High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20.04.2007CORAMTHE HONOURABLE MRS. JUSTICE PRABHA SRIDEVANSecond Appeal No. 732 of 19951. Mr.K.Subramanian (died)2. S.Vanaja3.S.Saravanan4.S.Valli... Appellants. (Plaintiff) Appellants 2 to 4 brought on record as L.Rs. Of the deceased 1st appellant in C.M.P.No.799 to 801 of 1998 dated 3.2.1998.VsRamabadra Reddiar... Respondent.(First Defendant)Prayer:- Second appeal against the Judgment and Decree passed in A.S.6 of1993 dated 18.4.1994 on the file of the Subordinate Judge, Villupuram,against the Judgment and Decree in O.S.No.645 of 1985 dated 27.8.1992 onthe file of the District Munsif, Tirukkoilur.For Appellant: M/s.S.KrishnaswamyFor Respondent : M/s.N.RajanJ U D G M E N T The plaintiff is the 1st appellant. He filed a suit for declarationand injunction. According to him, the suit property measures 50" x85". On appeal, the learned Appellate Judge held that all that theplaintiff may be entitled would be for an extent of 50" x 30" and notanything more. The decree is rather unhappily awarded. In any event, theplaintiff has filed the second appeal raising the following substantialquestions of law:-1.Whether the lower Appellate Court failed to rely uponthe principle that boundaries will prevail over the areain the facts and circumstances of the case, when the areis mistakenly carried over in the documents? And2.Whether the lower Appellate Court has wrongly reliedupon Exs.B-1 to B-4 in which the appellant is not aparty which resulted in miscarriage of justice? https://hcservices.ecourts.gov.in/hcservices/

2. The suit property has passed through several hands over severalyears. There was a mortgage, Ex.A-1, in 1943 and a sale deed, Ex.A-2, in1948 purchased by the 1st appellant/plaintiff in 1969, bokyam of half ofthe property, Ex.A-4, in 1970, Bokyam of the other half of the property,Ex.A-5, in 1970, redemption, Exs.A-7 and A-8, in 1979, then anothermortgage, Ex.A-6, in 1979, mortgage again discharged, Ex.A-9, in 1983.According to the appellants, there are two huts bearing door numbers 29and 30. The plaintiff is in possession in door No.30 and a tenant is inpossession in door No.29. The suit was necessitated because the firstdefendant in the suit, the respondent herein, filed a suit for recovery ofpossession against the 2nd defendant. The suit was decreed. The firstappeal and the second appeal filed by the 2nd defendant were alsodismissed. Thereafter, the 1st defendant, respondent herein, sought toexecute the decree. Then, the plaintiff came to know that his propertywas also included as the suit property in 1st defendant's suit andtherefore, the suit was filed. The respondent resisted the suit sayingthat even before Ex.A-1, which is dated 19.01.1943, his mother hadobtained delivery of the entire property, viz., 'B' Schedule property,which includes 'A' Schedule property and therefore, the plaintiff is notentitled to the decree. In all the documents, the four boundaries arespecified. The trial Court relying on Dina Malar Publications -v- TheTiruchirappalli Municipality (1984 II MLJ 306) = (1984) 97 L.W. 365),held that when boundaries are mentioned, they would prevail over theextent and notwithstanding the fact, the extent mentioned in thosedocuments is 50" x 30", the plaintiff would be entitled to 85" x 50",since that is the extent enclosed by the four boundaries mentioned in thedocuments. The Appellate court, on the other hand, held that boundarieswould prevail over the extent only if there is ambiguity or lack ofclarity in the extent. If the extent is clearly mentioned in thedocuments, then it would be clear that what was intended to be conveyed.Therefore, the first Appellate Court held that on the basis of Ex.A-3,the plaintiff purchased the property from one Subharayan to an extent of50" x 30" and further held that if at all the plaintiff is entitled to anyextent, it would only be for this extent. Against that, the presentsecond appeal has been filed.3. The learned counsel for the appellants strongly contended thatmerely because there was some discrepancy in the extent, the plaintiff'sright to 85" x 50" cannot be taken away. The learned counsel read therecitals in all the documents to show, how the plaintiff has traced hisright to the property. The learned counsel also pointed out the AdvocateCommissioner's plan and sketch, which would show the manner, in which, theplaintiff has enjoyed the property and the extent. The learned counselcorrelated the four boundaries and showed on the three boundaries, viz.,north, west and east tally. It is only with regard to the southernboundary, there is some variation. But in any event, it is clear fromthe documents, what was intended to be purchased, was the entire extentenclosed in the four boundaries and therefore, the lower Appellate Courthad clearly misdirected itself in the construction of the documents. Thelearned counsel, specifically pointing out Ex.A-3, which reads as follows, https://hcservices.ecourts.gov.in/hcservices/ nfhtpe;juhR gilahr;rp kidf;Fk; (t) ehuhaz brl;o kidf;Fk; (fp)Fsj;J g[wk;nghf;F kidf;Fk; (nk) ,jpy; fpHnky; $hjpao 50 x 30 ,e;j moa[s;s fPH; kida[k; nkny fl;oapUf;Fk; jz;oak; nghl;l TiutPLk; fjt[ mhpt[fhy;$ij 5 cs;glt[k; ml';fpa TiutPL nkw;go Jiff;F fpuak; nkw;go tPL thh;Lbe 7 nlhh; be 30 thp be 190 nkw;go tPL kl;Lk; fpHnky; $hjpao 30 x 20ghf;fp fhyp kid/" said that the way this should be construed is that the building was anextent of 50" X 30" and the remaining vacant land was 30" x 20" andtherefore, if the total extent is calculated, it would be 50" X 30" + 30"x 20", which would be 80" x 50" and if so calculated, the plaintiff'stitle would clearly be established. 