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Judgment
Jyotirmay Bhattacharya, J.—This Second Appeal is directed against a judgment and decree dated 16th September, 1996 passed by the learned Assistant District Judge, 1st Court at Howrah in Title Appeal No. 248 of 1994 reversing the judgment and decree dated 17th November, 1994 passed by the learned Munsif, 5th Court at Howrah in Title Suit No. 208 of 1992 at the instance of the defendants/appellants. The plaintiffs/respondents filed a suit inter alia praying for declaration that the plaintiffs have every right including the right of easement and/or other indefeasible title over the ''C'' schedule property and the defendants have no manner of any right title and interest over ''C'' schedule property. A decree for permanent injunction was also sought for against the defendants for restraining them and their men, employees and agents from encroaching any part of the suit property or from disturbing the physical enjoyment of the plaintiffs over the ''C'' schedule property and/or from blocking the ''C'' schedule property by any means.
Though initially the plaintiffs claimed easement right over the ''C'' schedule property but ultimately the plaintiffs amended their plaint by introducing that they have acquired the right of ownership in the ''C'' schedule property by purchase.
Though, the plaintiffs, thus, claimed both ownership as well as easement right over ''C'' schedule property in the suit but ultimately the plaintiffs in course of their evidence abandoned their claim for easement right over the ''C'' schedule property by electing their claim for ownership in the ''C'' schedule property.
In fact, the plaintiffs claimed title over both ''A'' and ''C'' schedule property by purchase from the admitted owner viz. Krishna Dhan Dey in 1955. The title of the defendants in ''B'' schedule property which the defendants purchased from the said admitted owner viz. Krishna Dhan Dey, was not disputed by the plaintiffs.
In fact, the plaintiffs restricted their claim to the prayer for declaration and injunction in respect of the ''C'' schedule property, as their title in respect of ''A'' schedule property and their possession therein was neither disputed nor denied by the defendants.
The defendant claimed that the defendants are the owners of both ''B'' and ''C'' schedule property. The defendants further claimed that they purchased both ''B'' and ''C'' schedule property from Krishna Dhan Dey. In fact, the defendants claimed that ''C'' schedule property is a part of ''B'' schedule property.
The pleadings of the respective parties show that the dispute relates to the conflicting claims of the parties regarding their title in respect of ''C'' schedule property.
The learned Trial Judge dismissed the suit by holding that the plaintiffs have failed to prove their title in respect of ''C'' schedule property by virtue of their purchase from Krishna Dhan Dey. The learned 1st Appellate Court, however, reversed the said findings of the learned Trial Judge by holding that the plaintiffs succeeded in proving that the plaintiffs acquired title in both ''A'' and ''C'' schedule property by virtue of purchase from Mr. Krishna Dhan Dey. Thus, the plaintiffs� appeal was allowed by the learned 1st Appellate Court by declaring the plaintiffs� title over ''C'' schedule property. The defendants/appellants were, thus, restrained by a decree of permanent injunction from disturbing the peaceful possession of the plaintiffs/respondents in respect of the ''C'' schedule property.
The pleadings in the plaint show that ''C'' schedule property which is a strip of land measuring about 37 ft. 5 inches X 4 ft. 10 inches situates on the eastern boundary of ''B'' schedule property. The property of Ram Ratan Dey lies on the eastern boundary of ''C'' schedule property and the western side of ''C'' schedule property is bounded by defendant''s property being ''B'' schedule property. Thus, according to the plaintiffs ''C'' schedule is a strip of land which lies in between the defendants'' property being schedule ''B'' and Ram Ratan''s property. On the north of ''C'' schedule, the property of the plaintiff being schedule ''A'' lies and the south of ''C'' schedule is bounded by public road. This description of ''C'' schedule property is given by the plaintiffs in the plaint itself.
Since both the plaintiffs and the defendants have based their claim over the ''C'' schedule property by virtue of their respective purchases from a common vendor, this Court is of the view that such dispute can be resolved with reference to title deeds of the plaintiffs and the defendants particularly when their respective purchases were identified by boundaries in their respective title deeds.
