Appeal No 52 of 1957
Appeal from the judgment and decree dated April 22 of 1953 of the Patna High Court in Appeal from Original Decree No 162 of 1946
KN Bhattacharya and P K Chatterjee for appellants
NC Chatterjee A V Viswanatha Sastri R section Chatterji and D N Mukherjee for respondents Nos 2 to 6 1961
March 22
The Judgment of the Court was delivered by SUBBA RAO J
This appeal by certificate granted is directed against the judgment of the High Court of Judicature at Patna dated April 23 1953 confirming that of the Subordinate Judge Dhanbad dated November 30 1946
The plaintiffs and the defendant are adjoining colliery owners at Kujama
The plaintiffs  land lies immediately to the south of the defendants  land
On August 2 1894 Raja of Jharia granted mukarrari lease of the coal and coal mining rights in 300 bighas of land in village Kujama to Satya Karan Banerjee and Girish Chandra Samanta
On June 151900 his son Raja Durga Prasad Singh granted coal and coal 494 mining rights in respect of 400 bighas out of 592 bighas to one Jugal Kishore Lal
Samanta purchased the leasehold interest of Banerji and thereafter on November 23 1900 it appears that Samanta bad surrendered his rights under the previous lease in favour of the Raja and taken a fresh lease of the same 300 bighas on a reduced rent
On June 10 1901 Jugal Kishore Lal granted a lease of 96 bighas out of his 400 bighas to one D M Mathews
On the very same day D M Mathews in his turn granted a lease to one Walji Kheta in respect of the said 96 bighas
Walji Kheta executed a kabuliat in favour of M Mathews on October 11 1901
Walji Kheta represented the defendants
By diverse transfers the interest of Samanata vested in Bagdigi Kujama Collieries Limited
The plaintiffs case was that as a result of a letter written by the Inspector of Mines on August 18 1941 the plaintiffs made an inquiry and came to know that the defendants had encroached upon their coal mines on the northern side and removed coal from the encroached portion and had rendered the remaining coal of the encroached portion unworkable
On those allegations they asked for the following reliefs aThat the intermediate boundary line between the plaintiffs  coal land and the defendants  coal land be ascertained and fixed
bThat the area encroached upon by the defendants be ascertained and the defendants be directed to vacate the same
cThat a permanent injunction be issued against the defendants restraining them from encroaching upon the plaintiffs  coal land and cutting and removing coal therefrom
dThat an enquiry be made and the quantity of coal cut and removed by the defendants from the plaintiffs  coal land as also the quantity of the coal rendered unworkable be ascertained and a decree for the value thereof by way of damages be granted to the plaintiffs against the defendants
The defendants denied that they had encroached upon the plaintiff   coal land and stated that the suit was barred by limitation
They further pleaded that the 495 plaintiffs would not be entitled to any damages
The learned Subordinate Judge held that the defendant had encroached upon the plaintiff  coal land that the suit was not barred by limitations and that they would be entitled to the reliefs prayed for
On appeal the High Court of Patna accepted all the findings of the learned Subordinate Judge and dismissed the appeal
Hence the present appeal
The first question that arises for consideration is whether the defendants had encroached Upon the plaintiffs  coal land
The answer to this question depends upon the correct delineation of the boundary line between the plaintiffs  leasehold and the defendants  leasehold
It is common case that the southern boundary of the appellants  leasehold is conterminous with the northern boundary of the respondents  lease hold
Learned counsel for the appellant contends that the said boundary should be fixed solely with reference to the boundaries given in the lease of 1894 whereas learned counsel for the respondents contends that no plan has been annexed to the said lease and therefore the boundary could more satisfactorily and definitely be fixed with reference to the plans annexed to the subsequent lease deeds executed in favour of the successors in interest of the appellant and the respondents
To appreciate the rival contentions it is necessary to consider the various lease deeds in some detail
On August 2 1894 Raja Jaimangal Singh executed the lease deed exhibit 1 in respect of 300 bighas in favour of the respondents  predecessor in interest
In that lease deed the northern boundary is described to be the remaining portion of mauza Kujama and the western boundary is described as Chatkari Jorh
The foot note to the lease reads measuring 1101 feet in length running north and south by the side of the said Chatkari Jorh and area being 300 bighas by such measurement
No plan was annexed to this lease deed
On June 15 1900 Jugal Kishore Lal the predecessor in interest of the appellant had obtained a lease exhibit C of 400 bighas 496 from Raja Durga Prasad Singh the son of the previous Raja
The southern boundary of this leasehold is given as the northern boundary limit of the leasehold land of Girish Chandra Samanta and others and the western boundary is shown as the eastern boundary of Chatkari Jorh as per the map annexed
This lease deed clearly shows that the southern boundary of this plot is conterminous with the northern boundary of the leasehold land in favour of Samanta
