Case: K. S. Nanji And Company Vs. Jatashankar Dossa And Others

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 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 defendants 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 v. Borrea Coal Co. Ltd., AIR 1946 Cal 123 did not accept the view of the Patna High Court, but followed that of the Bombay High Court in the Bank of Bombay v. Fazulbhoy Ebrahim, 24 Bom LR 513 : (AIR 1923 Bom 155 ). In the context of the application of Art. 48 of the Limitation Act, the learned Judges of the Calcutta High Court observed at p. 127 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 was within three years of the suit."In Kaikhusroo Maneksha Talyarkhan v. Gangadas Dwarkadas, ILR 60 Bom 848 : (AIR 1936 Bom 322 ) Rangnekar, J., formulated the legal position thus at p. 860 (of ILR Bom) : (at pp. 326-327 of AIR) :"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 defendants 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.13. 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 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 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 Commissioners 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 appellants encroachment of their coal mines only in the year 1941 which was within three years of the date of the filing of the suit.14. 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 defendants 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 plaintiffs 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.15. Learned counsel for the appellant contends that under the Rules the respondents could request the mining authorities to exempt them from the operation of R. 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 of this issue.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The answer to this question depends upon the correct delineation of the boundary line between 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 respondentsboth these documents the southern boundary is shown as the northern boundary of the leasehold land of Samanta. One interesting features 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 Ex. 3(b). These documents to which the defendants predecessors were parties contain a clear admission that the boundary line between the two leaseholds, i. e., between appellants and that of the respondents is the line between A and B shows in plan Ex. 3(b). We have no doubt that if the plan annexed to Ex. C was produced by the appellant, it would have also established that the dividing line between the two leaseholds is that found in Ex. 3(b). 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 appellants contention. From the aforesaid documentary evidence we hold, agreeing with the courts below, that the southern boundary of the appellants holding, which is conterminous with the northern boundary of the respondents holding is, the line between points A and B shown in Ex.pointed out that the correct 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 trijunctiona perusal of Ex. 1 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 trijunction pillar and point A in the map, it demonstrates that the measurement given in Ex. 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 tomap, Ex. 3(b), 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 fails within the boundary of the respondents holding. The lease of the appellants predecessor, i. e., Ex. C, also refers to a map, but the appellant withheld it. In the sub-lease created by the appellant, maps were annexed and the boundary therein is in accord with that in Ex. 3(b). Those documents contain clear admissions supporting the case of the respondents. No reliance can be placed upon the recitals in Ex. 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.9. It is well settled that a map referred to in a lease should be treated as incorporated in the lease and as 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 thethe 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 question ofsubmission 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 theevidence, therefore, prima facie proves that the respondents had knowledge of the encroachment only ingreat 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 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 defendants 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.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 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 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 Commissioners 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 appellants encroachment of their coal mines only in the year 1941 which was within three years of the date of the filing of thepossibility 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 of this issue.