It is rightly pointed out by Mr. Haradhan Banerjee with reference to the decision of this Hon''ble Court in the case of Bholanath Chattopadhyay v. Mritunjoy Chattopadhyay in LIX CLJ 532 that when the boundaries of the transferred property are specified and definite in the deed, the land conveyed must be the land within those specified boundaries and as such the boundaries of the respective purchases of the parties can be tallied with each other for ascertaining the exact area which was transferred by Krishna Dhan Dey in favour of the plaintiffs and the area which was transferred by him in favour of the defendants by their respective sale deeds. In fact, the Hon''ble Supreme Court also in the case of Sheodhyan Singh and Others Vs. Musammat Sanichara Kuer and Others, held that mis-description in the number of plots sold cannot affect the identity of the property sold if the properties can be identified by boundaries.
Keeping in mind the aforesaid principles of law laid down by the Hon''ble Supreme Court as well as by this Court, this Court will have to find out as to whether the plaintiffs have title over ''C'' schedule property or the defendants have title in ''C'' schedule property with reference to their respective title deeds.
Admittedly by a partition deed executed between the common vendor namely Krishna Dhan Dey and his other co-sharers on 4th June, 1955, the properties described in schedule ''A'', ''B'' and ''C'' in the plaint appertaining to plot No. 785 within khatian No. 116 at mouja Andul Gram amongst other plot of land, was exclusively allotted in favour of the common vendor namely Krishna Dhan Dey. The allotment of Krishna Dhan Dey was identified as Lot "A" in the partition deed. The allotment of Ram Ratan Dey was identified as Lot "B" and the allotment of Tripura Sundari Dassi was identified as Lot "C" in the partition deed.
A few days thereafter the said Krishna Dhan Dey sold and transferred two and half cottah of land lying at south-western corner of the said plot No. 785 to one Smt. Radha Rani Devi by executing a sale deed on 10th June, 1955. The land transferred by Krishna Dhan Dey in favour of Radhan Rani Devi was identified by boundaries in the sale deed in the following manner:
East & North - our bastu
West & South - public road.
The said Krishna Dhan Dey subsequently by executing another deed of sale on 15th December, 1955 sold and transferred the remaining part of his allotment in plot No. 785 excluding the sale which had already been made by Krishna Dhan Dey in favour of Radha Rani Devi together with the right of common passage leading east and west for having an access to the tank and for using the water of the said tank which was exclusively allotted to the Krishna Dhan Dey in the partition deed. The land which was so transferred by Krishna Dhan Dey within his allotment at plot No. 785 was also specified by boundaries in the said sale deed. It was mentioned in the said sale deed that from the western portion of his allotment five cottah of land together with the construction therein excluding the portion on the northern side of his allotment in the said plot which had already been sold by him in favour of Radha Rani Devi, was sold to the plaintiffs and the said transferred land is butted and bounded by boundaries in the following manner:
East - Property of the other co-sharers namely Tripura Sundari Dasi and Ram Ratan Dey.
North - Property of his other co-sharers Tripura Sundari Dassi.
West - Road of the Union Board.
South - Property of Rash Behari Bandopadhyay.
Incidentally, it may be mentioned here that Rash Behari Bandopadhyay was the husband of Radha Rani Devi. In fact, Rash Behari Bandopadhyay was not the owner of the land appertaining to land on the northern side of the said plot which was admittedly sold to the wife of Rash Behari Bandopahdyay namely Radha Rani Devi. In the sale deed of the plaintiff, Krishna Dhan Dey loosely referred to Rash Behari�s property in the place of Radha Rani�s property.
The plaintiffs now claim that the ''C'' schedule property i.e. the strip of land measuring about 37 ft. 5 inches X 4 ft. 10 inches, which is lying on the eastern boundary of ''B'' schedule property, was included in his sale deed along with the ''A'' schedule property. The description of ''A'' and ''C'' schedule property was given in the plaint in the following manner:
Schedule ''A''
All that piece and parcel of land measuring more or less 4 cottah 8 chittak along with two storied building thereon comprising within Dag No. 785, undr Khatian No. 116 within Mouja � Andul, P.S. Sankrail, Dist. - Howrah which is butted and bounded as follows:
On the East : Land & Building Sri Haripada Dey
On the West : Panchayat Road
On the North : Land of Sri Haripada Dey
On the South : ''B'' Schedule property.