It may also be noticed at this stage that the map annexed to this lease deed has not been filed by the appellants
It appears that Samanta purchased the interest of Banerji in the leasehold of 1894 and thereafter at the request of Samanta on November 23 1900 Durga Prasad Singh gave a fresh lease of the same holding to Samanta and incorporated a map in that lease ie exhibit 3b
There the northern boundary of the leasehold is described as the leasehold of Rajkumar Jugal Kishore Lal Singh Bahadur
The plan exhibit 3b annexed to this lease deed shows the boundary line between the two leaseholds
The said plan is drawn to scale and the boundary line is drawn between point A marked in the plan and point B marked therein
As the plan is a part of the lease deed it is clear from the plan that the northern boundary of the leasehold of Samanta is the said line
On June 10 1901 Jugal Kishore Lal that is the predecessor in interest of the appellant demised a plot of 96 bighas carved out from his leasehold to Mathews under a deed exhibit C1
Mathews in turn demised under exhibit D the said land of 96 bighas to Walji Khetan representing the appellant
In both these documents the southern boundary is shown as the northern boundary of the leasehold land of Samanta
One interesting feature is that a map has been referred to in each of the documents and the said map shows that the line drawn from point A to point B is the boundary between the two leaseholds
It may be mentioned that the said boundary line is exactly the same as that found in exhibit 3b
These documents to which the defendants  predecessors were parties contain a clear admission that the boundary line between the two leaseholds ie between appellant s and that of the respondents  is the line between 497 A and B shown in plan exhibit 3b
We have no doubt that if the plan annexed to exhibit C was produced by the appellant it would have also established that the dividing line between the two leaseholds is that found in exhibit 3b
The appellant in our view has suppressed the said plan and therefore in the circumstances we are justified to draw an inference that if produced it would be against appellant s contention
From the aforesaid documentary evidence we hold agreeing with the courts below that the southern boundary of the appellant s holding which is conterminous with the northern boundary of the respondents  holding is the line between points A and B shown in exhibit 3b
The next question addressed by the courts below is how to ascertain the point A
The argument of learned counsel for the appellant is that the map translated into words indicates that the correct boundary should be a line drawn from the true meeting point of the four villages Pandebera Jharia Khas Lodhna and Kujama at a bearing of 8215  whereas the contention of the respondents is that the line actually drawn on the lease map correctly lays down the northern boundary of the respondents  leasehold
It is settled law that a map referred to in a lease should be treated as incorporated in the lease and as forming part of the document see Darapali Sadagar vs Najir Ahamed 1
As in this case the map is drawn to scale and incorporated in the lease deed it is not permissible to ignore the starting point of the boundary line and adopt instead any scientific point based on survey
The Commissioner appointed by the court tested the position of the six trijunction pillars shown in the map of lease dated November 23 1900 and found that two of the trijunction pillars were in their correct positions
On the basis of these two trijunction pillars the Commissioner relaid by the process of superimposition the northern boundary line of the leasehold property The point A in the map so laid does not tally with the point where the aforesaid four villages actually meet
He pointed out that the correct 11923 ILR 50 Cal 394 63 498 point where the said four villages met would be 1680 feet only from the trijunction pillar of Lodhna Kujama and Madhuban whereas the point A was at a distance of 1750 feet from the said trijunction pillar
But learned counsel for the appellant contends that according to exhibit 3 the western boundary should be according to the revenue plan and therefore point A should be fixed at a distance of 1680 feet from the trijunction pillar as that is the distance according to the revenue plan
But a perusal of exhibit I shows that there is no reference in regard to the western boundary to revenue records
That apart even if 1680 feet is taken as the distance between the injunction pillar and point A in the map it demonstrates that the measurement given in exhibit 3 was incorrect for there the distance was shown only as 1101 feet
But a more serious objection to the argument is that it is not permissible for a court to reconstruct the plan with reference to revenue records when the plan is self contained and drawn to scale
To summarize the question is whether the disputed extent is part of the respondents  holding or that of the appellant s holding
The map exhibit 3b annexed to the lease deed executed in favour of the respondents  predecessor in interest clearly demarcates the boundary line between the holdings of the appellant and the respondents and according to that plan the disputed extent falls within the boundary of the respondents  holding
The lease of the appellant s predecessor ie exhibit C also refers to a map but the appellant withheld it
In the sub leases created by the appellant maps were annexed and the boundary therein is in accord with that in exhibit 3b
