Back
1939 Supreme(SC) 48
Privy Council At Patna
Mr. Jayakar, Sir George Rankin, Justice Lord Romer, JJ.
Chandan Mull Indra Kumar and others -Appellant
Versus
Chiman Lal Girdhar Das Parekh and another -Resopndent
Privy Council Appeal No. 90 of 1938, Patna Appeal No. 16 of 1937
Decided On : 10-10-1939
H.S.L. Polak and Co., T.L. Wilson and Co., J.M. Pringle, A.M. Dunne, W.W.K. Page, L.L. Cohen
A survey map is not conclusive if contradicted by oral evidence and the physical improbability of geographical shifts. Furthermore, courts cannot grant relief for encroachments not specifically pleaded in the plaint.
Headnote:(A) Evidence - Commissioner's Report - Interference with the result of a long and careful local investigation by a commissioner, whose integrity and carefulness are unquestioned, should be deprecated unless there are clearly defined and sufficient grounds. (Paras 14, 15)
(B) Evidence - Survey Maps vs. Oral Evidence - Where a survey map indicates a position of a geographical feature that would require an improbable shift to align with current reality, and where oral evidence from local witnesses confirms no such shift occurred, the map may be regarded as an inaccurate sketch rather than a precise survey. (Paras 17, 18)
(C) Pleadings - Scope of Relief - Relief cannot be granted for a claim or encroachment that was not specifically described or sought in the plaint, even if discovered during the course of the proceedings. (Para 19)
Facts of the case:
A dispute arose regarding the ownership of coal under a strip of land. The boundary between two administrative areas was defined by a streamlet. The appellants claimed that the streamlet had shifted its course since a revenue survey, and thus the coal under the old position of the streamlet belonged to them. A court-appointed commissioner's report indicated that the streamlet's position in the revenue survey was north of its current position and calculated the quantity of coal extracted by the respondents from that area.
Findings of Court:
The court found that no evidence supported the claim that the streamlet had shifted. Local witnesses testified that the streamlet had remained in its current position. The court concluded that the revenue survey map was likely a sketch and not a precise survey of the streamlet's course.
Issues: The primary issues were whether the correct boundary was the current position of the streamlet or the position depicted in the revenue survey map, and whether the respondents had wrongfully extracted coal from the appellants' leased area.
Ratio Decidendi: The court ruled that a survey map cannot be trusted when it is contradicted by oral evidence and the physical improbability of a geographical feature shifting. Additionally, the court held that it would be improper to grant relief for a small encroachment that was not specifically pleaded in the plaint.
Result: Appeal dismissed.
Legal Category Hierarchy
-
property law
-
mining rights
- coal mining leases
-
boundary disputes
- natural boundaries
-
mining rights
-
practice and procedure
-
evidence
- commissioner's reports
- survey maps
-
pleadings
- amendment of plaint
-
evidence
Lord Romer:-
This is an appeal from a judgment and decree of the High Court of Judicature at Patna dated 1st April 1937 which reversed a judgment and decree of the Subordinate Judge of Dhanbad dated 21st February 1933 and dismissed the appellants' suit. The question for decision is whether the appellants or some of them are entitled to recover damages from the respondents by reason of the respondents having cut and removed coal under a certain area of land which will be described later.
The appellants' claim to the coal in question is founded upon a lease or rather a sub-lease dated 17th July 1908 (hereinafter called the sub-lease) whereby there was demised to the Phularitand Coal Company Limited (hereinafter called the Phularitand Company) coal under the land described in Sch. 3 thereunder written and also delineated and described in the map or plan thereto annexed and thereon coloured blue. Amongst the land described in Sch. 3 was land situate in the mauza Ganeshpur and described therein as being bounded on the north by the mauzas Buddora and Kenduadhi. On the plan there is shown lying between what is marked as Ganeshpur on the south and what is marked as Kenduadhi on the north a streamlet or jore. The plan would seem to indicate that no part of this jore was situate in Ganeshpur inasmuch as it is not coloured blue thereon. So far as the plan is concerned therefore the northern boundary of that part of Ganeshpur which abuts on Kenduadhi is indicated as being the southern bank of the jore. The blue colour on the plan extends to that bank but no further. In the month of March 1926 the Phularitand Company went into voluntary liquidation with a view to effecting an amalgamation with the Baraboni Coal Concern Limited (hereinafter called the Baraboni Company) by means of a sale to them of all its assets. On 30th June 1927 accordingly by an agreement of that date the liquidators of the Phularitand Company agreed to sell to the Baraboni Company as from 1st April 1926 the whole of the assets of the Phularitand Company. According to this agreement the liquidators were to retain possession of the assets until completion of the sale which did not take place until much later. It is alleged however by the appellants that the Baraboni Company was in fact put into possession of the assets upon 1st April 1926.
On 29th January 1928 the Baraboni Company who are the appellants No. 2 discovered that the respondents who were leaseholders of the coal under the western part of Kenduadhi were or had been working a seam of the coal under the jore. In the belief that for the reasons hereinafter stated such coal was included in the sub-lease they in conjunction with appellant 1, Chandan Mull Indra Kumar, instituted on 29th August 1930 the present suit against the respondents claiming a declaration of title, an injunction and damages. The appellant last mentioned had in the year 1928 purchased some of the assets of the Baraboni Company and was under the impression that his purchase included the coal under Ganeshpur. In this he was mistaken. It is now conceded that he had no interest in that coal and he need not be further considered. Nor at the date of the institution of the suit had the Baraboni Company any property in the coal inasmuch as their purchase of the assets of the Phularitand Company had not been then completed. They based their claim to relief however upon their alleged possession of the demised coal since 1st April 1926 and merely brought in the Phularitand Company as formal defendants. But by order dated 12th August 1932 the Phularitand Company were struck out as defendants and added as plaintiffs and are now the appellants No. 3.
In view of what has been stated about the plan attached to the sub-lease, it would not appear at first sight that the appellants 2 and 3 could have any right to complain of the working by the respondents of coal under the jore. Their claim to do so however was as set out in their plaint founded upon the following al