Schedule ''C''
All that piece and parcel of land measuring about more than 4 ft. X 10 inches in breadth and 37 ft. X 5 inches in length comprising within the Dag No. 785 Khatian No. 116, within Mouja � Andul, P.S. Sankrail, District Howrah, which butted and bounded as follows:
On the East : Others land;
On the West : ''B'' Schedule property;
On the North : ''A'' Schedule property;
On the South : Panchayat Road.
Since the plaintiffs claim that the ''C'' schedule property is the continuation of ''A'' schedule property on its southern part and ''C'' schedule is situated on the eastern part of ''B'' schedule and both the aforesaid schedules were purchased by them by a common sale deed then if I eliminate the southern boundary of ''A'' schedule abutting ''C'' schedule and if I place the ''C'' schedule on the eastern boundary of ''B'' schedule, as per the plaint case, then the boundaries of the said amalgamated plots ''A'' + ''C'' will be as follows:
On the East : Partly by the properties of Tripura Sundari and Partly by the properties of Ram Ratan Dey;
On the West : Partly by the road of Union Board and partly by the defendants'' property being ''B'' schedule;
On the North : Property of Tripura Sundari Dassi;
On the South : Partly by the defendants'' property being ''B'' Schedule and partly by public road.
On close scrutiny of the boundaries of the plaintiffs� purchased land as mentioned in their title deed, this Court finds that the boundaries mentioned in the said title deed does not tally with the boundaries of the consolidated property of ''A'' and ''C'' schedule as the western and southern boundary mentioned in the title deed do not tally with the above description of the consolidated plots as per plaint description.
That apart, if description of schedule land ''C'' as mentioned in the plaint is considered carefully then this Court finds that the plaintiffs themselves claimed that ''B'' schedule property lies on the West of ''C'' schedule property and Panchayat Road lies on South of ''C'' schedule property. If the description of the ''C'' schedule property as mentioned in the plaint is correct then it appears that ''C'' schedule property lies on the eastern boundary of ''B'' schedule property. It necessarily follows that ''B'' schedule property lies on the West of ''C'' schedule property. Again the Southern end of ''C'' schedule property is extended upto Panchayat road. The plaintiffs, in fact, claim their title in respect of the ''C'' schedule property with the above description.
Let me now consider the plaintiffs'' own title deed to verify as to whether the ''C'' schedule property was also included in the plaintiffs� deed of transfer dated 15th December, 1955 being exhibit 1 or not. I have already indicated above that in the schedule of the said title deed it was mentioned that the Western boundary of the property sold, is bounded by road of Union Board. The said deed does not mention that part of the ''A'' schedule property is butted and bounded by the ''B'' schedule land which was sold to Radha Rani Devi. Again the sale deed of the plaintiffs being Exhibit ''I'' shows that the land of Rash Behari Bandopadhyay lies on the southern side of the plaintiffs'' land; meaning thereby that the southern boundary of the plaintiffs'' land was extended upto the northern boundary of Radha Rani. This necessarily follows that the southern end of the plaintiffs� purchased land was not extended upto the public road. Thus, the western boundary and northern boundary of the land sold to the plaintiffs by Krishna Dhan Dey by exhibit ''I'' does not tally with the description of the plaintiffs'' property as mentioned in the plaint concerning ''C'' schedule property.
On the contrary, if the schedule mentioned in the deed of Radha Rani being exhibit ''A'' and the schedule of land transferred to the plaintiffs in their deed of sale being Exhibit ''I'' are compared with each other then there will be no hesitation to hold that the plaintiffs did not acquire title in the ''C'' schedule property as the description of the land sold to the plaintiffs vide Exhibit ''I'' tallies with the description of the land as mentioned in schedule ''A'' of the plaint.
Thus, this Court holds that the plaintiffs have failed to establish their title in respect of ''C'' schedule property.
