1. The subject-matter of the litigation which has given riseto this appeal consists of a tract of land described in the plaint as coveringabout 120 bighas but found subsequently on measurement to cover about 200bighas. The case for the Plaintiff is that the disputed land is comprised inMouzah Alilaipur whereas the case for the Defendants is that it is part oftheir property Bul Pabla. The Courts below have concurrently dismissed the suiton the ground that the Plaintiff has failed to establish his title as well aspossession within 12 years of the commencement of the suit. The decision of theDistrict Judge has been assailed before us on behalf of the Plaintiffsubstantially on two grounds, namely, first, that the question of title hasbeen erroneously decided by reason of the reception of evidence which isinadmissible in law, and, secondly, that the question of limitation has beenerroneously decided because the evidence has not been examined from the pointof view of the nature of the land.

2. In so far as the first branch of the contention of theAppellant is concerned, it may be stated at the outset that the Plaintiffrelied mainly on the thak map of 1856 whereas the Defendants relied upon themap prepared in 1865 under the supervision of the Deputy Collector, Babu BrahmoNath Sen. The Plaintiff contended before the District Judge that the map of1865 was not admissible in evidence against him 5 but this objection wasoverruled on the ground that the map on the face of it showed that it wasprepared in 1865 and was consequently admissible under sec. 90 of the IndianEvidence Act. In our opinion this position cannot possibly be maintained. Sec.90 of the Indian Evidence Act only shows that the map was prepared at the timeat which it purports to have been made by the officer whose signature it bears,but it does not establish the accuracy of the map. But in the Court below asalso in this Court it has been contended that the map is a public map, as washeld by their Lordships of the Judicial Committee in the case of Radhamoni Debiv. Collector of Khulna I. L. R. 27 Cal. 943 (1900) and by this Court in thecase of Sital Chandra Ghatak v. Mohendra Kumar Mitra (Reg. Appeals 37 and 57 of1907 by Woodroffe and Richardson, JJ., dated 12th July 1910. Unreported). Inanswer to this contention it has been argued on behalf of the Plaintiff thatthese judgments cannot be used against him for the purpose of establishing thatthe map is a public map the accuracy of which may be presumed under theprovisions of the Indian Evidence Act. In our opinion this position isincontestable. The question whether the map is a public document within themeaning of sec. 74 of the Indian Evidence Act is prima facie a question of factand the mere circumstance that the map in question was treated as a public mapin some earlier litigation to which the Plaintiff was not a party does not bindthe Plaintiff. It turns out, however, upon an examination of the proceedings inthe case of Radhamoni Debi v. Collector of Khulna I. L. R. 27 Cal. 943 (1900)that the map in question was not treated as a public map. It appears that atthe time of that litigation the surveyor, Mahim Chandra Bose, was dead andconsequently two persons of the names of Sital Chandra Mitra and MunshiMazhuruddin Mahomed who had been present at the time the map was prepared wereexamined to explain the circumstances of its preparation. It further appearsfrom a passage in the judgment of their Lordships of the Judicial Committeethat the map was not treated as a public map and it was expressly sated thatthe evidence of conduct of the parties made it clear that it was entitled to noless than the degree of authority which attaches to Government surveysgenerally. It has been explained to us that in the earlier litigation, the conductof the parties to which reference is made in the judgment of the JudicialCommittee consisted in the circumstance that the map was mentioned in a certainlease which was apparently binding upon the parties. In the case before us, themap is not mentioned in the lease. It is therefore impossible to hold that thedecision of the Judicial Committee in the case of Radhamoni Debi v. Collectorof Khulna I. L. R. 27 Cal. 943 (1900) and of this Court in Sital Chandra Ghatakv. Mohendra Kumar Mitra (Reg. Appeals 37 and 57 of 1907 by Woodroffe andRichardson, JJ., dated 12th July 1910. Unreported) proves conclusively againstthe Plaintiff that the map is a public map. On the other hand, it is fairlyclear that the map is a private document. It appears to have been prepared atthe instance of the Collector who was in charge of the Syedpur Trust Estatebecause he was dissatisfied with thak map of 1856. We have not been informedwhether any steps were taken for the correction of the thak map, in the mannerprovided for that purpose, by an appeal to the superior revenue authorities. Ifsuch proceedings had been taken the result would undoubtedly have beenindicated on the thak map itself. Consequently the true position appears to bethat we have on the one hand the thak map and on the other the map of 1865which was prepared at the instance of the Collector in his capacity as theholder of the Syedpur Trust Estate. Consequently the map must be treated as aprivate document; and if it is treated as a private document there can be noquestion that its accuracy has to be established, because, it has been laiddown by a series of decisions of this Court that sec. 83 of the Indian EvidenceAct has no application to maps prepared by an officer of Government while he isin charge of properties as a private