CHUNILAL DUTTA Vs. PURNA LAXMI PAL

JUDGEMENT

(1.) THE questions I have to decide in this appeal are : (a)Whether a Map depicting the disputed property but prepared under the provisions of the Calcutta Survey Act, 1887- Bengal Act I of 1887- (shortly stated hereafter as "the Act") would or would not be evidence in a suit for declaration of title, as the present one. (b) Whether the application of the Act is extended to the Municipality of Howrah and thereafter to the State of Bihar particularly to Motihari and to the District of Gaya. (c) Whether a presumption correctness of the Survey Map arises so that the onus of proving the same to be wrong is shifted on him, who challenges its correctness ; and (d) Whether the instant suit is barred by limitation because of sec. 22 of the Act. The plaintiff is the owner of Holding No. 5 Uttam Ghosh Lane, salkia, within the Municipality of Howrah. The defendants are the owners of the neighboring Holding No. 6. Between the two premises, is a wall. The plaintiff says, first, that the wall belongs to her ; and secondly, if that be not So, she has prescriptive rights of light and air to the openings of her building ;in Holding No. 5. Accordingly, the declaration of title apart, she asks for an injunction restraining the defendants from interfering with her ancient light and air. The plaintiff mainly relies on a Town Survey Map prepared under the Act between 1917 and 1919 which purports to show that the disputed wall is within the plaintiff's holding. The plaintiff doubtless purchased the holding on April 18, 1952 and within a year the present dispute may be said to have started. The defendant's title which bears upon the matter, rests on a series of documents beginning from the year 1877 and particularly on two of them namely, Ext. D. of the year 1902 and Ext. A (4) of the year 1914. A Commissioner also submitted a Report in the suit.

(2.) UPON the Report and other evidence, the learned Munsif dismissed the suit. It was held inter alia that the wall did not belong to the plaintiff and that she had no right to light and air. The plaintiff's appeal was allowed by the learned Subordinate Judge. Not- only did he rely mainly on the Town Survey Map and hold that the said Map was evidence in the case but he went further and said "strong presumption of correctness arises under sec. 22 of the Calcutta Survey Act the onus heavily lies upon the defendant to rebut the presumption of correctness of this Town Survey Map". It was also held in effect that sec. 22 was bar to such a suit, though "the learned Advocate for the respondent Sri Amrita Dhan Mukherjee referred to the case reported in A. I. R. (1949) Pat. 132. " the learned Advocate for the appellants attacked the admissibility of the Map for the purpose of proving what the boundary wall and he contended that the Map could not be evidence in the suit. In my judgment, the map, having been made, as is stated, under the Act, would be admissible in evidence for the present purpose. There is, to my mind, no validity in the contention that the trouble taken to have such survey made, ends in the lame conclusion that the survey is no evidence on the question of boundary. The Act shows that it was the business of the persons conducting those surveys to demarcate these boundaries. Of coure, it was not the object of the survey to set all the owners of the properties by the ears. But, to my mind, it would be reducing the Act to nothing, if it was to be held that a map brought into existence by this survey, it would not be evidence on a question like the one in the present suit. I think, therefore, that the learned Judge was well entitled to rely upon the evidence of the Map. The above view gets support from the decision of the Judicial Committee in (1) Jagadindra v. Secretary of State, 7 C. W. N 193 (P. C.) = 30 I. A. 44 though the effect of Thak and Survey Maps made after 1793 and Act IX of 1847 fell to be considered there and not the Calcutta Survey Act. The first question is therefore answered against the appellants and I hold that such maps would be evidence.

(3.) SRI Apurba Dhan Mukherjee, the learned Advocate appearing for the defendants-appellants contended secondly, that the preamble of the Act shows that it was meant for survey and demarcation of lands in the town of Calcutta only. The disputed land and the wall, being within the Municipality of Howrah is as such outside the ambit of survey made under the Act and therefore the reliance on the Map was erroneous. The Act, as originally passed, no doubt applied only to Calcutta (see sec. 1) but sec. 27 of the Act gave power to the Local Government to extend the whole or any of the provisions of the Act to the whole or any part of the: suburbs of Calcutta. The Bengal Municipal Act, 1804 (Bengal Act 3 of 1884) was further amended in 1894 by inserting therein sec. 223a which reads: