- (1.) THIS is a defendant's second appeal directed against the judgment and decree of the District Judge, Kota passed by him on 30th May, 1964 in a suit for declaration of title and injunction.
(2.) THE facts leading to the present appeal briefly stated are these : In the town of Jhalawar plaintiff Hemraj purchased on the 15th March, 1955 a piece of land measuring 6-2/3 sq. yards from the Municipal Board of the town for a sum of Rs. 10/ -. Adjoining the house of the plaintiff is the house which once belonged to Ghasilal Attar. On 17th July, 1943 Ghasilal Attar obtained a 'patta' from the Municipal Committee, Brijnagar, as Jhalawar was then called. He had made an application to the Municipal Committee stating that he had lost his original 'patta' and thereupon the Committee after due publication of a notice for inviting objections and examining evidence adduced before it granted a 'patta' to Ghasilal Attar along with a plan of the house. For the realisation of certain debts due to the Government proceeding under the Public Demand Recovery Act were taken against Ghasilal Attar and the house in dispute came to be auctioned. Plaintiff Hemraj made certain objections but after due consideration the Tehsildar, who was conducting the proceedings, made an order on 30th January, 1957 (Cf. Ex. A-2) that Hemraj's objections were without substance and that the entire property indicated in the plan (Ex. A-l) attached to the 'patta' (Ex. A-4) belonged to Ghasilal Attar. THE matter went up to the Sub-Divisional Officer, Jhalawar and he by his order dated 8th January, 1960 again rejected the contentions of Hemraj and held that the entire property including the one claimed by Hemraj belonged to Ghasilal Attar and was sold to Bansilal, and a sale certificate was accordingly granted to him on 27th January, 1960. Hemraj thereupon instituted a suit on 8th October, 1960 against Bansilal and the State of Rajasthan asking for a declaration that the land measuring 6-2/3 sq. yards on which his latrine stood was his property duly sold to him by the Municipal Board and sought an injunction restraining Bansilal from interfering with the possession of the plaintiff. THE suit was contested by Bansilal inter alia on the ground that the 'patta' Ex. A-4 and the plan appended thereto (Ex. A-l) clearly showed that the land in dispute was a part of the property of Ghasilal Attar, which the defendant had purchased in the proceedings under the Public Demands Recovery Act, and belonged to him. THE trial Court dismissed Hemraj's suit against which he preferred an appeal before the District Judge, Rota. THE learned District Judge observed that Ex. A-4, the new 'patta', issued for the house did not mention that any land out side the house was also included in it. In the site plan (Ex. A-l) the boundaries of the house have been drawn in black ink and the boundaries so marked obviously did not include the open land in front of the house of Ghasilal Attar. With regard to the words written in the plan (Ex. A-l) ;g tehu Hkh blh esa 'kkfey gsa** the learned Judge opined that no evidence was led to prove that this land was really included in the house of Ghasilal Attar and that this note in the 'patta' was duly authorised. He has further observed that in the Public Demands Recovery Act proceedings existence of the plaintiff's latrine has not been indicated, and for all these reasons he came to the conclusion that the case of the plaintiff Hemraj must succeed and he accordingly reversed the decree of the trial Court. This time it is Bansilal defendant who feels aggrieved and has come up in second appeal. Mr. Rastogi, appearing for the appellant, contends that Ex. A-l, the plan, should be treated as a part of the 'patta' (Ex. A-4 ). In support of this contention he relied on K. S. Nanji & Co. vs. Jatashanker Dossa (1 ). A plan is an incorporated part of the deed of which it is an appendage. Any construction of the plan is a construction of the deed of title and, therefore, it becomes a question of law. In support of this submission he places reliance on Sir Chunilal V. Mehta & Sons Ltd. vs. Century Spinning and Manufacturing Co. Ltd. (2 ). He further submits that while the learned District Judge accepted that the words of the plan and those in 'patta' after they were duly proved by the plaintiff's own witness Madan Gopal (P. W. 2), the learned District Judge was therefore erroneously searching for evidence and he has misunderstood the material evidence and has committed an error of law. He relied on Nedunuri Kameswaramma vs. Sampati Subba Rao (3 ). On a plain construction of the 'patta' read with the plan the portion of which the small plot measuring 6-2/3 sq. yards is a part is the property of Ghasilal Attar purchased in auction by Bansilal and the suit of Hemraj Must. , therefore, fail. Mr. Lodha, learned counsel for the respondent urged that the learned District Judge has given a finding in regard to the ownership of the small plot of land measuring 6-2/3 sq. yards and this is a finding of fact and is not open to attack