K. S. Nanji And Company Vs.
Jatashankar Dossa & Ors  INSC 113 (22 March 1961)
CITATION: 1961 AIR 1474 1962 SCR (1) 492
CITATOR INFO :
D 1973 SC 814 (6)
Limitation-Encroachment on coal lands-Suit
for damages on ascertainment of boundary-Knowledge of encroachment--Burden of
proof-Indian Limitation Act, 1908 (9 of 1908), art. 48Indian Evidence Act, 1872
(1 of 1872), ss. 3, 101.
The appellants and the respondents were
owners of adjoining collieries and the suit out of which the present appeal
arose was one brought by the respondents for certain reliefs on the allegation
that the appellants had encroached upon their coal mines and removed coal from
the encroached portion and that they came to know of the said encroachment and
removal of coal after they had received the letter dated August 18, 1941, from
the Inspector of Mines. The appellant denied the encroachment and pleaded that
the suit was barred by limitation inasmuch as the respondents had knowledge of
the encroachment in 1932 then there was a survey by the Department of Mines.
The trial judge found on evidence that the proceedings in 1932 had nothing to
do with the matter, held that art. 48 of the Limitation Act applied to the suit
and that the appellants had failed to prove that the respondents had knowledge
of the sinking of the quarries and pits in the encroached land and decreed the
suit. The High Court on appeal accepted the finding of the trial court and
although it placed the burden of proving knowledge on the part of the
respondents beyond the prescribed time on the appellants, nevertheless
proceeded on the assumption that the initial burden to prove that they had
knowledge of the said encroachment within the period was on the respondents and
affirmed the decree of the trial court.
Held, that the burden of proof had not been
Under art. 48 of the Indian Limitation Act,
which prescribes a three years' limitation from the date of the knowledge, the
initial onus is obviously on the plaintiff to prove that date since it would be
within his special knowledge.
Moreover, under s. 3 of the Act, which makes
its obligatory on the court to dismiss a suit barred by limitation, even though
such a plea is not set up in defence, it is for the plaintiff to establish that
the suit is not so barred.
Lalchand Marwari v. Mahant Rampur Gir, (1925)
I.L.R. 5 pat.
(P.C.) 312 and Rajah Sahib Perhalad Seim v.
Maharajah Rajender Kishore Singh, (1869) 12 M.I.A. 292, referred to.
Under the Indian Evidence Act there is an
essential distinction between burden of proof as a matter of law and pleading
and as a matter of adducing evidence and under s. 101 of the 493 Act the burden
in the former sense is always on the plaintiff and never shifts, but the burden
in the latter sense may according to the evidence led by the parties and
presumptions of law or fact raised in their favour.
Sundarji Shivji v. Secretary of State for
India, (1934) I.L.R. 13 Pat. 752, disapproved.
Kalyani Prasad Singh v. Borrea Coal Co. Ltd.,
A.I.R. 1946 Cal. 123, Bank of Bombay v. Fazulbhoy Ebrahim, (1922) 24 Bom. L.R.
513 and Talyarkhan v. Gangadas, (1935) I.L.R. 60 Bom. 848,approved.
Held, further, that it is well settled that a
map referred to in a lease is a part of the lease. Where, therefore, the map is
drawn to scale and clearly demarcates the boundary it is not permissible to
ignore it and reconstruct the boundary with reference to the revenue records.
Darapali Sadagar v. jajir Ahmad, (1923)
I.L.R. 50 Cal. 394, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 52 of 1957.
Appeal from the judgment and decree dated
April 22, of 1953, of the Patna High Court in Appeal from Original Decree No.
162 of 1946.
K.N. Bhattacharya and P. K. Chatterjee, for
N.C. Chatterjee, A. V. Viswanatha Sastri, R.
S. Chatterji and D. N. Mukherjee, for respondents Nos. 2 to 6.
1961. March 22. The Judgment of the Court was
delivered by SUBBA RAO, J.-This appeal by certificate granted is directed
against the judgment of the High Court of Judicature at Patna dated April 23,
1953, confirming that of the Subordinate Judge, Dhanbad, dated November 30,
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, 1,894, 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 494 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 bad 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 M. Mathews on October 11,
1901. Walji Kheta represented the defendants. By diverse transfers, the
interest of Samanata 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 those allegations, they asked for the
(a)That the intermediate boundary line
between the plaintiffs' coal-land and the defendants' coal-land be ascertained
(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 plaintiffs'
coal-land and cutting and removing coal there from.
