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

2. 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 15, 1900, his son, Raja Durga Prasad Singh, granted coal and coal 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 had 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 D. M. Mathews on October 11, 1901. Walji Kheta represented the defendants. By diverse transfers, the interest of Samata 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 these allegations, they asked for the following reliefs :(a) That the intermidiate boundary line between the plaintiffs coal-land and the defendants coal-land be ascertained and fixed.(b) That the area encroached upon by the defendants be ascertained and the defendants be directed to vacate the same.(c) That a permanent injunction be issued against the defendants restraining them from encroaching upon the plaintiifs coal-land and cutting and removing coal therefrom.(d) That 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 plaintiff against the defendants.The defendants denied that they had encroached upon the plaintiffs coal-land and stated that the suit was barred by limitation. They further pleaded that the plaintiffs would not be entitled to any damages. The learned Subordinate Judge held that the defendants had encroached upon the plaintiffs coal-land, that the suit was not barred by limitation, 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.

Reasoning:
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.