4. The learned counsel for the respondent submitted that if at allthe plaintiff is entitled to a decree, it is only for 50" x 30" andpointed out the evidence of P.W.1, where there is a clear admission, thatwhat was purchased was only 50'X 30" and nothing more. The learnedcounsel also relied on P.W.1's evidence, where it is stated that he haspurchased only a portion of item 'A' of the suit schedule property. Thelearned counsel submitted that the southern boundary is Govindarajan'sproperty, as seen from even Ex.A-3, and it is this Govindarajan, againstwhom, he filed the suit and obtained a decree and at the time ofexecution, he was thwarted by the plaintiff by filing a suit. The learnedcounsel also submitted that for the first time in the second appeal, thestand is taken that what was conveyed under Ex.A-3 was 50" x 30", onwhich, super structure stands and 30" x 20" is the vacant land. Thelearned counsel submitted that the proper way to construe the document,which is the way, the first Appellate Court has done, is that in theextent of 50" x 30", the super structure stands on 30" x 20" and theremaining is vacant land. Even the plaintiff had not understood themeasurement as it is now explained by the learned counsel. The learnedcounsel for the respondent also submitted that if under Ex.A-3, theplaintiff had purchased 50" x 30" + 30" x 20", there was no occasion forhim to plead again and again in the plaint that there was some error inthe extents measured in the sale deed. So, it is clear that the extent asper the documentary evidence is 50" X 30". The learned counsel submitted,in fact, even with regard to the description of boundaries, the plaintiffhas come forward with a case that there was some misdescription. Thelearned counsel for the respondent submitted that the lower AppellateCourt had rightly rejected the case of the plaintiff.5. There is no dispute regarding the fact that in each of thedocument relied on by the plaintiff the extent is clearly marked. InKuppuswami Naidu -v- Krishnasamu Naidu (2004(5) CTC 344), it was held asfollows:-"Transfer of Property Act, 1882 – Discrepancyregarding measurement – Sale Deed describing areaconveyed and specifying boundaries – Boundaries https://hcservices.ecourts.gov.in/hcservices/ mentioned in earlier document of title and laterdocument mentioned identical boundaries – Boundarieswhen clearly spelt out in document will have to beaccepted as clear reflection of intention of grantorand true extent covered by such document – Area foundin later document though larger than first documentaccepted as correct as boundaries of both documentswere identical."In Roohnisha Beevi and 15 others -v- A.M.M. Mahudu Mohamed and 29 others(1998-1 L.W. 244), it was held as follows:- "Evidence supplied by boundaries, extent, surveynumbers and lakhoms (Paimash numbers) are thedetermining factors when the identity of the propertyis put in issue.In case of conflict, usually boundariesprodominate and the rest is regarded as erroneous orinaccurate descriptions.Erroneous statement of survey numbers or omissionto state it should be rejected as falsa demonstratio."In Subramania Bathar -v- Srinivasa Bathar and 9 others (2002-1 L.W. 120)it was held as follows:- "It is established legal position that boundarieswould prevail over measurements in case there isconflict. In Dina Malar Publications v TheTiruchirappalli Municipality (1984 II MLJ 306) = (1994)97 L.W. 365) R.Sengottuvelan, J. after referring to anumber of decisions set out the principles underlyingthe concept.(1) In case of doubtful or varying extents in thedocuments of title relating to the property, boundariesshould be preferred to the extent;(2) Only in the absence of definite materials toshow the actual extent intended to be sold theboundaries should outweigh the doubtful extentmentioned in the document;(3) If the recitals in the documents and thecircumstance of the case show that a lesser extent onlywas conveyed then the area covered by boundaries, andthere is clear evidence as to the intention of theparties with reference to the extent conveyed, then theextent should prevail over the boundaries." https://hcservices.ecourts.gov.in/hcservices/

6. In this case, in each of the documents, there is a specificmention as 50" x 30", especially in Ex.A-3, which is the document underwhich the plaintiff has purchased the property and if so, the plaintiff isnot entitled to anything more. The judgment of the Appellate Court isconfirmed. However, while drafting the decree, it may be specificallymentioned that the suit is partially decreed and the plaintiff is entitledto 50" x 30" (i.e., East West-50 x North South-30). 7. For the above said reasons, the substantial questions of lawraised by the appellants are not answered in favour of the appellants.The second appeal is dismissed. However, there will be no orders as tocosts. bs/Sd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The Subordinate Judge, Villupuram.2.The District Munsif, Tirukkoilur.3.The Record Keeper, V.R.Section, High Court, Madras.+1 cc to Mr.P.T.Perumal, Advocate Sr.No.26634.+1 cc to Mr.S.Krishnasamy, Advocate Sr.No.26643.VC(CO)dcp/31.5.07Second Appeal No.732 of 1995