(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 plaintiffs against
The defendants denied that they had
encroached upon the plaintiff-,' coal-land and stated that the suit was barred
by limitation. They further pleaded that the 495 plaintiffs would not be
entitled to any damages. The learned Subordinate Judge held that the defendant
had encroached upon the plaintiff' coal-land, that the suit was not barred by
limitations 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.
The first question that arises for
consideration is whether the defendants had encroached Upon the plaintiffs'
coalland. The answer to this question depends upon the correct, delineation of
the boundary line between the 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 respondents'
Learned counsel for the appellant contends
that the said boundary should be fixed solely with reference to the boundaries
given in the lease of 1894, whereas learned counsel for the respondents
contends that no plan has been annexed to the said lease and, therefore, the
boundary could more satisfactorily and definitely be fixed with reference to
the plans annexed to the subsequent lease deeds executed in favour of the
successors-in-interest of the appellant and the respondents. To appreciate the
rival contentions it is necessary to consider the various lease deeds in some
On August 2, 1894, Raja Jaimangal Singh
executed the lease deed (Ex. 1) in respect of 300 bighas in favour of the
respondents' predecessor-in-interest. In that lease deed the northern boundary
is described to be the remaining portion of mauza Kujama and the western
boundary is described as Chatkari Jorh. The foot note to the lease reads,
"measuring 1101 feet in length running north and south by the side of the
said Chatkari Jorh and area being 300 bighas by such measurement". No plan
was annexed to this lease deed. On June 15, 1900, Jugal Kishore Lal, the
predecessor-in-interest of the appellant, had obtained a lease (Ex. C) of 400
bighas 496 from Raja Durga Prasad Singh, the son of the previous Raja.
The southern boundary of this leasehold is given
as the northern boundary limit of the leasehold land of Girish Chandra Samanta
and others and the western boundary is shown as the eastern boundary of
Chatkari Jorh as per the map annexed. This lease deed clearly shows that the
southern boundary of this plot is conterminous with the northern boundary of
the leasehold land in favour of Samanta. It may also be noticed at this stage
that the map annexed to this lease deed has not been filed by the appellants.
It appears that Samanta purchased the interest of Banerji in the leasehold of
1894 and thereafter at the request of Samanta, on November 23, 1900, Durga
Prasad Singh gave a fresh lease of the same holding to Samanta and incorporated
a map in that lease, i.e., Ex. 3(b). There, the northern boundary of the
leasehold is described as the leasehold of Rajkumar Jugal Kishore Lal Singh
Bahadur. The plan, Ex. 3(b), annexed to this lease deed shows the boundary line
between the two leaseholds. The said plan is drawn to scale and the boundary
line is drawn between point A marked in the plan and point B marked therein. As
the plan is a part of the lease deed, it is clear from the plan that the
northern boundary of the leasehold of Samanta is the said line. On June 10,
1901, Jugal Kishore Lal, that is, the predecessorin-interest of the appellant
demised a plot of 96 bighas carved out from his leasehold to Mathews under a
deed Ex. C(1). Mathews in turn demised under Ex. D the said land of 96 bighas
to Walji Khetan representing the appellant. In both these documents the
southern boundary is shown as the northern boundary of the leasehold land of
Samanta. One interesting feature 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 appellant's and that
of the respondents' is the line between 497 A and B shown 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 appellant's
contention. From the aforesaid documentary evidence we hold, agreeing with the
courts below, that the southern boundary of the appellant's holding, which is
conterminous with the northern boundary of the respondents' holding, is the
line between points A and B shown in Ex. 3(b).
The next question addressed by the courts
below is how to ascertain the point A. The argument of learned counsel for the
appellant is that the map translated into words indicates that the correct
boundary should be a line drawn from the true meeting point of the four
villages Pandebera, Jharia Khas, Lodhna and Kujama at a bearing of 82.15',
whereas the contention of the respondents is that the line actually drawn on
the lease map correctly lays down the northern boundary of the respondents'
It is settled law that a map referred to in a
lease should be treated as incorporated in the lease and as forming part of the
document: see Darapali Sadagar v. Najir Ahamed (1).
As in this case the map is drawn to scale and
incorporated in the lease deed, it is not permissible to ignore the starting
point of the boundary line and adopt instead any scientific point based on
survey. The Commissioner appointed by the court tested the position of the six
trijunction pillars shown in the map of lease dated November 23, 1900, and
found that two of the trijunction pillars were in their correct positions. On
the basis of these two trijunction pillars, the Commissioner relaid, by the
process of superimposition, the northern boundary line of the leasehold property,
The point A in the map so laid does not tally with the point where the
aforesaid four villages actually meet. He pointed out that the correct
(1)(1923) I.L.R50 Cal39463 498 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 trijunction
pillar. But learned counsel for the appellant contends that according to Ex. 3
the western boundary should be according to the revenue plan and, therefore,
point A should be fixed at a distance of 1680 feet from the trijunction pillar,
as that is the distance according to the revenue plan. But a perusal of Ex. I
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
injunction 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 to scale.
