TMI Blog1961 (3) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 following reliefs: (a)That the intermediate boundary line between the plaintiffs' coal-land and the defendants' coal-land be ascertained and fixed. (b)That the area ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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' leasehold. 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(1923) I.L.R- 50 Cal- 394. 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 mee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccepting 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 therefrom 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty 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 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 ((1925) I.L.R. 5 Pat. 312) and Rajah Sahib Perhlad Sein v. Maharajah Rajender Kishore Sing (1869) 12 M.I.A. 292 . 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rground 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 there under 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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