कल्पान्तरे विश्वासटिप्पन्यः

CHAPTER XXII

SĪMAVIVĀDA ( boundary disputes ).

This is called kṣetra javivāda 897 (disputes relating to fields ) by Nārada XIV. 1, who defines it as ’ dispute with regard to land in which questions about dikes or embankments, the boundaries of fields, ploughed land and fallow land have to be decided.’ Nārada’s idea appears to be that the word ‘simavivāda’ in Manu is only illustrative and is a compendious way of mentioning disputes about land in general. According to Kāt. (732) there are six causes 89 of land disputes viz. claiming more land, claim that a person is entitled to less than he possesses, claim to a share, denial of a share, seizing possession when previously there was none, boundary. In all these cases boundaries have directly or indirectly to be settled and there fore all these are included under the topic of simāvivāda. A boundary dispute may relate to the boundaries of a distriot (janapada ), a village, a field and a house. Boundaries, acc. to Nār., may be of five kinds.899 They are described as follows: dvhanni is what is indicated by trees which are like a flag staff. Manu (VII. 246-247) prescribes that trees such as asvattha, the silk cotton, śāla, tāla (palmyra palm ), that have milky juice (like udumbara ) should be planted to indicate boundaries and also bamboo clumps, bushes, reeds &c. A matsyini (lit. having fish) boundary is provided by rivers flowing naturally and full of fish and tortoises or by tanks and reservoirs of water (Manu VIII. 248). A naidhāni boundary is one indicated by concealed signs (just as nidhāna i. e. treasure is concealed in the earth), such as pots filled with chaff, coal, bricks, bones and similar things that the earth does not corrode

Anarcautagarrafamatio n na itigare: F: TTT XIV. 1. . r. p. 201 takes me TEST as one word, while st. 4. p. 353 bolds kodara and maryada separate. Pargat Mp4 , Herita: 1 7. 4. p. 353. - 898. आधिक्प म्यूनता चांशे अस्तिनास्तित्वमेव च । अभोगक्तिः सीमा चषदभू. more ! #. 732 q. by Fam. on . II. 150, n. t. p. 201, 37 p. 759, P. 1. p. 353. Vide the fact. and . 9. for explanations.
भासिनी मस्यिमी र मैधानी भयरजिता राजशासननीता चसीमा पाविधा 7 # ou q. by FANT. OD 07, H. 150. .

III)

Five kinds of boundaries

503

and are buried inside the earth. Manu (VIII. 250-251 ) enume rates those objects that should be buried in the earth, which would serve to indicate the boundaries of a village or field and which are therefore called concealed (upacchanna) by him. A blayavarjitā (free from .danger) boundary is settled by the agreement of the parties. The fifth kind is the one that is laid down by order of the king. Br. (S. B. E. 33 p. 351 verse 2) prescribes 900 that at the time of founding a village definite boundaries should be erected or constructed by means of visible or patent (prakāśı) and concealed (upāmāu or upacchanna ) signs and the Sm. C. II. 228 explains that a row of big stones should be employed to indicate the boundary. Bṛhaspati (S. B. E. vol. 33 p. 351 verses 3-7) states what patent and concealed boundary marks should be and requires elderly persons to point them out to youths and children who in their turn when old are to point out the boundaries to other youths and in this way traditional knowledge of boundaries may be kept up. Manu (VIIL 252-253) states that in disputes boundaries should be settled in accordance with the visible and concealed signs des cribed above, by reliance on long former enjoyment and by the constant flow of water and that if there be doubt even after observing the signs then the dispute has to be decided on the evi. dence of witnesses. Witnesses could either depose to the marks of boundaries or to the boundaries themselves. Those who could not point out the marks but were to define the boundaries themselves were to follow a certain procedure. Manu VIII. 254 states that the witnesses should be asked about the marks of boundaries in the presence of the litigating parties and groups (or faniilies) of the villagers. The witnesses on being asked were to trace, point out and settle the boundary unani mously, being clad in red garments, wearing red chaplets and being exhorted to depose truly by their spiritual merit 90 and carrying clods of earth on their heads, by reference to mounds or depressions, coals, bones and chaff (buried underground,

