In a boundary dispute involving mining rights, the onus of proving encroachment and damages lies on the plaintiffs, and the mere fact that the defendants removed coal from an adjoining area does not establish encroachment without proof that they encroached on the plaintiffs' land.

H.Mahapatra, J.

1. Both these appeals arise out of a judgment and decree passed by the learned Additional District Judge of Manbhum-Singhbhum. In one (S. A. 1064 of 1956) the defendants are the appellants and in the others (S. A. 1291 of 1956) the plaintiffs are the appellants. The parties to this litigation are interested in coal mining rights in two adjoining blocks. The plaintiffs block of coal-land comprises of 100 bighas and it is on the west, where" us, the defendants block comprising of 50 bighas lies on the, east. The real dispute between the parties is about the common boundary line between these two blocks. The plaintiffs brought the suit for demarcation of the boundary line between these two blocks of coal-land and, furthermore, they claimed compensation, tentatively valued at one thousand rupees, from the defendants, on the allegation, that the defendants had extracted coal from under ground within the area, belonging to the plaintiffs. The trial Court decreed the suit, by determining the boundary line between the two blocks.

It further held that the exact amount of damage, caused to the plaintiffs by the removal of coal by the defendants from their area, would be determined in the proceeding for final decree, in the light of the findings arrived at by that Court, in regard to the coal taken by way of removal of pillars, left during the working of the defendants predecessor-in-interest, one Mr. B.C. Bhattacharji. Against the decree passed by the trial Court, the defendants preferred an appeal and the learned Additional District Judge, Manbhum-Singhbhum, has now passed a modified decree. He has confirmed the boundary line, as determined by the trial Court but he has set aside the portion of the trial Courts decree in regard to the plaintiffs claim of damages, holding, that the plaintiffs have failed to prove that the encroachment was made by the defendants or that, they had suffered any loss or damage, on account of the removal of coal by the defendants from their area. That is why, both the plaintiffs and the defendants, have preferred two second appeals to this Court against the judgment.

2. The plaintiffs took the lease of their coal-lands, measuring 100 bighas, in May 1902. The defendants took their lease of 50 bighas in March 1937. To neither of these leases, was attached any plan. Before the defendants took their lease, one Mr. B.C. Bhattacharji was the lessee in respect of the said land but he had given his lease.

3. Learned counsel, appearing for the defendants-appellants, contends that, the determination of the boundary line, as made by the Courts below, on the basis of the report of the pleader-commissioner, has been completely vitiated, inasmuch as, the pleader-commissioner did not base his conclusions, with reference to the admitted joint survey map, prepared in February 1954, to which both the plaintiffs and the defendants were parties. This joint survey was conducted, as there arose some dispute between these two parties, in respect of their common boundary and both of them appointed one Mr. Paul to conduct a survey and to determine the respective areas of the parties. He made survey plans and drew certain maps at that time and both the parties signed those documents, as a token of their acceptance.

In the present litigation, a commissioner was appointed, by name Mr. Biswas, to conduct a local investigation and to determine the two areas, belonging to the two parties, with reference to this joint survey plan, prepared by Mr. Paul. The pleader-commissioner submitted a report to the Court saying that he could not determine, with reference to that joint survey plan the fixed points, from which he could start the measurements and as such he returned the writ. Subsequently, this gentleman, Mr. Biswas, was again appointed as a commissioner but, this time, he was asked to prepare the boundary line between the two blocks of land in question, with reference to the certified copies of the maps, that had