proprietor. In support of this positionreference may be made to the decisions of this Court in the cases of JunmajoyMallik v. Dwarka Nath Mytee I. L. R. 5 Cal. 287 (1879), Ram Chunder Sao v.Bunseedhar Naik I. L. R. 9 Cal. 741 (1883) Kanta Prosad v. Jagat Chandra DuttI. L. R. 23 Cal. 335 (1895) and the observation in the case of DinomoniChowdhurani v. Brojo Mohini Chowdhurani I. L. R. 29 Cal. 187 (1901). Thecontrary view adopted in the case of Taruck. Nath Mookerjee v, Mohendra NathGhose (13 W. R. 56 (1870)) which was decided in 1870 before the Indian EvidenceAct was passed cannot in view of the later decisions be treated as good law.Consequently before the Defendants can be allowed to use the map against thePlaintiff, they must be called upon to establish its accuracy. But even if itsaccuracy is established other circumstances have to be taken into considerationwhich may affect its evidentiary value. The learned Vakil for the Appellant hascontended upon the authority of the case of Kerr v. Nuzzer Mahomed 2 W. R. 28P.O. (1864) and Kanta Prasad v. Jagat Chandra Dutt I. L. R. 23 Cal. 335 (1895)that a map prepared for one purpose cannot be used for a totally differentpurpose, a purpose wholly irrelevant to the subject of dispute in the earlierlitigation. The Courts below do not appear to have considered the evidentiaryvalue of the map from this point of view. It cannot be disputed as pointed outby this Court in the cases of Moni Roy v. Rajbunsee Koer 25 W. R. 393 (1876)and Ranajit Sinha v. Basanta Kumar Ghose 9 C. L. J. 597 (1908) that even thoughthe boundaries between two villages may have been demarcated as between twocontesting parties with regard to one portion of estate, if an attempt is madein a subsequent litigation between the same parties to use the map with regardto another portion of the boundaries, the matter requires careful scrutiny. Iftherefore this map is duly proved and is ultimately used as evidence againstthe Plaintiff, the Court must consider how far the boundaries in so far as thelands now in dispute are concerned, were in view when the map was prepared. Ifit is established that the portion of the boundary now in dispute was alsodirectly in dispute at the time when the map was prepared, the map would be ofconsiderable value ; otherwise its evidentiary value would be diminished. Thelearned Vakil for the Appellant has further contended that the map is notsigned either by the owners or the tenants of the adjoining lands and thatunless it is established that the map was prepared, if not with the assent, atleast with the knowledge of the proprietors of the neighbouring lands affectedby the demarcation, its evidentiary value would be very little. This contentionis supported by the cases of Omrita Lal Chowdhry v. Kalee Pershad Shaha 25 W.R. 179 (1876), The Collector of Rajshahye v. Doorga Soondaree Debia 2 W. R. 210(1865) and Nobo Coomar v. Gobind Chunder 9 C. L. R. 305 (1881). The mererecital on the face of the map that other persons had notice of the proceedingswould not by any means be conclusive specially in the absence of the signature,such as is usual on the maps, by the holders of the neighbouring land.Consequently if the map is used in evidence this circumstance also must be bornein mind. The learned Vakil for the Appellant has further contended that the mapof 1865 appears to be based on the chitta of 1234 and as that chitta itself wasprepared by guess, the evidentiary value of the map cannot exceed that of thechitta. The Courts below do not appear to have considered the matter from thispoint of view, which has obviously to be taken into consideration if the map isto be used in evidence against the Plaintiff. In answer to this contention ofthe Appellant, it has been argued by the learned Vakils for the Respondentsthat no objection ought to be allowed to be taken to the admissibility of themap as such objection was not taken in the Courts below. We are unable to holdthat objection was not raised to the reception of the map in evidence, althoughit is quite possible that the objection was not formulated with the precisionwith which it has been taken in this Court. No doubt, if objection has not beentaken to the admissibility of a map which would be admissible if certain requirementswere fulfilled, the objection cannot be allowed to be taken at a subsequentstage, as laid down in the cases of Girindra Chandra Ganguly v. Rajendra NathChatterjee 1 C. W. N. 531 (1897), Ganga Narain Choudhry v. Radhika Mohun Roy 21W. R. 115(1873) and Madhabi Sundari v. Gaganendra Nath Tagore 9 C. W.N. 111(1904). These cases, however, are clearly distinguishable ; and the substantialobjection which has been raised in this Court was taken undoubtedly before theDistrict Judge, if not also before the Court of first instance. It has furtherbeen contended by the learned Vakils for the Respondent that even if the map isnot admissible under sec. 83 of the Indian Evidence Act, it is admissible undersecs. 13 and 14 of the Act, as laid down by this Court in the case of JunmajoyMullik v. Dwarka Nath Mytee I. L. R. 5 Cal. 287 (1879). This argument, however,even if it is assumed to be correct, is of no assistance to the Respondents. Ifthe map is used in evidence under secs. 13 and 14 of the Indian Evidence Act,it is evidence merely of an assertion of the title which is now put forward bythe Defendants so far back as 1865; but the map has been used by the learnedDistrict Judge as showing clearly that the thak map is incorrect ; and for thatpurpose it is essential to establish that the map itself is correct.