निवेशकाले कम्पः सीमावग्यविनिश्चयः। प्रकाशोपविष लक्षितः संशया 4U: U TE. 4. by rare. II p. 227, which says: STATES na afara स्थूलाढका प्रकाशसलिकोपेतः सीमासम्धी स्थापनीय इति।
On Urd: moet , R. C. p. 211 remarks: yut STEHT stort भवन्ति यदि मिथ्या पदाम इतिवादिता इत्यर्थः; सीमा विवाद प्रामपोरभयोः सामन्ता: पत्र मामी वशमामीमा सेभिः स्थावरी कृत्रिमैया कुर्याद । कर्पतगोपालबाबकाः पूर्षक्तिका वा, अवाणा सेनामभिशाहप एकोपा निर्विय सीमासेतून विपरीतोषाः सीमानं भवेयुः। arafare FIHATOTTEN: : i sur III. 9.

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in a vessel ), embankments, anthills, platforms of stones or bricks (Manu VIII. 255, 256, Yaj. II. 151, Nar. XIV. 4-6). Vas. 16. 13, Kaut. III 9, Yaj. II. 150, Manu VIII. 258,260, Nar. (XIV.2-3) prescribe that on failure of witnesses of the adjoining villages, neighbours (samanta),92 old men, cowherds husbandmen who plough the fields near the one in dispute, hunters, fowlers, fishermen, snake catchers and foresters should settle the disputed boundary in the presence of the king. The

Mit. on Yaj.03 II. 153 quotes Kat. (743-745, 51) to show that witnesses were divided into sūmanta, maula, vrddha and uddhrta, each preceding group being superior to the succeeding. The Mit. further says that the neighbours as witnesses are to be arranged in the form of the layers of the petals of a lotus viz. the nearest ones ( saṛsaktaka ) are those most preferred, ( but if this group has faults ) then a second but a more removed group and then a third group still more remote may be examined. Saṅkha-Likhita and Vas.904 16.13-15 prescribe that in boundary disputes the decision depends on neighbours, in the case of conflict of witnesses on documents and then on the old men in the town or village and the guilds. Yaj. II. 152 and Manu VIII 258 require that the neighbours who are to settle the boundary should be four, eight or ten ( even in number) and inhabitants of the same village (if possible), Br. (S. B.E. 33 p. 352 Verse 14 ) requires that the witnesses 905 should know the source of title (to the disputed land), the measurement (in nivartanas, dandas &c.), the length of enjoyment or possession, the names of persons (in possession) and the characteristic geography or lie of the land. The general rule was (as stated by Nar. XIV.9)

.902. समन्तालया सामन्ताः। चता दिखनन्तरमामादपस्ते च प्रतिसीम व्यव स्थिता:ग्रामो ग्रामस्य सामन्तः क्षेत्रं क्षेत्रस्य कीर्तितम् । गृहं गृहस्प निर्दिवं समन्तात् परि रस्य हि ॥ इति कास्पायनवचनात् । यामादिशग्देन तत्स्थाः पुरुषा लक्ष्यन्ते । मिता. on या. II. 151.

तेषामभाषे सामन्तमौलाबोतादयः । स्थावरे पदमकारपि कार्या नात्र विधा. रणा । कारया. 737, q. by मिता. on या. II. 152, वि. र. 206.
ग्रहक्षेत्रपिरोधे सामन्तप्रत्ययाः । सामन्तविरोधे लेख्यत्ययः । प्रत्यभिलेख्यविरोधे मामनगरपणीप्रत्यया ॥ बसिष्ठ 16. 13-15; गृहक्षेत्रयोविरोधे सामन्तमत्ययः । सामन्त विरोधे अभिलेखपप्रत्ययः अभिलेल्यविरोधे मामनगरपणिमत्या मामनगरपदणिविरोधे दशवर्षसमन्यत्र राजविप्रस्थात् । शहलिखित q. in वि… p. 208. स्वार्थसिद्धौ प्रदेव सामानर्धगौरवात् । तत्संसलैस्तु: कर्तव्य उबारो मात्र संशयः । संसक्तसक्तदोहतसंसक्ताः प्रकीर्तिताः पर्वग्या न खात राज्ञा धर्म निजामता।कास्था. q. by मिता. on या II. 152. . 905. आग प्रमाण भोगकाल नाम -। भूभागलक्षणं चैव ये बिदुस्तान साक्षिया :. by मिता. on था, II. 152, परा. मा. III. p. 392, ज्य. म. p. 355. Some works read भोग काल . . . . .

