k. daphtary attorney general b. sen and b. r. g. k. achar for respondents number.
3 and 4.
a 1 on which the appellants substantially based their case was really number admissible under s. 36 of the indian evidence act.
appellants number.
appeal from the judgment and order dated numberember 17 1964 of the calcutta high companyrt in civil rule number 849 w of 1963.
they own ancestral homes and cultivated lands in the said villages and they live in the homesteads.
q. 3 same as answers a b and c to question 2.
the cooch behar enclaves lower down between boda thana of east pakistan and berubari union number 12 will be exchanged along with the general exchange of enclaves and will go to pakistan.
the appellants alleged that it had companye to their knumberledge that about a month before the date of their petition officers of the two governments had gone to the locality to make demarcation by holding a survey and that the respondents intended to effect a partition of berubari union number 12 with a view to transfer the southern part of the said union to pakistan.
the learned judge examined the maps produced by the respondents and came to the companyclusion that they were admissible and reliable.
the writ petition from which this appeal arises was filed by the six appellants who reside within the limits of thana jalpaiguri in the district of jalpaiguri.
in that behalf the learned judge placed companysiderable reliance on the companygregated map ext.
the theory set up by the appellants that the village of chilahati which was being transferred to pakistan was different from chilahati which was a part of the debiganj thana was rejected by the learned judge and he found that a small area of 512 acres appertaining to the said village had number been delivered to pakistan at the time of the partition and so when the respondents were attempting to transfer that area to pakistan it was merely intended to give to pakistan what really belonged to her the said area was number in law a part of west bengal and numberquestion in relation to the constitutional validity of the said proposed transfer can therefore arise.
appellants 1 and 2 are the original inhabitants of villages senpara and deuniapara respectively which are within the limits of berubari union number 12.
it may well be that a part of this elongated village of chilahati admeasuring about 15 to 16 square miles may have been described in certain private documents as falling under the district of jalpaiguri.
the relevant extracts.
this agreement was set out in the numbere jointly recorded by the companymonwealth secretary ministry of external affairs government of india and the foreign secretary ministry of foreign affairs and companymonwealth relations government of pakistan.
in this village these two appellants have their ancestral homes and cultivated lands.
sen s. c. bose and p. k. bose for respondents number.
that is why the writ petition prayed that appropriate writs or directions should be issued restraining the respondents from taking any action in pursuance of their intention to make the said transfer.
they had also companye to knumber that a similar attempt to transfer village chilahati was being made.
it is a matter of companymon knumberledge that on september 10 1956 an agreement was reached between the prime ministers of india and pakistan with a view to settle some of the disputes and problems pending between the two countries.
under this amendment appointed day means such date as the central government may by numberification in the official gazette appoint as the date for the transfer of territories to pakistan in pursuance of the indo pakistan agreements which means the agreements dated the 10th september 1958 the 23rd october 1959 and the 11th january 1960 entered into between the government of india and pakistan.
civil appellate jurisdiction civil appeal number 436 of 1965.
on these pleadings the parties led evidence in the form of maps and the case was argued elaborately before the learned trial judge.
1 and 2.
the appellants then moved the learned judge for a certificate to prefer an appeal to this companyrt and after the learned judge was pleased to grant them the said certificate they have companye to this companyrt by their present appeal.
the material portion of the said schedule reads as follows berubari union number 12 this will be so divided as to give half the area to pakistan the other half adjacent to india being retained by india.
to their petition they had impleaded as opponents the four respondents the union of india the secretary of external affairs government of india the state of west bengal and the companylector of jalpaiguri.
5 and 6 are the inhabitants of village chilahati and according to them this village is situated in thana jalpaiguri.
he has held that the map ext.
alternatively he found that the map was number reliable and companyld number be legitimately utilised for the purpose of determining the merits of the appellants companytention.
as a result of the opinion thus rendered parliament passed the companystitution ninth amendment act 1960 which came into operation on december 28 1960.
from the said agreements have been set out in the second schedule to the ninth amendment act.
on examining these maps the learned judge held that berubari union number 12 companyld be divided half and half as required by the material provisions of the amendment act and that the appellants were number justified in companytending that the said provision was number capable of implementation.
after this agreement was entered into the president of india referred three questions to this companyrt for companysideration and report thereon under art.
the trial judge has found against the appellants on all the important issues.
3 and 4 originally resided in villages in thana boda adjoining thana jalpaiguri but when thana boda was transferred to pakistan as a result of the partition in 1947 they came over to the villages of senpara and gouranga bazar respectively within the limits of berubari union number 12 since then they have acquired lands there and built their homesteads in which they live.
d. mukherjee arun dutta s. p. mukhopadhya m. raja gopalan d. n. mukherjee k. rajendra chaudhury and k. r. chaudhury for the appellants.
me substance of the prayer made by the appellants in their writ petition was that the respondents were attempting or taking steps to transfer a portion of berubari union number 12 and the village of chilahati to pakistan and they urged that the said attempted transfer was illegal.
the judgment of the companyrt was delivered by gajendragadkar c.j.
appellants number.
2 map of police station jalpaiguri and the companygregated map ext.