Those documents contain clear admissions supporting the case of the respondents
No reliance can be placed upon the recitals in exhibit 1 as it is demonstrated that the extent given in respect of the western boundary is incorrect
On the aforesaid material both the courts have held that the disputed extent of land is part of the holding of the respondents
It is well settled that a map referred to in a lease should be treated as incorporated in the lease and as 499 forming part of the said document
In this case the maps accepted by us are drawn to scale and the boundary is clearly demarcated
The courts were therefore certainly right in accepting the boundaries drawn in the plan without embarking upon an attempt to correct them with reference to revenue records
The question really is one of fact and we accept the finding
The next question is whether the suit was barred by limitation
The encroachment by the appellant on the respondents  colliery and the removal of coal therefrom are alleged to have taken place in or about the year 1932
The respondents in the plaint averred that they came to know of the said encroachment and removal of coal by the appellant after they received the letter dated August 18 1941 from the Inspector of Mines and before that they had absolutely no knowledge or information whatsoever regarding thereto
The appellant denied the said allegation and stated that the respondents all along knew and had been aware that the portion of coal land in question belonged to and was the property of the appellant
In particular the appellant alleged that the respondents must have the knowledge of it since 1932 when there was a survey by the Department of Mines
On the said pleadings issue 3 was framed which reads Is the suit barred by limitation The learned Subordinate Judge found on the evidence that the proceedings in 1932 had nothing to do with the delineation of the boundary line between the two holdings
He held that article 48 of the Limitation Act applied to the suit and that the appellant had failed to prove that the respondents had knowledge of the sinking of the quarries and pits in the encroached land
On appeal the High Court accepted the finding
Though the High Court held that the burden of proof to establish knowledge on the part of the respondents beyond the prescribed time was on the appellant it has given the finding on the assumption that the initial burden was on the respondents to prove that they had knowledge of the said encroachment only within three years thereof
There are therefore concurrent findings of fact on the 500 question of knowledge
But learned counsel for the appellant contended that the finding is vitiated by the burden of proof having been wrongly thrown on the appellant
This submission is not accurate for as we have pointed out the High Court arrived at the finding of fact on the assumption that the initial burden of proof was on the respondents
It is common case that article 48 of the Limitation Act governs the period of limitation in respect of the present suit
It reads ___________________________________________________________ Period Time from Description of suit
of which period limitation begins to run
___________________________________________________________ For specific moveable When the per property lost or son having acquired by theft or the right to dishonest misappro the posses priation or conver Three sion of the sion or for com years
property first pensation for wrong learns in ful taking or detain whose posses ing the same
sion itis
__________________________________________________________ The article says that a suit for recovery of specific movable property acquired by conversion or for compensation for wrongful taking or detaining of the suit property should be filed within three years from the date when the person having the right to the possession of the property first learns in whose possession it is
The question is on whom the burden to prove the said knowledge lies The answer will be clear if the article is read as follows A person having the right to the possession of a property wrongfully taken from him by another can file a suit to recover the said specific moveable property or for compensation therefore within three years from the date when lie first learns in whose possession it is
Obviously where a person has a right to sue within three years from the date of his coming to know of a certain fact it is for him to prove that he had the knowledge of the said fact on a particular date for 501 the said fact would be within his peculiar knowledge
That apart section 3 of the Limitation Act makes it obligatory on a court to dismiss a suit barred by limitation although limitation has not been set up as a defence indicating thereby that it is the duty of a plaintiff to establish at any rate prima facie that the suit is within time
It is the obligation of the plaintiff to satisfy the court that his action is not barred by lapse of time see Lalchand Marwari vs Mahanth Rampur Gir 1 and Rajah Sahib Perhlad Sein vs Maharajah Rajender Kishore Sing 2 
Looking from a different perspective we arrive at the same result
Under the Evidence Act there is an essential distinction between the phrase burden of proof as a matter of law and pleading and as a matter of adducing evidence
Under section 101 of the Evidence Act the burden in the former sense is upon the party who comes to court to get a decision on the existence of certain facts which he asserts