HI)

A single witness not to settle boundary

505

that a single witness however confident he might be (or how over reliable ) should not take upon himself to point out and settle the boundary, since this ( boundary ) dispute being a very important ( difficult ) matter, its decision should rest with many, The Mit. ( on Yāj. II. 152 ), explains that this prohibition holds good only if the single witness is one not accepted by both sides as reliable. But Nār. ( XIV. 10 ) and Bļ. (S. B. E. 906 33 p. 352 verse 11 ) hold that where a single witness accepted by both sides has to settle the boundary (in the absence of more witnesses and in the absence of reliable patent or concealed signs ) he should do so after placing a clod of earth on his head, after being dressed in red robes and wearing red flowers and after observing a fast. If it was a śūdra who was to trace or lay down a boundary Viśvarūpa 907 on Yāj. II. 156 quotes a prose passage of Brhaspati that he was to be docked in red pieces of cloth, his face was to be smeared with ashes from a cemetery, a mark was to be made on his chest with five fingers dipped in the blood of a goat and the entrails of the sacrificed goat were to be tied round his neck and he was to hold a clod of earth in the right hand. All this was to impress upon him the gravity of the work and the necessity of doing his best impartially. If no knowing witness or no patent or concealed signs are available the king has himself to settle the boundary between the two villages at his own discretion(Yaj. II. 153, Nār. XIV.11, Manu VIII. 265). He may divide the land between the two villages equally and construct new marks of boundaries, but if the disputed land will be of greater benefit to one village than to the other the king may assign the whole of the disputed land to the former. Manu VIII. 245 prescribes that when there is a boundary dispute between two villages the king should decide it in the month of Jyestha when the embankment (marks) become quite clear ( owing to water being dried up in summer). The decision made by the witnesses or neighbours became final only after the lapse of three weeks if no calamity (from act

शादृचिबिमामाधुरेकोप्युभयसमतः । रहमाल्याम्बरधरो भवमादाय मूर्धनि । 49: Fra: pirate fout: 1 . q. by far. II. p. 231, 971. T. III. p, 393, व्य. प्र. p. 359. Ms. of मदनरस्न reads सीमान्तम् .
ससाणां तु पथाह हस्पतिः । यदि सूमो नेता स्यान्वेनालारणालारण TUYRAT 5 Parescurora gait: sirotinct T FM ya ferramar TOT प्रतिब्य सम्येन पाणिना सीमालोट मूरिन धारयविति । एतकर्पटपसनाविग्योलकारः ।

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of God or king) befell the witnesses (Kat. 751).908 Manu prescribes (VIII. 261) that the boundary settled by witnesses should be fixed by the king (or recorded in a document containing the names of witnesses ). An ancient instance of the fixing of boundaries by two foudatory chiefs is recorded in the Bhumara stone Pillar inscription of the Parivrājaka Mahāraja Hastin and Mahārāja Sarvanātha, who erected a pillar at Ambloda to show the boundary between their territories about 510 A. D. (vide Fleet’s Gupta Inscriptions No. 24 p, 110). Vide also E. I. vol. 24 pp. 32-34 for inscriptional evidence about the carrying out of all the details laid down in dharmaśāstra works on the settlement of boundaries. Manu VIII, 263, Yaj. II. 153, Nar. XIV. 7 prescribe the middle amer cement for each one of the sāmantas that falsely settle the boundaries, while Manu (VIII. 257) and Nar. XIV.8 prescribe the first amercement only for other witnesses such as members of corporations and elderly villagers. If through friendship, greed or fear the witnesses who know the facts do not come forward to settle the boundary they are each to be fined in the highest amercement (Kat.909 750).