in a civil second appeal. He placed reliance on Manilal Ratanchand Shah vs. Nanubhai Jesingbhai and others (4 ). He further submitted that the function of a plan is merely to explain the terms of a deed which it accompanies and where a property's description is contained in a deed it cannot be modified, by reference to a map. Identification of property is a question of fact and is not open to attack in a civil second appeal. In support of this contention he placed reliance on Mukherjee vs. Suresh Chandra Mukerjee (5 ). Lastly he submitted that the learned District Judge after appreciation of the evidence came to a correct conclusion to which no exception could possibly be taken and the judgment and decree under appeal must be upheld because the northern boundaries indicated in the plan (Ex. A. 1) and the sale certificate, in favour of the defendants appellant (Ex. 6) clearly exclude the possibility of the land in dispute being that of Ghasilal Attar and, therefore, of Bansilal the appellant. The first point, which emerges for consideration, is whether the construction of the words, ;g tehu Hkh blh esa 'kkfey gsa** contained in the plan (Ex. A. 1) in the construction of the title-deed. As already indicated the patta (Ex. A. 4) is more in the nature of an order passed by the Municipal Committee, as the major portion of its language is devoted to that aspect of the matter. The 'patta' intends to reaffirm the title of Ghasilal Attar in respect of the house. It is silent with regard to the boundaries of the house or its area. For that purpose it makes a reference to the plan (Ex. A. 1 ). This plan shows walls in two colours, namely, black and blue. Madan Gopal (P. W. 2), an employee of the Municipality of the town, has stated that the walls indicated in the black ink are those of Ghasilal Attar and the walls in blue ink are those of his neighbours. In order, therefore, to determine the area of the property covered by the patta (Ex. A. 4) one has as of necessity to look into the plan. While the 'patta' reaffirms the title of Ghasilal but the description of the property of which the title is affirmed has to be obtained from the plan (Ex. A. l ). I am, therefore, of the view that the plan is an integral part of the title-deed of Ghasilal Attar, whose property Bansilal purchased in the course of an auction. In K. S. Nanji & Co. 's case (1) their Lordships of the Supreme Court have observed "it is well settled that a map referred to on a lease should be treated as incorporated in the lease and as forming part of the said document. " In this connection the authorities cited by the learned counsel for the respondent may also be noticed. In Manohar Mukherjee's case (5) certain parcels of property were devised by means of a will. Cuming, J. observed that where the words of a devise are plain and the only question is as to the identification of the property referred to, the question is not one of the construction of a document, and cannot be argued in second appeal. The other learned Judge, who was a party to this judgment, preferred to decide the appeal on a different footing. In this case the words of the devise in the will were plain, and in the peculiar circumstances the learned Judge treated the question as one of mere identification of the property. In the case before me, as I have already said above, the 'patta' does not render adequate assistance in locating the property and its identification as of necessity has to be ascertained by reference to the plan. Putting the argument differently in the case before me in the plan is detached from the 'pata' (Ex. A. 4) it will be impossible to ascertain the dimensions of the property. In this case the 'patta' is silent with regard to the size of the property and the plan is the only document from which its identity and area could be ascertained. Thus the Calcutta case (5) is distinguishable. In Darapali Sadagar vs. Najir Ahmed (6) the map referred to therein was not for the purpose of showing the site of 'gopath' but for the purpose of showing the boundary lines. It was, however, admitted before the learned Judges that the reference to the map in the leases has this effect,, that it should be treated as incorporated in the leases, and forming part of the documents. Their Lordships then considered the question of an error in the boundaries and said that the boundaries would be as modified by the Commissioner after relaying the map. The principle is, as has been laid down by their Lordships of the Supreme Court, that where a plan is appended to a document for the purposes of depicting the property it should be deemed to be a part of the document as incorporated therein. After all a plan in this context is the language of diagrams as distinguished from words and it assists words in conveying the exact intention in regard to a document of title. It is certainly a part thereof. Reference in this connection may with advantage be made to the connotation of the word 'map'. A 'map' means not only a delineation giving a general idea of the land