Kamakshi Ammal vs R. Ranganathan Chettiar and another

Natesan, J.—This second appeal has been preferred by the plaintiff and arises out of a suit filed by the plaintiff for declaration of her title to the suit property, an extent of 40 cents, for recovery of possession of the property and for certain other consequential reliefs. The plaintiff alleged trespass by the first defendant on the suit property in August, 1960 and that is said to be the cause of action for the suit. The 2nd defendant in the suit is her son and he sails with the plaintiff. The trial court decreed the suit as prayed for and on appeal by the 1st defendant, there has been a modification of the decree by the learned Subordinate Judge Nagapattinam. It is this modification that is the subject of challenge in the second appeal. The disputed suit property which is coloured green in the Commissioner''s plan attached the decree, forms part of the land T.S. 2788/2-C. This property and the properties east and west of it all forming part of T.S. 2788/2-C admittedly belonged to one Manicka Nadar, who purchased the entire extent under two sale deeds Ex. A-1 and A-2, bearing dates 14th December, 1918 and 3rd March, 1920. The total extent of land purchased by Manicka Nadar under the sale deeds as recited therein comes to 1 acre 40 cents. The documents recite that the extent may be more or less (sic). Manicka Nader''s wife and son sold a portion of the property purchased by Manicka Nadar under Ex. A-1 and A-2 in the west (in the east is admitted to be a mistake) to one Nataraja Mudaliar, who has figured as P.W. 1 in the case, under Ex. A-3 on 25th April, 1952. The document gives the four boundaries of the property sold and gives the extent as 1 acre, 1 cent ''more or less''. The plaintiffs claims the suit property as part of the property included in Ex. A-3 under a settlement made by this Nataraja Mudaliar evidence by Ex. A-4 dated 7th March, 1954. Subsequent to the sale in favour of the plaintiff, Manicka Nadar''s wife and his sons'' widow conveyed the remaining portion of the property he purchased under Ex. A-1 and A-2 to one Noor Mohamed Rowther under Ex. B-2 dated 15th October, 1956. This document specifies the western boundary of the property sold as the property of Nataraja Mudaliar covered by Ex. A-3. This document gives the four boundaries of the property sold. The extent sold is given as 18,731 sq. ft. The present first defendant purchased under Ex. B-1 dated 11th January, 1959 the property that had been conveyed in favour of Noor Mohamed Rowther under Ex. B-2. He is the owner of the property east of the property comprised in Ex. A-1 and A-2. The trial court considered that there was no ambiguity in the description of the property scheduled in Ex. A-3, regarding the identity of the property which the vendors intended to convey and the vendees intended to purchase. Identifying the suit property as part of the property covered by the sale deed Ex. A-3 a decree was given in favour of the plaintiff. It may be stated, that, if the extent of the suit property is added in its entirety to the property which admittedly the plaintiff holds under Ex. A-3, the extent secured to the plaintiff would be greater than one acre and one cent. The trial court did not go by the extent mentioned in Ex. A-3. It took the view that the vendors of Ex. A-3 having parted with the property by describing the particular boundaries, the plaintiff got the entire extent within the said boundaries and the first defendant as subsequent purchaser could claim no title to any portion of the property enclosed within the four boundaries of Ex. A-3.

On appeal, the learned Subordinate Judge examined the extents of the several blocks comprised in the purchases by Manicka Nadar under Ex. A. 1 and A. 2 in respect of which claims have been made by the plaintiff and the 1st defendant. The Commissioner who prepared a plan of the locality has given the extent of the respective blocks. His report and the plan have not been the subject of any challenge. In the Commissioner''s plan, the portion in the west marked ''yellow'' admittedly belong to the plaintiff. Immediately east of it there is a channel portion, marked, ''blue''. Then comes the disputed area coloured ''green''. East of this is the extent marked ''brown'' which admittedly belongs to the 1st defendant. The learned Subordinate Judge takes up for consideration the relative extents of the various blocks the title to which was admitted. The total extent which ought to have been owned by Manicka Nadar, it is found, comes to 65,282 sq. ft. i.e., 2515 sq. ft. in excess of 1 acre 40 cents stated to have been purchased by him. We must here member that the extent stated in Ex. A. 1 and A, 2 is only ''more or less''. The portion marked ''yellow'' which admittedly belongs to the plaintiff by virtue of the conveyance from Manicka Nadar''s heirs measures 42066 sq. ft. The channel immediately east measures 1344 sq. ft. The measurement or the ridges in the west of the yellow coloured portion is also given by the Commissioner. The extent which admittedly belongs to the first defendant measures only 8258 sq. ft. much less than what is purported to be conveyed to him. The learned Subordinate Judge, having regard to measurements, starts on his decision of the case observing that the brown coloured portion alone does not cover the extent purchased by the 1st defendant under Ex, B 1. After stating this, he observes:--