3. It has finally been suggested by the learned Vakils forthe Respondents that the learned District Judge has given an independent reasonfor the rejection of the thak map and that consequently apart from the map of1865 the Plaintiff cannot possibly succeed. Our attention has been invited to asolitary passage in the judgment of the learned District Judge in which heobserves that thak maps go upon possession, but here the land was all jungle andthere was no visible physical possession. Now it may be conceded that, as waspointed in the case of Joytara Dassi v. Mahomed Mobarruk I. L. R. 8 Cal. 975(1882), the evidentiary value of thak maps would be affected by the conditionof the land at the time the survey was made. But obviously the thak map cannotbe ignored upon a general allegation that the land at the time was jungle. Itis conceivable that the land in dispute was not jungle at the time and wasquite capable of survey at the time. Consequently if the learned District Judgebased his judgment merely upon the observation upon which reliance is placed,it would be necessary to direct a further enquiry into the matter. It has beensuggested as a last resort by the learned Vakils for "the Respondent thatthe map was prepared at the instance of the common superior landlord of boththe parties and that consequently it may be used in evidence by either partyagainst the other. This contention does not appear to have been raised ineither of the Courts below and we have no evidence on the record to show thatthe title under which the Plaintiff claims was created subsequent to the surveyof 1865. It is obvious that if his title is antecedent to 1865, the map couldnot be used against him on the ground suggested. We must therefore hold uponthe first branch of the case for the Appellant that the decision of theDistrict Judge upon the question of title cannot be supported. In so far as thesecond branch of the case for the Appellant is concerned, reliance has beenplaced upon the decision of this Court in the case of Mirza Shamsher Bahadur v.Munshi Kunj Behari Lal 7 C. L. J. 414 : s c 12 C. W. N. 273 (1907). In ouropinion the decision of the District Judge upon the question of limitation alsocannot be supported. In the first place his decision upon the question ofpossession is inextricably mixed up with the decision of title which as we havesaid cannot be supported. In the second place, the learned District Judge doesnot appear to have considered the nature of the land. It is clear upon theevidence that up to at least 1874, the land was covered with jungle. It hasbeen stated to us that according to the evidence, even on the side of theDefendants themselves, portions of the land were brought under cultivationwithin 12 years of the commencement of the suit. Consequently the claim of thePlaintiff cannot be treated as barred by limitation in respect of such lands.It is further clear that if the thak map goes on possession, the evidence ofpossession must be considered from an entirely different point of view and inthe case of jungle lands possession prima facie is with the person whose titleis established. We are of opinion that the case must go back not merely for thedecision of the question of title but also for reconsideration of the questionof limitation. The result therefore is that this appeal is allowed, thedecision of the District Judge set aside and the case remanded to him forre-consideration. The Defendants will have opportunity to prove the map of 1865and the District Judge will for that purpose give necessary direction for thereception of evidence by the Court of first instance. The Plaintiff will haveopportunity to rebut any new evidence that may be adduced by the Defendants. Newevidence will not be admissible in so far as the question of possession isconcerned. The costs of this appeal will abide the result.

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Prya Nath Mazumdar vs. Mahendra Kumar Mitra and Ors.(17.02.1911 - CALHC)