That burden is constant throughout the trial but the burden to prove in the sense of adducing evidence shifts from time to time having regard to the evidence adduced by one party or the other or the presumption of fact or law raised in favour of one or the other
In the present case the burden of proof in the former sense is certainly on the respondents
But the question is whether they have adduced evidence which had the effect of shifting the onus of proof to the appellant
On behalf of the respondents their Colliery Manager was examined as P W 2
He stated in his evidence that the appellant had encroached upon the South Kujamal Colliery in Seam Nos 10 11 and 12 and another special seam known as 4 feet seam and that in August 1941 be came to know about the encroachment for the first time when the Mines Department forwarded a plan of the joint workings of the two collieries of the parties
He also stated that he had no knowledge of the encroachment before
In the cross examination two suggestions were made to him namely that in 1932 there was a survey of the plaintiffs  and defendants  coal land by the Mines Department and that Seam Nos 11 and 12 were 1 Pat 312
2 1869 12 MIA 292
502 worked by the appellant by open quarry system
He denied that he had any knowledge of the said two facts
The evidence of this witness has been accepted by the learned Subordinate Judge and the High Court also accepted his evidence though in its view it was not very satisfactory
This evidence therefore prima facie proves that the respondents had knowledge of the encroachment only in 1941
Let us now consider some of the decisions cited at the Bar
A division beach of the Patna High Court in Sundarji Shivji vs Secretary of State for India 1 held that when a defendant in an action based on tort seeks to show that the suit is not maintainable by reason of the expiry of the statutory period of limitation it is upon him to prove the necessary facts
There the suit was for conversion of property and the learned Judges applied article 48 of the Limitation Act to the said suit
After noticing the words in the last column of the article the learned Judges proceeded to observe thus  The starting date of limitation in the case of conversion is the date when the person who has the right to possession first learns of the act of conversion
 Adverting to the burden of proof the learned Judges observed There is nothing in the pleadings which would show precisely at what period tile plaintiff or the plaintiff s agent which is the same thing became aware of the sale and its wrongfulness that is to say became aware of the fact of conversion
The defendant was unable to provide us with any materials to fix that date and therefore his plea of limitation fails altogether because he is unable to show a date outside the period of three years which would entitle him to succeed
 With great respect to the learned Judges we hold that this case had not been correctly decided
The burden of proof as we have explained earlier is on a plaintiff who asserts a right and it may be having regard to the circumstances of each case that the 1 Pat 752 760
503 onus of proof may shift to the defendant
But to say that no duty is cast upon the plaintiff even to allege the date when they had knowledge of the defendant s possession of the converted property and that the entire burden is on the defendant is contrary to the tenor of the article in the Limitation Act and also to the rules of evidence
A division bench of the Calcutta High Court in Kalyani Prasad Singh vs Borrea Coal Co Ltd 1 did not accept the view of the Patna High Court but followed that of the Bombay High Court in the Bank of Bombay vs Fazulbhoy Ebrahim 2
In the context of the application of article 48 of the Limitation Act the learned Judges of the Calcutta High Court observed thus The burden of proof rests upon the party who substantially asserts the affirmative of the issue 
We are of opinion that the onus is upon the plaintiff in these suits to prove that the knowledge of his father wag within three years of the suit
 In Talyarkhan vs Gangadas 3 Rangnekar J formulated the legal position thus The onus is on the plaintiff to prove that he first learnt within three years of the suit that the property which he is seeking to recover was in the possession of the defendant
In other words he has to prove that he obtained the knowledge of the defendant s possession of the property within three years of the suit and that is all
If he proves this then to succeed in the plea of limitation the defendant has to prove that the fact that the property was in his possession became known to the plaintiff more than three years prior to the suit
 We accept the said observations as representing the correct legal position on the subject
The appellant gave evidence to show that the encroachment was prior to 1932 but there is no acceptable evidence on their part to establish that the respondents came to know of the removal of coal by the appellant or their possession of the coal removed beyond three years prior to the suit
Learned counsel 1 AIR 1946 Cal
123127 2 3 Bom
848 860
504 took us through the correspondence that passed between the parties and the Mining Department in 1932
But it does not prove that the respondents had knowledge of the fact that the appellant had encroached upon any portion of their coal mines
Emphasis is also laid upon the fact that there was quarry system of working in the mines and a contention is advanced that quarrying is done openly and therefore the respondents must have had knowledge of the said fact