Br. (S. B.E. 33 p. 353 verses 19-21) lays down certain interesting rules about alluvion and diluvion. Where a river is the boundary between two villages and the river carries away soil from one village and attaches it to another, the accretion belongs to the village to which it becomes attached, but this is so when the soil carried away has no crops growing on it; if however soil with growing crops is separated from a village and joined to another by a river in flood, the former owner can reap only the crops and the land will belong to the village or field to which it has become attached 910.

सीमाचक्रमणे कोशे पावस्पर्श तथैव च । विपक्षपक्षसलाह पराजिकामिप्यते । काल्या. 751 q. by मिता. on या. II. 152. V. P. (p. 359) adds ‘यथासंख्यमिति शेषः .’
बहूनां तु गृहीतानां न सर्वे निर्णय यदि । कुर्युर्भयाचा लोभादा वाप्यास्तूत्तम साहसम् ॥ कात्या. 750 q. by मिता. on या. II. 152. अपराके P. 763.
ग्रामयोरुभयोर्यत्र मर्यादा कल्पिता नदी । कुरुते वानहरणं भाग्याभाग्यवशान्त. णाम् । एकत्र कूलपात तु भूमेरम्य संस्थितिम् । नदीतीरे प्रकुरतेतस्प तो न विचालयेत् । क्षेत्र सशस्यालय भूमिश्विना यदा भवेत् । मदीस्रोतःमवाहेण पूर्षस्वामी लभेत साम् । पह. १. by स्थतिच. II. p. 234, परा. मा. III. pp. 398, 399, वि.र. 217, ग्य. प. p. 362; the latter explains: तस्य नवीवशात्मासभूमिकरप सा पानी मिन विचालयेत् माल्यथा कुर्यात् पूवामी नापछियादित्यर्थः । एतवदसशस्वीर विषयम् । उततीरविषये पुनः स एप-क्षेत्र। तो सशस्या निम् । उसशस्पफललाभपर्यन्तमेतत् । तत्फललाभानन्तरं तुम पूर्वस्वामी तो भूमि लभेत इत्यवमन्तग्यम् ।. The वि… p. 217 holds a different view: ‘पत्र मदी क्षेषादिक समारण्य पाति तत्र पूर्वग्रामस्पैव सा भूमिरित्यर्थः ।।

Decision of boundaries of fields &c.

507

Manu VIII. 262, Yaj. II. 154, Nār. XIV. 12, Kāt. 749 pres cribe that the decision of disputes about the boundaries of fields, wells, tanks, groves and parks, palaces, houses, cottages, temples and channels carrying rain water is to be similarly arrived at by the testimony of witnesses ( sāmantas and others).

Several rules are laid down by Nār., Bṛ. and Kat. about easements and water-courses.

Br. (S. B. E. 33 p. 354 verse 24) prescribes that no 911 inter ference should be caused to the manner of the enjoyment of houses ( as regards doors, compounds &c.), to the enjoyment of water and markets in the way in which they had been enjoyed from the time the village or house was established or built. This means, acc. to the Sm. C. II. p. 234 and V. P. p. 363 that if a new mode of enjoyment is started in the case of these after the village was established or the house was built then inter ference may be allowed. Br. (8. B. E. 33 p. 354 verse 25) further says that anoient windows, 912 watercourses, balconies (pegs?), raised platforms on the borders of streets, waterspouts carrying rainwater from a square of houses (and cottages ) en joyed from former days should not be allowed to be interfered with, even if they might cause some inconvenience to the neigh bouring house. Kāt. (752-753) similarly provides ‘one should not interfere with the base of the wall, a drain (or waterspout), a balcony, window, watercourse and dwelling house of another. These are not to be added to one’s house after the first building of it (so as to cause obstruction or annoyance to another), one should not open a window 913 ( so as to command a view) in the interior of another’s house or open a spout (that will drain off

