit for declaration or injunction on the basis of the traditional boundaries as defined in the latest settlement or revision of the records in the village. Inasmuch as it appears that the order of the Assistant Record Officer, which was confirmed on appeal by the Record Officer, was passed in the course of some settlement or record operations, and at any rate it could be deemed to be an order of rectification by a Record Officer, it was not open to challenge or scrutiny before the Civil Court in the manner it was scrutinized by the learned Munsif. In the result I hold that the plaintiffs' suit was rightly dismissed though for reasons different from those which appealed to the lower appellate court.
(3.) THE appeal fails and is dismissed. In the circumstances there will be no orders as to costs. Appeal dismissed.;