taken, but also such full and accurate notes and data as are necessary to furnish complete means for identifying and ascertaining the precise position of every part, with courses and distances so that every part can be found. " (Hollister vs. State, 77 P. 339 m, 345, 9 Idaho, 651 quoting Mill. Em. Dom, 117 ). The next question is whether the construction of the words noted in the plan raises a question of law. Suffice it to say that it does because the construction of a document of title is a question of law. Reference may be made to Sir Chuni Lal V Mehta & Sons' case (2 ). The learned District Judge has refused to rely upon the words ;g tehu Hkh blh eas 'kkfey gsa**because the 'patta' is silent in regard to it. The 'patta' is unfortunately silent in regard to many things, which one would have expected a 'patta' to contain. The boundaries of the house are missing. The area of the house belonging to Ghasilal Attar is also wanting. Even the locality is not mentioned. As a matter of fact, in the case before me the plan conveys more meaning with regard to the identity of the house than the 'patta' does, and there is no reason to refuse to consider the weight and value of these words. As I have already noticed, the documents (Ex. A. l and Ex. A 4) have been duly proved by the evidence of the plaintiff's witness and it was not necessary to lead any oral evidence to prove that this note was authorised or not. No question was directed on the point of lack of authority otherwise some efforts could have been made to meet this challenge. As a matter of fact the entire file in regard to the grant of Ex. A. 4 was brought before the learned trial Court but the plaintiff neither challenged nor probed into the existence or absence of authority under which it was made because no such question was raised. The learned Judge is again in error when he says that no witness has appeared to prove the meaning of the words. The words, in my opinion are plain" ;g tehu** indicates the land shown in the plan where those words are written. The word "bhi" means "also" and is indicative of an emphasis and the word "isme" refers obviously to the 'patta' and "shamil" means included. In this view of the matter, these words can have no other meaning than this that the land shown in the map at the point where these words are written intends to unmistakably include that part of the land as a part of the 'patta'. Then remains the argument of the learned District Judge, which has been adopted by the learned counsel for the respondent that the northern boundary of the house has been shown to be as "rastagali" and it is erroneous. It should have shown the house of Master Ramnath. The entire northern portion of the house of Ghasilal Attar does not abut the 'makan' of Master Ramnath; only a part of it does and in describing this the draftsman has preferred to show both in the plan "rasta GALI" as well as "makan" Master Ramnath. The argument of the learned District Judge that the existence of the plaintiff's latrine has not been referred to either in the proceedings before the Tehsildar under the Public Demands Recovery Act (Ex. A. 2) or the proceedings before the Sub-Divisional Officer (Ex. 6) is very easily explained. Hemraj did claim a certain part as his own. The Tehsildar rejected his claim. Similar objection was repeated before the Sub-Divisional Officer although Hemraj was not present. The Sub Divisional Officer has observed that Bansilal had stated before him that he may be delivered the title deeds of the predecessor-in-title and he would himself deal with Hemraj. Both the Tehsildar and the Sub Divisional Officer refused to recognise the claim of Hemraj. Thus the claim was very much present in the mind of both these officers and nothing turns on the mere absence of the description of the property constructed by Hemraj as the claim involved an admitted controversy. Another point which appealed to the learned District Judge was that when the plaintiff applied for the purchase of small piece of land a notice was issued. That notice is on record (cf. Ex. 3) which says that the Municipal Committee wanted to sell some land to Hemraj. Which land, on which side of Hemraj's house was intended to be sold by the Committee the notice is significantly silent. In fact it was ho notice to any body as it left every body to speculate his own meaning as to location of the land. Lastly the learned Judge has attached importance to the fact that Ghasilal did not object when a latrine was constructed in front of his house. The plaintiff himself has stated that Ghasilal Attar had already died when he constructed the latrine in 1955. This argument of the learned District Judge, which appealed to him, ignores the realities of the situation as available on record.
(3.) NO other point has been pressed before me. The result is that this appeal must be allowed with costs and the judgment and decree of the first appellate court are set aside and that of the trial Court restored. Learned counsel prays for leave to appeal. Leave is refused. .;