निवेशकालादारभ्य गृहवार्यापणादिकम् । येन यावयथा भुक्तं तस्य तम विद्याल. पेत् । वातायनं मणाली च तथा निहवेदिकाः (नि!ह!)। चतुःशालस्यन्दनिकाः प्राइनि PET ON TE. q. by 99 p. 764, war. II. p. 235, 54. 4. p. 363. ‘एवं निवेशनकाले कल्पितं गवाक्षादिकं पातिवेश्यानिष्टकार्यपि न केनचिण्चालनीयमिस्याह # qui fafae. II. p. 235; pret garanteret Pot unged for at गृहकोण (हयाणा!) इति स्मुलिचन्द्रिकायाम् । वेदिका रयादिप्रदेशसंस्कृतीतरा भूमिः। 19. 4. p. 363. These words are taken from the area.
Compare section 15 of the Easements Act (Act V of 1882) for the acquisition by prescription of easements of light and air for a building, of support or of right of way &c.

913, ‘One should not open & window &c.—This right of privacy is rocognized even now by the courts as enforceable in Gujerat. Vide Nathu bhai v. Chhaganlal 2 Bom, L, R. 454, Mansklal v. Mohanlal 22 Bom, L. R. 226.

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water) on to another’s house. One should construct places (pits) for depositing ordure, urine and filthy water, a fireplace and a pit at a distance of at least two cubits from the walls of other people (his neighbours ) and should not construct these very near to another’s house (vide also Bp. S. B. E. vol. 33 p. 354 verses 25-26).

Bș. (S. B. E. 33 p. 354 verse 27) defines a samsarana94 as the road by which men and beasts pass to and fro without let .or hindrance. Kat. (755) calls it catuspatha and defines rūja mūrga as the road by which people are allowed to pass at certain times (and not at all times). Several rules are prescribed by Kautilya and others for obviating nuisances on public roads or near private houses. Bļ. (S. B. E. 33 p. 354 Verse 28) and Kat. (756) provide that roads should not be obstructed by parking 95 carts and the like thereon, that no one should plant anything on a public road, that a man who puts obstruction on the public road, makes pits or plants trees or wilfully voids excrement thereon should be fined a māsaka, and one who does not give 916 precedence on the road to his guru, preceptor or the king should be fined. Manu IX. 282 prescribes the fine of two kārṣāpanas for voiding or dropping ordure on the public road in the absence of distress and requires the wrongdoer to clean the road, but Manu (IX. 283 ) makes an exception in the case of persons diseased, very old men, a pregnant woman and a child, who are not to be fined but only reproved for voiding ordure on the road. Vide Matsya 227. 175-76 for the same two verses. Kauṭ. II. 36917 pres cribes the fine of of a pana for throwing dust on a cart-road and 4 for obstructing it with mud and a fine double of these

aprure ga

afTIFT: agree Haraka ara .q. by

W p . 765, F . II. p. 235; : *° 0 # # : I HART FUTOTE Tare: 34 # #1647. 755 q. by T. II. p. 235, N. v. 221.

T **rantoom

outer

! T. G. by p. 765, T . II. p. 235; fil. T. p. 221 ascribes this verse 10 Rue and notes that afts and others ascribe it to a T स्किचिमोपहन्यात केनचित् । पूर्वाचार्यपाबीना मार्गादानात दयभान कापा. 756

q. by fit. t. p. 221.

For precedence on the road, vide H. of Dh. vol. II, pp. 146–147.
H an mereka se otarta rast presentant for: पुरवस्थाणेदकामहरुजरियषु पयोमरा शिव मूत्रेमा भेषज्यया. firrafarham II. 36.