To summarize: the question is whether the
disputed extent is part of the respondents' holding or that of the appellant's
holding. The map, 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 falls within the boundary of the respondents'
holding. The lease of the appellant's predecessor, i.e., Ex. C, also refers to
a map, but the appellant withheld it. In the sub-leases 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.
It is well settled that a map referred to in
a lease should be treated as incorporated in the lease and as 499 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 the finding.
The next question is whether the suit was
barred by limitation. The encroachment by the appellant on the respondents'
colliery and the removal of coal there from are alleged to have taken place in
or about the year 1932. The respondents in the plaint averred that they came to
know of the said encroachment and removal of coal by the appellant after they received
the letter dated August 18, 1941, from the Inspector of Mines and before that
they had absolutely no knowledge or information whatsoever regarding thereto.
The appellant denied the said allegation and
stated that the respondents all along knew and had been aware that the portion
of coal-land in question belonged to and was the property of the appellant. In
particular the appellant alleged that the respondents must have the knowledge
of it since 1932 when there was a survey by the Department of Mines. On the
said pleadings issue 3 was framed which reads, "Is the suit barred by
limitation?" The learned Subordinate Judge found, on the evidence, that
the proceedings in 1932 had nothing to do with the delineation of the boundary
line between the two holdings. He held that Art. 48 of the Limitation Act
applied to the suit and that the appellant had failed to prove that the
respondents had knowledge of the sinking of the quarries and pits in the
encroached land. On appeal the High Court accepted the finding. Though the 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
There are, therefore, concurrent findings of
fact on the 500 question of knowledge. But learned counsel for the appellant
contended that the finding is vitiated by the burden of proof having been
wrongly thrown on the appellant.
This submission 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 the respondents.
It is common case that art. 48 of the
Limitation Act governs the period of limitation in respect of the present suit.
Period Time from Description of suit. of which period limitation begins to run.
For specific moveable When the per property lost, or son having acquired by
theft, or the right to dishonest misapprothe possespriation or conver Three
sion of the sion, or for com years. property first pensation for wronglearns in
ful taking or detain whose possesing the same. sion it is.
The article says that a suit for recovery of specific movable property acquired
by conversion or for compensation for wrongful taking or detaining of the suit
property should be filed within three years from the date when the person
having the right to the possession of the property first learns in whose
possession it is. The question is, on whom the burden to prove the said
knowledge lies? The answer will be clear if the article is read as follows: A
person having the right to the possession of a property wrongfully taken from
him by another can file a suit to recover the said specific moveable property
or for compensation therefore within three years from the date when lie first
learns in whose possession it is. Obviously where a person has a right to sue
within three years from the date of his coming to know of a, certain fact, it
is for him to prove that he had the knowledge of the said fact on a particular
date, for 501 the said fact would be within his peculiar knowledge. That apart,
s. 3 of the Limitation Act makes it obligatory on a court to dismiss a suit
barred by limitation, although limitation has not been set up as a defence,
indicating thereby that it is the duty of a plaintiff to establish, at any rate
prima facie, that the suit is within time. It is the obligation of the
plaintiff to satisfy the court that his action is not barred by lapse of time:
see Lalchand Marwari v. Mahanth Rampur Gir (1) and Rajah Sahib Perhlad Sein v.
Maharajah Rajender Kishore Sing (2) . Looking from a different perspective, we
arrive at the same result. Under the Evidence Act there is an essential distinction
between the phrase "burden of proof" as a matter of law and pleading
and as a matter of adducing evidence. Under s. 101 of the Evidence Act, the
burden in the former sense is upon the party who comes to court to get a
decision on the existence of certain facts which he asserts. That burden is
constant throughout the trial; but the burden to prove in the sense of adducing
evidence shifts from time to time having regard to the evidence adduced by one
party or the other or the presumption of fact or law raised in favour of one or
the other. In the present case the burden of proof in the former sense is
certainly on the respondents. But the question is whether they have adduced
evidence which had the effect of shifting the onus of proof to the appellant.
On behalf of the respondents, their Colliery Manager was examined as P. W. 2.