On consideration of the deed of transfer being exhibit ''A'' by which Krishna Dhan Dey sold and transferred two and half cottah of land in favour of Radhi Rani Devi, this Court finds that the description of the said transferred land as mentioned in the said deed of sale tallies with the description of ''B'' and ''C'' schedule property, if taken together inasmuch as the original bastu belonging to Krishna Dhan Dey and his other co-sharers situates on the eastern boundary of the land transferred to Radha Rani. That is why Krishna Dhan Dey in the said deed of transfer, instead of mentioning that ''my property'' situates on the eastern part of the said land, he mentioned ''our bastu'' meaning thereby the bastu land belonging to Krishna Dhan Dey and other co-sharers lies on the eastern boundary of ''B'' schedule property. The use of the expression ''our bastu'' on the eastern part of the land sold to Radha Rani Devi is very significant as by using the said expression, the vendor admitted that after such transfer, he had no exclusive land left on the eastern part of the land so transferred to Radha Rani Devi. By referring to ''our bastu'' the vendor really wanted to mean their family dwelling house. Use of such expression was quite natural as the sale was made in favour of Radha Rani by Krishna Dhan Dey only six days after the execution of the partition deed. Such admission should be construed strictly against the grantor when some inconsistency between the later and earlier deed is found. In this regard reliance may be made upon the decision of the Hon''ble Supreme Court in the case of Sahebzada Mohammad Kamgar Shah Vs. Jagdish Chandra Deo Dhabal Deo and Others, .
Following the said principle this Court holds that even if there is any inconsistency in the description of the property sold to the defendants by Radha Rani, still then the schedule of the deed of Radha Rani should be followed as it is an admitted position that Radhi Rani sold her entire interest in the land which she purchased from Krishna Dhan, to the defendants.
Thus, this Court cannot hold that the strip of land being identified as ''C'' schedule in the plaint was not sold by Krishna Dhan Dey to the said Radhi Rani as claimed by the plaintiffs.
In fact, the plaintiffs also in the evidence of P.W.1 admitted that by exhibit ''F'' Ram Ratan Dey sold his allotment to one Bipradas Kundu Chowdhury in the year 1986. If the said deed is taken into consideration, then it will appear that it was mentioned in the said deed that on the western boundary of the said land, the land of Laha�s property situates. Thus, the said deed also does not mention that the land of the plaintiffs situates on the western boundary of the land which was sold by Ram Ratan Dey in favour of Bipra DasKundu Chowdhury.
Incidentally, it may be mentioned that Ram Ratan Dey was a cosharer of Krishna Dhan Dey who got his allotment abutting the eastern boundary of the land transferred to Radha Rani Devi.
Mr. Banerjee, however, tried to impress upon the Court by pointing out that Krishna Dhan Dey mentioned in the sale deed of Radhi Rani that he sold south-western portion of the Plot No. 785 to Radha Rani. Mr. Banerjee, thus, wanted to submit that ''C'' schedule property which lies on the western boundary of ''B'' schedule was not sold to Radha Rani.
This Court cannot accept such submission of Mr. Banerjee as Krishna Dhan in the subsequent sale deed executed the favour of the plaintiffs clarified that he sold the northern portion of his allotment to Radha Rani; meaning thereby that after such sale to Radha Rani, Krishna Dhan had no land left on the eastern part of ''B'' schedule and/or on the western part of Ram Ratan Dey''s allotment.
Thus, this Court finds that Radha Rani Devi purchased both ''B'' and ''C'' schedule property by the title deed being exhibit ''A'' and since the defendants purchased the interest of Radha Rani Devi by the deed of transfer dated 18th November, 1966 vide exhibit ''A1'', the defendants have acquired title in both the ''B'' and ''C'' schedule property. This Court, thus, holds that ''B'' schedule property is inclusive of ''C'' schedule property which was purchased by Radhi Rani Devi from Krishna Dhan Dey and subsequently the defendants purchased the same from Radha Rani Devi.
Thus, in the aforesaid circumstances, this Court holds that the judgment and decree passed by the learned 1st Appellate Court cannot be sustained. The judgment and decree of the learned 1st Appellate Court stands set aside.
The judgment and decree of the learned Trial Judge is, thus, restored and the Suit is, thus, dismissed on contest.
The appeal, thus, stands allowed.
Let the Lower Court records be sent back to the learned Court below immediately.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the requisite formalities.