1. This is an appeal on behalf of the Plaintiff No. 1 in a suit for declaration of its title to 965 bighas 15 cottas of land. Plaintiffs'' case is that this disputed land is the northern portion of mouza Pachakari, called Kismat Pachakari, appertaining to touzi No. 49 of the Jessore Collectorate. The case of the Defendant No. 1 who is the only contesting Defendant in this case is that the disputed land is a part of mouza Kedarerdanga, appertaining to touzi No. 250 of the said Collectorate, lying to the immediate north of mouza Pachakari. The trial Judge gave judgment in favour of the Plaintiffs. The learned District Judge on appeal by the Defendant No. 1 to the lower Appellate Court has reversed that decision and has dismissed the Plaintiff''s suit. Plaintiff No. 1 appeals to this Court. The only point for determination in this appeal is whether the disputed land is a part of mouza Pachakari, appertaining to touzi No. 49 or to mouza Kedarerdanga, appertaining touzi No. 250. In order to prove his title. Plaintiff No. 1 relies upon the thak Survey map of 1856 and Revenue Survey map of 1857. In the case of Jagadindra Nath Roy v. Secretary of State for India ILR 30 Cal. 291; S.C. 7 C.W.N. 193 (P. C.) (1902) Lord Lindley observed as follows:--
In every case the question what lands were included in the permanent settlement is a question of fact and not of law. This question may or may not be satisfactorily proved by subsequent survey maps. The onus of proving that any particular lands were included in the Permanent Settlement of 1793, in other words, the onus of proving that the Government revenue then fixed was assessed upon any particular lands, is clearly on those who affirm that such was the case."
" Maps and surveys made in India for revenue purposes are official documents prepared by competent persons and with such publicity and notice to persons interested as to be admissible and valuable evidence of the state of things at the time they are made. They are not conclusive and may be shown to be wrong, but in the absence of evidence to the contrary, they may be properly judicially received in evidence as correct, when made.
2. In this case the learned District Judge held that the Thak and Revenue Survey maps, were not conclusive on the question of Plaintiff''s title to the disputed land inasmuch as objection was raised to the inclusion of this land in Plaintiff''s touzi of the time of the Thak and Revenue Survey and the person through whom the proprietor of touzi No. 49 claimed to be in possession at the time of these surveys admittedly encroached on neighbouring lands. The learned Judge has further pointed out that no agent of the proprietors of touzi No. 250 was present at the time when these lands were surveyed as appertaining to touzi No. 49. It was for the final Court of fact to decide whether the Revenue or the Thak Survey map is sufficient to establish that the disputed land is a part of the Plaintiffs'' touzi or not. The learned District Judge, on a consideration of the facts and circumstances attending the Revenue and Thak Surveys, has come to the conclusion that these maps do not establish the Plaintiff''s title. The learned District Judge has further pointed out that these lands are in possession of the Defendant No. 1 and his predecessors-in-interest from a very long time as appertaining to Touzi No. 250. The learned Judge has relied upon an ex parte decree for rent in respect of a portion of the disputed land obtained by the proprietors of Touzi No. 250 in the year 1863. He has also relied on the partition papers prepared under the Estates Partition Act during the period 1900-1908, the record-of-rights prepared in the course of petty settlement of the year 1900-1901 and the finally published record-of-rights prepared in the course of the district settlement operations in the year 1922.
3. Mr. Bose, appearing on behalf of the Appellant, however, contends that the entries in the partition papers are not evidence against the Plaintiff No. 1 inasmuch as no notice under sec. 50 (c) of the Estates Partition Act was served on the proprietors of estate No. 49 in the course of the proceedings for partition under the Estates Partition Act. Assuming that no such notice was served, the entries in my opinion are relevant under secs. 35 and 13 of the Indian Evidence Act. It is contended by Mr. Bose that the record contemplated by sec. 35 of the Evidence Act is the final record as it stands after necessary corrections made on notice to proprietors of adjoining mouzas under sec. 50 (c) of the Estates Partition Act. It appears, however, that the records of existing rents and other assets, published under sec. 48 of the Act, are accepted by the Deputy Collector under sec. 50 for purposes of effecting the partition. It is true that the Deputy Collector is thereafter required to serve a notice on the proprietors of each of the adjoining estates. But that does not mean that the record which has already been prepared and accepted by the Deputy Collector for purposes of partition in the course of the performance of the duties imposed upon him by the statute is not a record within the meaning of sec. 35 of Indian Evidence Act. At any rate, the fact that; the disputed land was claimed as part of touzi No. 250 in the course of the proceedings under the Estates Partition Act is a transaction within. the mean-in of sec. 13 of the Evidence Act and is therefore relevant. So far as the record of the petty settlement of the year 1900-1901 is concerned, the objection of Mr. Bose is that it was not finally published. There is a clear finding however by the learned District Judge that it was published as required by law. Mr. Bose however contends that this finding of the learned District Judge is bad in law inasmuch as it is based on some additional documentary evidence which he took without assigning any reasons as required by Or. 41, r. 27 of the Code of Civil Procedure. It, however, appears that the document which proved the final publication of the record-of-rights was admitted in evidence without any objection. It further appears that this additional evidence is simply a report which was mentioned in the order-sheet of the Revenue Officer exhibited in the trial Court. This report not having been put in before the trial judge, the learned District Judge took the report mentioned in that order-sheet as additional evidence in order to enable him to pronounce the judgment in the case as there was no objection to its reception by the Plaintiffs. There is therefore no substance in Mr. Bose''s contention that the learned Judge''s finding about the final publication of record-of-rights prepared in the course of the petty settlement proceedings is bad in law. The learned District Judge was therefore justified in relying on all these pieces of evidence which unmistakably show the possession of the proprietors of touzi No. 250 in respect of the disputed land from a very long time and in coming to the conclusion that the disputed land is a part of touzi No 250. The decision of the learned District Judge cannot therefore be successfully challenged in this appeal. The appeal accordingly fails and is dismissed with costs.