So, the case of the plaintiff that the entire nanja land portion marked green in the Commissioner''s plan belongs to her cannot be accepted.

But why should be it not accepted ? What happens if his vendors had no title to move ? No reasons are given. After briefly referring to the contention of the plaintiff and the 1st defendant, the learned Subordinate Judge proceeds to observe:--

Considering the total extent and the extent claimed by each party, some equitable arrangement has to be made.

He then proceeds to make an equitable distributions of the excess extent revealed on measurement of the entirety of the property. He distributes the excess of 2515 sq. ft. which the entire property showed over and above the extent specified in Ex. A. 1 and A. 2 between the plaintiff and the 1st defendant. It is this move of division of the property that is attacked by the plaintiff before me as erroneous and illegal. Learned counsel submits that the parties are here seeking to establish their title to the property under their respective conveyances. The question for consideration is whether the plaintiff is entitled to the green coloured portion either in whole or in part, under Ex. A. 3. Her case is that the green coloured portion is covered by the conveyance under Ex. A. 3. and A, 4 and it has been trespassed upon by the 1st defendant. The 1st defendant would contend that the plaintiff obtained under the conveyance only an extent of one acre, 1 cent and cannot claim more, it is urged for the 1st defendant that the portion marked ''yellow'' in the occupation of the plaintiff, if ridges in the west and the channel are takes into consideration, would be more are less about 1 acre, 1 cent actually purchased by her and her purchase is by extent and not by boundaries. For the plaintiff the contention is that the conveyance under Ex. A. 3 was not by extent but by boundaries and that the four boundaries are clearly specified and are definitely identifiable. It is therefore stated that if within the four boundaries the green coloured portion falls, as it does, the 1st defendant can lay no claim to any portion therein. The submission is that the first defendant being a subsequent vendee, he could claim title and possession only to the portion of the property left with his vendors after the conveyance in favour of the plaintiff''s predecessor.

Sri Sarvabhauman, learned counsel for the first defendant, seeks to maintain the Judgment of the learned Subordinate Judge before me by contending that the plaintiff must be confined only to the extent of 1 acre 1 cent. It is said that the conveyance is of a specified extend and not the entire area comprised within specified boundaries. It is submitted that particularly the northern boundary is not well defined. But the learned Subordinate Judge has not confined the plaintiff to an extent of one acre one cent. He does not find by reference to deeds and the attendant circumstances at the time of the grant under Ex. A. 3, that the conveyance was of a specified extent and not an area within defined boundaries. If the contention of the first defendant that the conveyance in favour of the plaintiff was only an extent and not by boundaries is correct and can be accepted, notwithstanding that the extent specified in the deed is statedly not precise, there is no ground for depriving the first defendant of whatever is left after the conveyance under Ex. A. 3. But that is not the view of the learned Subordinate Judge. It is not the case of either party that the vendors retained any portion after the conveyance under Ex. A. 3 and B. 2. Equally if the conveyance under Ex. A. 3 is by boundaries and not by extent, the extent given which is imprecise being a misdescription, and the four boundaries are clearly identifiable, that is, if the land conveyed under Ex. A. 3 can be clearly identified by reference to the boundaries, then the mere fact that the first defendant cannot get the entire extent purported to have been conveyed to him under Ex B. 2, in neither here nor there. He could get title to and claim possession of only what had been left with his vendors after the conveyance under Ex. A. 3. In the jurisdiction which the court was called upon to exercise in this matter, there is no room for the application of any supposedly equitable principles. No recognisable equity has been pleaded for depriving either party of their bona fide acquisitions or adding to their acquisitions to any extent. The region of equity jurisdiction is well defined. Rules of equity are well recognised any beyond it cannot override rights of parties. A judge cannot, to accommodate his personal views of justice and fair-play and right and wrong, invent a new rule of equity. I am in entire agreement with the contention of the counsel for the appellant that the rights of the parties in this case have to be determined according to law and not on assumed equities. The parties have not made the court an arbiter to decide the case as the court considers just and equitable. The learned Subordinate Judge has, overlooking the well-established principles of law that should govern the case, proceeded to exercise a different jurisdiction like a sheik dispensing rough and ready justice under a palm tree, dividing the excess between the two parties. Certainly this is not rendering justice according to law. The distribution of the excess extent cannot be justified on any legal basis. The question is on what legal basis the plaintiff and the first defendant share the property held by Manicka Nadar, as admittedly they share the same between themselves Both of them are vendees and they claim title under Manicka Nadar. The plaintiff is the earlier vendee and the 1st defendant is the subsequent vendee. As between them the earlier extent held by Manicka Nadar is exhausted. If the plaintiff had under her sale deed, secured only one acre one cent and no more, if she has that, she cannot complain of trespass. The court will have to adjudge to the plaintiff only that extent and democrat it and leave the rest to the first defendant is possession.