Nuisance on public road or near building

509

for doing the same on a royal road; prescribes a fine of one, two, three or four paṇas respectively for voiding ordure on or near a holy place, or a place whence water is taken, or a temple or the king’s buildings and exempts from fine such persons as those mentioned in Manu IX. 283. Kāt. (758-759 ) provides 918 that he who defiles a tānk, a garden or holy water (or ghats ) by throwing filthy matter (ordure &c.) therein should be made to remove the filth and fined the first amercement and also one who pollutes by washing soiled clothes in holy and purifying sacred places (ghats &c.) established by great or saintly persong. Yāj. II. 155 prescribes the first, the highest and middling amercements respectively for making breaches in the boundary (between two or more fields ), for ploughing a field beyond the boundary of one’s field and for depriving a man of his field by intimidation and the like. Vide also Vispu Dh. S. V. 172 and Saṅkha-Likhita 919 who prescribe a fine of 1008 paṇas for transgressing ( the whole of) the boundary (of a field). Manu VIII. 264 ( = Matsya 227, 30) provides a fine of 200 papas for seizing another’s field, garden or house through inadver tance, but 500 for seizing any one of these by intimidation. Nār. XIV, 13-14 and Kāt, ( 760–761 ) state 920 that the fruits and flowers of those trees that grow on the boundary between two fields should be declared ( by the Judge ) as joint between the owners of the two fields and that if the branches of trees grow ing in one man’s field spread over another man’s field that man should be understood to be the owner of the trees and branches ( together with fruit &c.) in whose field the trees are born (have taken root). The first proposition implies that if one owner

amuraifa UTSAVT for at ut turen artean साहसम् । पसिद्धतीर्थानि स्थापितानि महात्मभिः । पुण्यानि पावनीयानि माधुयात् पूर्व

PREU 144. q. by 349 p. 765, F . II. 235, 74. 94. p. 365.

UT MUFTE STARE q. by lae. II. p. 236, 19.. P. 366; FAHRETA pusfrear g#: fiat formaat Trai Pengertian V. 172, which ferat. II. p. 236 explains as ’n rarterePHUR ASHF कर्षकमित्यर्थोऽध्ययसेयः । सीमाप्रदेशे पुनः कर्षणायकरणमेव पुनः सीमाकरणम् । तद्यथा भवति FUT TET wala ya: Wrat U UTTA: . The text in Mr. Gbarpure’s ed. is corrupt.
सीमामध्ये न जाताना दक्षाणां क्षेत्रयोईयोः । फलं पुष्पं च सामान्य क्षेत्रस्वामिपु निर्विोत् । अन्यक्षेत्र न जातानां शाखा यान्यसस्थिताः । स्वामिनं विजानीरापस्य क्षेत्र

rian TETT. 760-61 q. by HOT pp. 766-767, pras. II. p. 236, . . 223., TE XIV. 13-14 are almost the same, reading a feature

510

(Vok

alone takes all the fruits he is liable to be fined for taking half the fruits.

A setu (watercourse ) is said by Nār. (XIV. 18 ) to be of two kinds, viz. that which is dug ( kheya ) into the soil in order to drain off excessive water and that which is constructed (bandhya) as an embankment to prevent water from flowing away. Yaj. II. 156 and Nār. XIV. 17 provide that a setu made by the owner of one field in the neighbouring field should not be forbidden by the owner of that field, if the loss of soil it causes (to the latter ) is small as compared with the great benefit that it may confer. Nār. ( XIV. 20-21 ) and Yaj. II. 157 prescribe that one should make a dike or watercourse on an other’s land with the permission of that man or with the permis sion of the king as otherwise he cannot reap the benefit thereof. Kāt. (762-63) provides a similar rule about the repairs to a house or garden or tank made by a stranger without the owner’s or the king’s permission. It is stated by Nār. ( XIV. 23-25 ) that when the owner of a field is unable ( to cultivate it) or is dead or is not heard of, if a stranger cultivates the field without objection from any body, the stranger shall enjoy the produce of the field, that if the owner (or his son) returns while the field is being tilled by a stranger, he can get his field back on repayment to the stranger of all the money expended on making the land ( ready for crops ). If the owner is unable to return the expenses, the stranger may retain th of the produce every year for eight years giving 3th to the owner every year and should hand over the field to the owner when the 8th year arrives. Yāj. II. 158 and Vyāsa provide that if a person takes a field from the owner on rent for cultivation, but gives up the cultivation after slightly ploughing it and does not employ someone else to complete the cultivation, then he should be made to pay the produce that would have been recovered from the field if properly cultivated and also should be fined and the field may be taken from him and given to another tonantu

क्षेत्रं गृहीत्वा याकविनकुर्यालय कारयेत् । स्वामिने सशद वाप्यो राजे

FOT# q. by ft. f. p. 65, 8. 4. p. 368; Fatae. II. p. 238, 977. 1. III. p. 408 ascribe this to :