LexK. S. NANJI AND COMPANY versus JATASHANKAR DOSSA AND OTHERS
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
March aa.
492
SUPREME COURT REPORTS
[1962]
K. S. NANJI AND COMPANY
v.
JATASHANKAR DOSSA AND OTHERS
(K. SuBBA RAO and RAGHUBAR DAYAL, JJ.)
Limitation-Encroachment on coal lands-Suit for damages on
ascertainment of boundary-Knowledge of encroachment-Burden of
proof-Indian Limitation Act, I908 (9 of Igo8), art. 48-Indian
Evidence Act, I872 (I of I872), ss. 3, IOI.
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 allega-
tion that the appellants had encroached npon 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
when 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 misplaced.
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 Sein v. Maharajah
Rajender Kishore Singh, (1869) 12 M.I.A. 292, referred to.
Under the Indian Evidence Act there is an essential distinc-
tion between burden of proof as a matter of law and pleading
and as a matter of adducing evidence and under s. 101 of the
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1 S.C.R. SUPREME COURT REPORTS
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 Stale for India, (r934) I.LR.
r3 Pat. 752, disapproved.
Kalyani Prasad Singh v. Borrea Coal Co. Ltd., A.LR. r946
Cal. r23, Bank of Bombay v. Fazulbhoy Ebrahim, (r922) 24 Born.
L.R. 5r3 and Talyarkhan v. Gangadas, (1935) I.LR. 60 Born.
848, approved.
H <Id, 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. J ajir Ahmad, (1923) I.LR. 50 Cal. 394,
referred to .
CIVIL APPELLATE JuR1snw·rrnN: 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 appel-
lants.
N. C. Chatterjee, A. V. Viswanatha Sastri, R. S. Chat-
terji and D. N. Mukherjee, for respondents Nos. 2
to 6. '
1961.
March 22. Tho Judgment of the Court was
delivered by
!{. S. Nanji
& Cotnpany
v.
] atashankar
nossa &. Olhet-s
SUBBA RAO, J.-This appeal by .certificate granted Subba Rao J.
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, 1946.
The plaintiffs and the defendant are adjoining
colliery owners at Kujama. The plaintiffs' land lies
immediately to the soutExcerpt shown. Read the full judgment & AI analysis in Lexace.