In a ease of this kind, the court has to find out whether under Ex. A. 3 what was intended to be conveyed was the area of land within defined boundaries, the entire extent comprised within the boundaries. Or is it a grant of a precise extent located in a larger area indicated by boundaries? What is the significance of the expression ''more or less'' "(sic) " in Ex. A. 3? If the deed of conveyance gives both the extent and the boundaries the court will have to determine what the intention of the parties was at the time of grant, having due regard to the law evidence. The problem can arise only when there is inconsistency and both area and boundaries are specific. First, we have to ascertain if there is real inconsistency between the boundaries and area, or is the inconsistency only seeming? There can be no hard and fast rule in a matter of this kind that when both the boundaries and area are given and both cannot stand together, the intention was to convey the entire extent covered by the boundaries. Equally reference to the area, particularly when it is not precise cannot falsify the conveyance by boundaries. One test is, which of them is precise and capable of identification and easy location on the ground for the attempt should be to give effect to the grant according to its terms. We have to find out which of them may be discarded and which taken for identification of the grant, as the governing mark or the substantial or true part of the description.

Several decisions have been placed before me by counsel on either side. It is needless to refer to them in detail. The law on the point may be found collected En Sarkar on Evidence, 11th Edn. at page 861. I may first refer to the decision of the Supreme Court in Sheodhyan Singh and Others Vs. Musammat Sanichara Kuer and Others, where reference is made to the decision inDas Kundu v. Mritunjoy Agnan Sardar 18 Cal, L.J. 541 a case where land sold was described by boundaries and area; but the area was found in correct. It was held by the Supreme Court that that was a case of misdescription of the area and the boundaries prevailed. Learned Counsel for the appellant drew my attention to the decision in Siviskamuthu v. Gopalakrishna AIR 1963 Mad. 147 where Ramakrishnan J. held that where the property sold is part of a definite survey number and in the sale deed the exact boundaries of the part sold were given and the area mentioned was only approximate, the description by boundaries should prevail in ascertaining the actual property sold under the document. As pointed out by the Supreme Court decision referred to above when there is a sale by boundaries and plot number of the area also is given, the question for consideration would be where the mistake lies. The rule is, that which found to be mistake would be treated as a mere misdescription, and would not be allowed to effect the identity of the property sold, otherwise established. For a sale deed of an extent identified by boundaries, it is essential that the boundaries, must be well defined and identifiable. If the grant is of a specified extent in a larger area, the extent may be localised or it may be undemarcated. The intention in this regard may also give a clue. Ultimately it is a matter of interpretation of the great according to the established canons of construction of grant.

Learned counsel for the first defendant referred to the decision in Zamindar of Sivaganga v. Karuthan Ambalam (1938) 2 M.L.J. 499 It is sufficient to set out the headnote of the case:--

Where the question is as to the actual extent of land that was conveyed by a deed, whether the whole land included in the boundaries which are mentioned in the description of the property in the deed are only the particular area set out therein, it is not permissible, whatever the intention of the parties in fact may have been to receive extraneous evidence in explanation of the terms of the deed, where the terms of the deed are clear and unambiguous: But where the terms of the deed are, clear and unambiguous and there is some inconsistency between the different parts of the same document the only way of solving the ambiguity, if any, is to look at the surrounding circumstances, namely, the circumstances which led to the grant and the circumstances subsequent to the grant in order to discover whether any portion of the instrument amounts to a false demonstration In construing the terms of a document it is therefore permissible not only to look the terms of the document but also to the surrounding circumstances with a view to discover the intension of the parties as expressed in the deed.

