P (PLP)

CHOWDHURY, J.‑This appeal by the defendants Nos. 1 to 3, 7 to 10 and 12 arises out of the suit by the plaintiffs for recovery of khas possession of the suit lands on declaration of their title thereto as revenue sale purchasers. The plaintiff's case, shortly stated, is as follows: The disputed lands appertain to revenue paying Taluk No. 22030/1 Ganeswar Sarnia of Sylhet Collectorate, created out of Lakheraj resumed lands of Taluk Madan Mohan Adhikari. The said Taluk was recorded in Chak No. 711 of Thak No. 4725 of the Thak survey of Pargana Banchar in the district of Sylhet. The plaintiffs purchased the Taluk in revenue sale held on the' 9th September, 1930 which was confirmed on the 12th November, 1930. They took delivery of possession through the Collectorate on the 25th May, 1931. The defendants, some of whom are the heirs of the Pattadar of the Taluk and the others the transferees either from the original proprietors or from their heirs, resisted physical possession of the plaintiffs in the month of Baisakh 1338 B.S., which necessitated the filing of the present suit by the plaintiffs on the 11th September, 1942, in the Court of the Munsif, Moulvi Bazar, Sylhet. But when the suit was ripe for hearing, the plaint was returned on the ground of pecuniary jurisdiction on the 16th September, 1944. The Civil Courts were closed on the next day on account of the Annual Vacation. The plaint was refiled in the Court of the 2nd Subordinate Judge, Sylhet, on the 20th October, 1944, i.e., on the reopening day of the Civil Courts after the Annual Vacation. The suit was contested by the defendants Nos. 1 to 3, 7, 8, 10, 12 and

13. The defence of defendant No. 13 was that the lands in his possession did not appertain to Taluk Ganeswar Sarnia, but appertained to Taluk Golam Hussain, which was ultimately admitted by the plaintiffs ; and the suit was dismissed against him on the finding that he was not a necessary party to the suit though the proper course should have been to strike out his name under Order I, Rule 10 (2) of the Code of Civil Procedure. Rest of the contesting defendants claimed the suit lands as appertaining not to Taluk No. 22030/1 Ganeswar Sarnia, but to Taluk No. 21940/394 Golam Hussain, and that Thak survey did not record the lands of the Taluk correctly and that the suit, not being filed within 12 years from the date when the title vested in the plaintiffs, was barred by limitation. Besides the common defence mentioned above, the contesting defendants Nos. 7 and 8 claimed possession over 12 years in Patni right under defendants Nos. 1 to 3 in the suit lands as appertaining to Taluk Golam Hussain; and defendant No. 12 claimed tenancy right under defendants Nos. 7 and 8 and claimed possession for over 12 years before the sale. There was a local investigation and relay of the disputed lands in suit with reference to the Thak Survey by a Pleader Commis sioner while it was pending in the Court of the Munsif, Moulvi Bazar, Sylhet, to ascertain if the suit lands were covered by the Thak Chak No.

