Ganga Sahu and Others vs Kanhu Lal Marwari and Others

Rowland, J.—This appeal by the plaintiffs arises out of their suit to recover possession after declaration of title over a portion of plot No. 9004 in the village of Umardaraz, Tauzi No. 1219. The plot in question has an area of 1 bigha 11 kathas 1 dhur; but the plaintiffs say that they have been dispossessed of 3 kathas 17 dhurs with a house situated thereon. The plaint alleges that the defendants who are very turbulent persons and the enemies of the plaintiffs on 20th July 1927, without any right forcibly entered the house and took possession in spite of the resistance of the plaintiffs. The defence was that the plaintiffs'' ancestor had mortgaged the house in suit with other properties to defendant 1 on 18th September 1908, that this defendant sued on his mortgage, obtained a decree, put the house to sale, purchased it and was put in possession. Further that on partition between this defendant and some members of the plaintiffs'' family the house was allotted to this defendant who has since been in lawful possession.

It is admitted that there was a mortgage and that the mortgaged property was sold up. But the plaintiffs contend that the mortgage referred to another property situated immediately to the south of the house in suit and falling entirely within plots Nos. 9038 and 9039 in village Habibpur in the zamindari of Mt. Bittu Kumri. A reference to the map prepared by the Commissioner shows that there is a house and gola forming practically one continuous block, its length being from north to south; the northern portion falling within village Umardaraz and the southern portion falling within village Habibpur.

The question therefore is whether the mortgage and the proceedings on the mortgage refer to the entire block or only the southern portion. The description in the mortgage bond was followed in describing the property in the mortgage suit and decree and in proceedings for delivery of possession and is as follows:

Item 6.--1 Gola facing south, situated in mauza Habibpur, paying a ground rent of Rupees 3-13-0, lying within the zamindari of Mt. Palto Kueri and others together with all the materials and existing appurtenances thereto including residential right in 2 kathas and 5 dhurs of land.

BOUNDARIES:

North.--Nad (tub) and cow-shed of the executant.

South.--Public road.

East.--Ramdhin Sahu.

West.--Abdul Mian, son of Mania Baksh, Survey Khasra Nos. 9038 and 9039, 1 kita."

As regards the boundaries on south, east and west there was no dispute. As regards the northern boundary the plaintiffs maintained that at the time of the mortgage bond the executant''s Nad and cow-shed were situated just north of the line T.V.U.W.X. of the Commissioner''s map and that the reason why these land marks are no longer in existence is that the plaintiff has subsequently built the extension of his premises to the north up to the line A.B.C.D.E.F. The defendant contended and the Courts below have found that the northern portion of the premises was not subsequently built but was in existence all along and that the Nad and cow-shed at the time of the mortgage bond were situated just north of the line A.B. C D.E.F.

That is a finding of fact by which we are bound. Turning now to the description of the property, it is to be observed that the description by plot numbers, by area, by reference to the name of the village and the zamindary agreed with the contention of the plaintiffs, that is to say, a reading of these descriptions, if the boundaries are ignored, appear prima facie to agree with the plaintiffs'' case that what was sold was the southern portion only and not the entire block. There is therefore a discrepancy between the description by boundaries and the general description.

The first Court referred to the decisions in Linton Molesworth and Co. Limited Vs. Jagannath Supakar and Others, and in Raghunandan Thakur Vs. Babu Kishundeo Narain Mahta and Others, as authority for a general proposition that where land conveyed is described by boundaries as well as by area, the description by boundaries must prevail. It is contended that those cases can be distinguished, that no such general proposition was laid down and that in both these cases the general description was somewhat indefinite. We do not propose to take it as an invariable rule that in all cases of disagreement between description by area and specification of boundaries the latter must prevail.

It is we think a matter for examination in each case as to what was the intention of the parties and the understanding between them at the time of entering into the contract.

In the present case the property mortgaged was a standing house mortgaged as a building and including residential right and on the evidence it has been found that the Nad and cow-shed were in existence at an ascertained position. We think that this is a case in which the description by boundaries should prevail and the Courts below were right in adopting that construction of the mortgage bond and of the proceedings in the suit. The result is that the appeal is dismissed with costs.

Agarwala, J.

I agree.