Chapter XXII. Simāvivāda (boundary disputes)

Volume III pp. 502–511

Chapter XXII. Simāvivāda (boundary disputes)

SĪMĀVIVĀDA (boundary disputes). This is called kṣetrajñavāda¹ (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 'sīmāvivāda' in Manu is only illustrative and is a compendious way of mentioning disputes about land in general According to Kāt (732) there are six causes² 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 sīmāvivāda A (janapada), a village, a field and a house. Boundaries, acc. to Nār., may be of five kindṣ³ They are described as follows: dhvajinī is what is indicated by trees which are like a flag- staff. Manu (VIII. 246-247) prescribes that trees such as aśvatthā, 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 matsyinī (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 nidhānī boundary is one indicated by concealed signs (just as nidhana 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 ##III ]

and are buried inside the earth Manu (VIII. 250-251) enumerate 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 hiṃ A bhayanuprta (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. B₁ (S. B. E 33 p 351 verse 2) prescribes³⁰⁰ that at the time of founding a village definite boundaries should be erected or constructed by means of visible or patent (prakāsa) and concealed (upāmśu 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 (VIII. 252-253) states that in disputes boundaries should be settled in accordance with the visible and concealed signs described 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 evidence of witnesseṣ Witnesses could either depose to the marks of boundaries or to the boundaries themselveṣ 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 families) of the villagers The witnesses on being asked were to trace, point out and settle the boundary unanimously, being clad in red garments, wearing red chaplets and carrying clods of earth on their heads, by reference to mounds or depressions, coals, bones and chaff (buried underground, in a vessel), embankments, anthills, platforms of stones or bricks (Manu VIII 255, 256, Yāj II. 151, Nār XIV 4-6) Vas 16 13, Kaut III. 9, Yāj II. 150, Manu VIII 258, 260, Nār (XIV 2-3) prescribe that on failure of witnesses of the adjoining villages, neighbours (sāmanta), ⁶ old men, cowherd-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 Yāj ⁷ II. 153 quotes Kāt (743-745, 51) to show that witnesses were divided into sāmanta, manula, vṛddha and vṛddhatya, 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 (saṃrakshaka) 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 Sankha-Likhita and Vaṣ ⁸ 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 guildṣ Yāj. 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 ⁹ should know the source of title (to the disputed land), the measurement (in nirmāņas, dandus &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 Nār XIV 9) that a single witness however confident he might be (or how- ever 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 Br. (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 Viśvarūpa¹¹ on Yāj. II. 156 quotes a prose passage of Bṛhaspati that he was to be decked 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 hanḍ 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 (Yāj. 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 Jyeṣṭha 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 of (cod or king) befell the witnesses ( Kāt 751).¹² 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 feudatory chiefs is recorded in the Bhumara stone Pillar inscription of the Parivrājaka Maharāja Hastin and Maharāja 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 boundarieṣ Manu VIII, 263, Yaj II. 153, Nāṛ. XIV 7 prescribe the middle amercement for each one of the sāmantas that falsely settle the boundaries, while Manu (VIII. 257) and Nāṛ XIV. 8 prescribe the first amercement only for other witnesses such as members of corporations and elderly villagerṣ 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.¹³ 750).

Br. (S. B. E. 33 p. 353 verses 19-21) lays down certain interesting rules about alluvion and diluvioṇ 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 attacheḍ¹⁴ Manu VIII. 262, Yaj. II. 154, Nār. XIV. 12, Kāt 749 prescribe 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 (सुमन्तुर and others)

Several rules are laid down by Nār., Br. and Kāt. about easements and water-courses

Br. (S. B. E. 33 p 354 verse 24) prescribes that no¹⁵ interference 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 Sṃ 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 interference may be alloweḍ Br. (S. B. E 33 p 354 verse 25) further says that ancient windows,¹⁶ 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 window¹⁷ (so as to command a view) in the interior of another's house or open a spout (that will drain off 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 Br S. B. E. vol 33 p. 354 verses 25-26).

Br. (S. B. E. 33 p. 354 verse 27) defines a samsaraṇa⁹¹⁴ as the road by which men and beasts pass to and fro without let or hindrance. Kāt. (755) calls it catuṣpatha and defines rājamārga as the road by which people are allowed to pass at certain times (and not at all times). Several rules are prescribed by Kauṭilya and others for obviating nuisances on public roads or near private houseṣ Br. (S. B. E. 33 p. 354 verse 28) and Kat (756) provide that roads should not be obstructed by parking⁹¹⁵ 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 māṣaka, and one who does not give⁹¹⁶ precedence on the road to his guru, preceptor or the king should be fineḍ Manu IX. 282 prescribes the fine of two kāṇi supanas 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 roaḍ Vide Matsya 227. 175-76 for the same two verses Kaut II. 36⁹¹⁷ pres- cribes the fine of ⅛ of a pana for throwing dust on a cart-road and ¼ for obstructing it with mud and a fine double of these for doing the same on a royal road; prescribes a fine of one, two, three or four panas 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 that he who defiles a tank, 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 personṣ Yaj. 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 Viṣṇu Dh. S. V. 172 and Śankha-Likhita²³ who prescribe a fine of 1008 panas for transgressing (the whole of) the boundary (of a field). Manu VIII. 264 (= Matsya 227. 30) provides a fine of 200 panas for seizing another's field, garden or house through inadvertance, but 500 for seizing any one of these by intimidatioṇ Nar. XIV. 13-14 and Kāt. (760-761) state²⁴ 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 alone takes all the fruits he is liable to be fined for taking half the fruitṣ 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. Yāj. 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 Yāj. 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 permissioṇ 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 ¹/₃th of the produce every year for eight years giving ¹/₈th to the owner every year and should hand over the field to the owner when the 8th year arriveṣ 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 tenant²⁵. VAKPĀRUSYA AND DANDAPĀRUSYA