The point to be noticed is that this decision is authority also for the position that simply for the reason the extent of the plot found within defined boundaries is more than what is mentioned in the deed, the boundaries ought not to be ignored. A fortiori the rule would apply if the extent given is only approximate. The court before ignoring the boundaries must find that the entire extent enclosed by the boundaries was not intended to be conveyed having regard to the circumstances attendant at the time of the conveyance. That is, it must conclude with regard to the principles above referred to in broad outline that what was intended to be conveyed was a specified extent and not the area comprised within set boundaries. The deed must be interpreted so as to give effect to it. The interpretation must be for localising the grant on the ground. The terms of the document have to govern when they are clear and evidence cannot be let in which goes against the unambiguous terms of the deed. Learned counsel for the first defendant referred to the decision in Ganga Sahu and Others Vs. Kanhu Lal Marwari and Others, where it is observed that it is not an invariable rule that in all cases of disagreement between description by area and specification of boundaries, the latter must prevail. As noticed therein, it is a matter of 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. But when the terms of the document are clear, what the parties state after the transaction was their intention, cannot govern the conveyance. Such evidence to vary the terms is inadmissible. The Court has to go by the deed. It is only ambiguity that could be explained by reference to the surrounding circumstances. Reference may also be made to the decision in Equitable Coal Co. Ltd. Vs. Amrita Nath Mitter and Others, cited for the respondents. In this decision it is held that the effect of the document depends upon the operative portion rather than on the descriptive schedule. The court, it is said, has to ascertain what was actually granted by the operative portion of the instrument. Another citation for the respondent is Ganesh Hota and Another Vs. Purushottam Misra and Another, where it has been held that the proposition that where the area goes against the boundaries, the boundaries should prevail cannot be accepted as a universal proposition. It is pointed out in this decision that the decision is as to what had been demised upon the true construction of a lease or grant. One other decision which is cited in Alla Basavapunnareddy Vs. Kalaga Krishnayya and Others, . It is pointed out here that under Ss. 95 and 97 of the Indian Evidence Act, the parties could lead extrinsic evidence to show what was the true state of affairs, that is to say, whether the whole land lying within the boundaries described was taken possession of and enjoyed. This decision also holds that in the first instance the area within the boundaries must be held to prevail over the extent, though the real intention of the parties has to be gathered not merely from what ex facie is set out in the document in question, but also from the relevant extrinsic evidence. Of course such extrinsic evidence must be permissible under the provisions of the Evidence Act, there must be need for clearing up what is found in the deed by reason of the terms being unintelligible with reference to existing facts of being ambiguous.

Clearly the learned Subordinate Judge has not examined this case in the light of any such principle and as already stated has gone on some assumed equity. As it is, these judgment cannot stand. I have deliberately refrained from discussing the respective contentions of the parties on the merits of the ease, lease it should embarrass the lower appellate court to which I am remanding this case. The fact that I am setting aside the judgment of the lower appellate court does not, particularly having regard to the approach of the learned Subordinate Judge, mean that I am in any way accepting the decision of the trial court. The decision of the trial court was under appeal before the Subordinate Judge. The learned Subordinate Judge who decided the case on the former occasion and whose judgment is now before me under appeal has approached the case from a totally erroneous stand, and the relevant facts have not received due consideration. He has not decided the case according to the principles of law applicable. The trial court has gone by the boundaries. It may be that the learned District Munsif was justified in his conclusion. I do not say that he is justified; nor do I say the other way. I have indicated the principles on which this case should be disposed of. The legal tights of parties have to be determined according to well-recognised canons of construction of grants.

With these remarks, the decision of the learned Subordinate Judge is set aside. The decree and judgment of the lower appellate court arc vacated and the appeal is remanded to the lower appellate court for fresh disposal according to law in the light of the observations mentioned above. The court-fee paid on the Memorandum of second appeal will be refunded. The parties will bear their respective costs in this court.