But the courts found from Commissioner s maps that in the encroached portion there were only underground workings and that the quarries were mostly outside the encroached area
The learned Subordinate Judge and the High Court refused to base any finding on mere probabilities without clear evidence to sustain them
We cannot therefore hold that the findings of the courts are vitiated by an error of law by the burden of proof having been wrongly thrown on the appellant
We accept the findings of the High Court that the respondents had knowledge of the appellant s encroachment of their coal mines only in the year 1941 which was within three years of the date of the filing of the suit
The only other outstanding question that remains for consideration is that covered by Issue No 7
In paragraph 11 of the plaint the plaintiffs allege that under the Indian Mines Act and the Rules and Regulations made thereunder the plaintiffs are bound to keep a barrier of 25 feet to the south of the defendant s working and therefore the coal that is still left in the encroached area is not by any means accessible to the plaintiffs and being thus wholly unworkable is entirely lost to them for ever
In the written statement the defendants did not deny the fact that the coal still left in the encroached area was lost to the plaintiffs but only stated that it was purely a question of statutory obligation on the part of the plain
tiffs with which the Defendant had nothing to do
The learned Subordinate Judge accepted the case of the plaintiffs and held that the coal that was left in the encroached area was entirely lost to them by being rendered unworkable
The High Court accepted the finding
Learned counsel for the appellant contends that under the Rules the respondents could request the mining authorities to exempt them from the operation of rule 76 of the Indian Coal Mines Regulation 1946 and if exemption was granted they could remove the coal left by the appellant in the encroached area
This possibility of the respondents getting an exemption from the operation of the rule was not raised either before the learned Subordinate Judge or before the High Court
Nor can we hold in favour of the appellant on the basis of such a possibility
We therefore accept the concurrent finding of fact arrived at by the courts below in respect to this issue
No other point was raised
The appeal fails and is dismissed with costs
Appeal dismissed


Summary:
The appellants and the respondents were owners of adjoining collieries and the suit out of which the present appeal arose was one brought by the respondents for certain reliefs on the allegation that the appellants had encroached upon their coal mines and removed coal from the encroached portion and that they came to know of the said encroachment and removal of coal after they had received the letter dated August 18 1941 from the Inspector of Mines
The appellant denied the encroachment and pleaded that the suit was barred by limitation inasmuch as the respondents had knowledge of the encroachment in 1932 then there was a survey by the Department of Mines
The trial judge found on evidence that the proceedings in 1932 had nothing to do with the matter held that article 48 of the Limitation Act applied to the suit and that the appellants had failed to prove that the respondents had knowledge of the sinking of the quarries and pits in the encroached land and decreed the suit
The High Court on appeal accepted the finding of the trial court and although it placed the burden of proving knowledge on the part of the respondents beyond the prescribed time on the appellants nevertheless proceeded on the assumption that the initial burden to prove that they had knowledge of the said encroachment within the period was on the respondents and affirmed the decree of the trial court
Held that the burden of proof had not been misplaced
Under article 48 of the Indian Limitation Act which prescribes a three years  limitation from the date of the knowledge the initial onus is obviously on the plaintiff to prove that date since it would be within his special knowledge
Moreover under section 3 of the Act which makes its obligatory on the court to dismiss a suit barred by limitation even though such a plea is not set up in defence it is for the plaintiff to establish that the suit is not so barred
Lalchand Marwari vs Mahant Rampur Gir pat
PC 312 and Rajah Sahib Perhalad Seim vs Maharajah Rajender Kishore Singh 1869 12 MIA 292 referred to
Under the there is an essential distinc tion between burden of proof as a matter of law and pleading and as a matter of adducing evidence and under section 101 of the 493 Act the burden in the former sense is always on the plaintiff and never shifts but the burden in the latter sense may according to the evidence led by the parties and presumptions of law or fact raised in their favour
Sundarji Shivji vs Secretary of State for India Pat 752 disapproved
Kalyani Prasad Singh vs Borrea Coal Co Ltd AIR 1946 Cal
123 Bank of Bombay vs Fazulbhoy Ebrahim and Talyarkhan vs Gangadas Bom
848approved
Held further that it is well settled that a map referred to in a lease is a part of the lease
Where therefore the map is drawn to scale and clearly demarcates the boundary it is not permissible to ignore it and reconstruct the boundary with reference to the revenue records
Darapali Sadagar vs jajir Ahmad Cal 394 referred to