He stated in his evidence that the appellant had encroached upon the South
Kujamal Colliery in Seam Nos. 10, 11 and 12 and another special seam, known as
4 feet seam and that in August, 1941, be came to know about the encroachment
for the first time when the Mines Department forwarded a plan of the joint
workings of the two collieries of the parties. He also stated that he had no
knowledge of the encroachment before. In the crossexamination, two suggestions
were made to him, namely, that in 1932 there was a survey of the plaintiffs'
and defendants' coal-land by the Mines Department and that Seam Nos. 11 and 12
were (1) (1925) I.L.R. 5 Pat. 312.
(2) (1869) 12 M.I.A. 292.
502 worked by the appellant by open quarry
system. He denied that he had any knowledge of the said two facts. The evidence
of this witness has been accepted by the learned Subordinate Judge, and the
High Court also accepted his evidence, though in its view it was not very
This evidence, therefore, prima facie, proves
that the respondents had knowledge of the encroachment only in 1941.
Let us now consider some of the decisions
cited at the Bar.
A division beach of the Patna High Court in
Sundarji Shivji v. Secretary of State for India (1) held that "when a
defendant in an action based on tort seeks to show that the suit is not
maintainable by reason of the expiry of the statutory period of limitation, it
is upon him to prove the necessary facts". There the suit was for
conversion of property, and the learned Judges applied art. 48 of the
Limitation Act to the said suit. After noticing the words in the last column of
the article, the learned Judges proceeded to observe thus:
" The starting date of limitation in the
case of conversion is the date when the person who has the right to possession
first learns of the act of conversion." Adverting to the burden of proof,
the learned Judges observed:
"There is nothing in the pleadings which
would show precisely at what period tile plaintiff or the plaintiff's agent,
which is the same thing, became aware of the sale and its wrongfulness, that is
to say, became aware of the fact of conversion. The defendant was unable to
provide us with any materials to fix that date and therefore his plea of
limitation fails altogether, because he is unable to show a date outside the
period of three years which would entitle him to succeed." With great
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 (1) (1934) I.L.R. 13 Pat, 752, 760.
503 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 defendant's 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. A division
bench of the Calcutta High Court in Kalyani Prasad Singh v. Borrea Coal Co.
Ltd. (1) did not accept the view of the Patna High Court, but followed that of
the Bombay High Court in the Bank of Bombay v. Fazulbhoy Ebrahim (2). In the
context of the application of art. 48 of the Limitation Act, the learned Judges
of the Calcutta High Court observed thus:
"The burden of proof rests upon the
party who substantially asserts the affirmative of the issue............ We are
of opinion that the onus is upon the plaintiff in these suits to prove that the
knowledge of his father wag within three years of the suit." In Talyarkhan
v. Gangadas (3), Rangnekar, J., formulated the legal position thus:
"The onus is on the plaintiff to prove
that he first learnt within three years of the suit that the property which he
is seeking to recover was in the possession of the defendant. In other words,
he has to prove that he obtained the knowledge of the defendant's possession of
the property within three years of the suit, and that is all. If he proves
this, then to succeed in the plea of limitation the defendant has to prove that
the fact that the property was in his possession became known to the plaintiff
more than three years prior to the suit." We accept the said observations
as representing the correct legal position on the subject.
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 (1) A.I.R. 1946 Cal. 123,127(2) (1922) 24 Bom.
L.R. 513-(3) (1935) I.L.R. 60 Bom. 848, 860.
504 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 the 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 Commissioner's 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 appellant's encroachment of their coal mines only in the
year 1941 which was within three years of the date of the filing of the suit.
The only other outstanding question that
remains for consideration is that covered by Issue No. 7. In paragraph 11 of
the plaint, the plaintiffs allege that under the Indian Mines Act and the Rules
and Regulations made thereunder the plaintiffs are bound to keep a barrier of
25 feet to the south of the defendant's working and, therefore, the coal that
is still left in the encroached area is not by any means accessible to the
plaintiffs and being thus wholly unworkable is entirely lost to them for ever.
In the written statement the defendants did not deny the fact that the coal
still left in the encroached area was lost to the plaintiffs, but only stated
that it was purely a question of statutory obligation on the part of the plain.
tiffs with which the Defendant had nothing to do. The learned Subordinate Judge
accepted the case of the plaintiffs and held that the coal that was left in the
encroached area was entirely lost to them by being rendered unworkable. The
High Court accepted the finding.
Learned counsel for the appellant contends
that under the Rules the respondents could request the mining authorities to
exempt them from the operation of rule 76 of the Indian Coal Mines Regulation,
1946, and if exemption was granted, they could remove the coal left by the
appellant in the encroached area. This possibility 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 to this
No other point was raised. The appeal fails
and is dismissed with costs.