711. The Pleader Commissioner submitted his report, field book and the map. He was examined by the plaintiffs in the Court of the Additional Subordinate judge, where the suit was refiled and tried and his report, field book and map were exhibited‑in the suit as Exhibits 1, 1 (a) and 2, respectively. The trial Court decreed the suit in part so far as it related to disputed lands covered' by the Thak Chak No. 711, as relayed by and depicted in the map of the Pleader Commissioner, holding that those were the lands of plots Nos. 1, 2, 3 and 4 of Exhibit 9, the patta, creating Taluk Ganeswar Sarnia and recorded in the Thak Survey. It held that the plaintiffs acquired title by the revenue sale purchase and the defendants Nos. 7 and 8 were really set up by the defendant No. 1 ; that the patni Patta, under which the defendants Nos. 7 and 8 claimed, was a fraudulent and fictitious document, created by defendant No. 1 in the name of the minor sons of his law‑agent Nabin Chandra De, as a shield against any possible revenue sale just after the sale of their other Taluks in the neighbourhood ; and that the tenancy of defendant No. 12 had not been established. The learned Additional Subordinate Judge further held that the suit was not barred by limitation. On appeal by the contesting defendants, the learned Additional District judge allowed the appeal in part so far as it related to the lands of plots Nos. 3 and 4 of the patter, Exhibit 9, and set aside the judgment and decree of the trial Court to that extent. He dismissed the appeal in respect of plots Nos. 1 and 2 of the said patta and confirmed the judgment and decree of the trial Court to that extent, holding. that the Pleader Commissioner's snap and report ,,6howed the positions of Angharuya Tilla, Dhulicharra and Tea Garden Road along the eastern side of which runs Anupray's Kara and Taluk Golam Hussain, the four bound aries of plots Nos. 1 and 2 of the patter, Exhibit 9, of Taluk Ganeswar Sarma ; and that the entire lands within these bound aries, as found and located in the map by the Pleader Commis sioner, were the lands of plots Nos. 1 and 2 of the patta. As regards the lands of plots Nos. 3 and 4, the learned Additional District judge did not agree with the findings of the trial Court and allowed the appeal of the defendants, and dismissed the suit of the plaintiffs observing " All that we find is that no land can be found within the descriptions " (descriptions given in the patter). We are not concerned with these lands in respect of which the suit has been dismissed as the learned Advocate did not press the cross‑objection filed by the plaintiffs respondents. Against the aforesaid decision of the learned Additional District judge, the contesting defendants have filed the present appeal. Mr. B. K: Das, appearing for the appellant, argued two points in support of the appeal. His first point was that no decree should have been passed on the basis of Thak Survey on the principle that Thak Survey records are not documents of title and the revenue sale purchaser derived his title from the Crown on the basis of the Patter. Exhibit 9, and not from the defaulting proprietors who might have been in possession of excess lands, wrongly recorded as lands appertaining to Taluk Ganeswar Sarnia in the Thak Survey, which took place about 17 years after the Patter ; and that, at any rate, the Courts below were wrong in relying on the map and the report of the Pleader Commissioner appointed not by the Court which ultimately tried the suit but by the Court which had no jurisdiction to try it. His second point was that the suit was barred by limitation, as it was not filed within 12 years from the date when the sale became final. As to the first point of Mr. Das, we are of opinion that it has no substance. The map, Exhibit 2, and the report, Exhibit 1, of the Pleader Commissioner who was examined in the case by the plaintiffs are admissible in evidence not as map and report of the Pleader Commissioner appointed by the Court, but as map and report of a witness of the plaintiffs who had relayed the suit lands with reference to the Thak Survey and depicted the same with1and features in his map and report. The learned Additional District Judge relied more on the boundaries mentioned in the Patter, Exhibit 9, so far as the lands of plots Nos. 1 and 2 of that Patter were concerned, with reference to the Pleader Commis sioner's map and report and established by the oral evidence of the parties in this case than on the Thak Survery records and held " The block of lands covered by plots Nos. 1 and 2 of the patter will have the following boundaries: North‑Angharuya Tilla, South‑Dhulicharra, East‑‑Anupray's Kara, and West‑Taluk Golam Hussain. This would exactly cover the portion of the suit lands to the west of the Alicherra Tea Garden Road. The only difference is about the area. The area is much more than what is stated in the patter. There is no evidence that the area in the patter was given by accurate measurement. There was anxiety for the pattadars always to minimise the area. This Court is in agree ment with the trial Court and finds that the plots Nos. 1 and 2 cover the portion of the suit lands to the west of the Alicherra Tea Garden Road." Besides their Lordships of the Privy Council held in the case of Jagadindra Nath Roy v. Secretary of State for India I. L. R. 30 Cal. 291. " 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 judicially received in evidence as correct when made." In the present case nothing has been shown to prove that the Thak Survey, papers and map are incorrect. Thak Survey papers may not be documents of title, but certainly they are evidence of title. As regards the second point, Mr. Das contended that the sale took place on the 9th September, 1930, and under section 80 of the Assam Land and Revenue Regulation, 1886, it became final on the 60th day of the sale, i.e., on the 7th November, 1930, and not on the date of the confirmation of the sale mentioned in the sale certificate, i.e., on the 12th November, 1930, and that the title vested in the purchaser from the date when the sale became final. Plaintiffs filed the suit on the 11th November, 1942. It was beyond 12 years from the date when the sale became final and so the suit was barred by limitation. He relied on the case of Jitendra Kumar Pal Chowdhury v. Mohendra Chandra Sarma and others 24 C. L. J.

62. That case no doubt would have been applicable to defendants Nos. 7, 8 and 12, if both the Courts below had not found that patni settlement set up by defendants Nos. 7 and 8 was fraudulent and fictitious and they were set up by defendant No. 4 and that the tenancy set up by defendant No. 12 under defendants Nos. 7 and 8 was also not established. So, no question of limitation would arise on the above finding so far as those defendants are concerned. The learned Advocate did not challenge those findings before us. Defendants Nos. 1 to 9 are the defaulting proprietors and defendant No. 10 claims to be in, possession of a portion of the suit lands, as appertaining to Taluk Golam Hussain, over 12 years before the revenue sale of the disputed Taluk. All of them come under section 63 of the Assam Land and Revenue Regulation, 1886, and are jointly and severally liable to pay revenue due and they are defaulters under section 67 of the Regulation, and limitation will run against them not from the date when the sale became final but from the date of delivery of possession, i.e., from the 25th May, 1931. So, the suit is not barred by limitation. In support of this view, reference may be made to the case of Mahim Chandra Chowdhury v. Piyari Lal Das I. L. R. 44 Cal. 412, and also to the case reported in 24 C. L. J. 62, cited by Mr. Das and referred to in the case, reported in I. L. R. 44 Cal.

412. We are, therefore, of opinion that there is no substance in the appeal and we dismiss the same with costs. The cross‑objection filed by the plaintiff‑respondents was not pressed and it is, accordingly, dismissed without costs. ISPAHANI, J.‑I agree. K.M.A Appeal and cross‑objection Dismissed.