V. Vaithinatha Gowndar vs Kasthuribai Ammal and Durai Thirugnanam

M. Chockalingam, J.—The plaintiff who lost his case before both the Courts below in a suit for declaration and permanent injunction has

brought forth the Second Appeal.

The plaintiff sought the said relief stating that one Alavandar Gounder and his wife Kunjammal owned 1 acre 25 � cents punja lands, out of

which on 7.4.1975 they sold 14 cents in 198/18, 28 � cents in 194/6, totalling 42 "" cents to the first defendant; that on 20.5.1975 they sold the

rest of the lands to one Sulochana; that the said Solachana executed a Sale Deed in respect of all the three items of the properties wherein 12 cents

which is in dispute was shown as first item. Pursuant to the said Sale deed, the plaintiff was put in possession and has been in enjoyment of the

same all along; that taking advantage of the mistake that crept in the Sale Deed executed by Alavandar in favour of the said Sulachana and taking

advantage of the Sale Deed executed in his favour under Ex.A10 dated 7.6.84, the defendant was attempting to interfere with the possession of

the plaintiff. Hence, the plaintiff has filed the suit for declaration and permanent injunction.

The suit was resisted by the defendant stating that the subject matter of the instant suit i.e., 12 cents situate in S.No.194/17 was conveyed by

the said Alavandar in favour of the defendant under Ex.A10 on 7.6.84; that the defendant was put in possession and he has been in enjoyment of

the same and the contention of the plaintiff that there was a mistake in the description of the property in the Sale Deed executed in favour of

Sulochana was not correct; that actually Sulachana could not make conveyance of the said 12 cents in S.No. 194/17 in favour of the plaintiff under

Ex.A3 Sale deed, since no such property was available at the time of the said sale and hence, it was a false claim and it has got to be rejected.

The trial Court framed necessary issues tried the suit and dismissed the same. The appeal filed by the plaintiff was also dismissed. Hence, this

Second appeal has been brought forth by the aggrieved plaintiff.

At the time of admission, the following substantial questions of law were formulated by this Court.

Whether the lower appellate Court erred in law in holding that the defendants had acquired title to the suit property under Ex.A-10, when the

original vendors had not subsisting title lon the date of Ex.A-1 inasmuch as they already conveyed the same under Ex.A-2 to Sulochana Ammal,

the plaintiff''s vendor?

Whether the lower appellate Court erred in holding that boundary description will prevail overlooking the fact that the said principle will apply

only when there is discrepancy in the extent sought to be conveyed and not to cases where the intention is to convey the whole of a particular

S.No.?

The Court paid its full attention on the submission made by Mr. Chandra Mouli, learned Senior Counsel and Mr. S.K. Ragunathan, learned

counsel appearing for the respondents on those contentions. The Court is unable to notice any merit in this appeal.

It is not in contraversy that one Alavandar son of Arunachala Gounder and Kunjammal owned 1 acre 24 � cents originally and they conveyed

4 cents in S.No. 194/18 and 28 � cents in S.No.194/6 and thus, totalling 42 "" cents in favour of the first defendant under a sale deed dated

7.4.1975. According to the plaintiff, the rest of the lands which they owned was conveyed to Sulochana under Ex.A2 who in turn executed Ex.A3

in favour of the plaintiff. The relief of declaration in respect of 12 cents situate in S.No.194/17 is claimed by the plaintiff specifically stating that the

precedessor-in-title by name Sulochana executed Ex.A3 document including 12 cents showing as the first item and the said predecessor-in-title

purchased the properties under Ex.A2 where four boundaries were clearly shown and thus, the plaintiff who was put in possession pursuant to

Ex.A3 in respect of 12 cents should be given declaration in that regard.

The suit was contested by the defendant stating that on the date when Ex.A3 Sale deed was executed by Sulochana in favour of the plaintiff, the

said item with an extent of 12 cents was not actually available but it came to the posssession of the defendant under Ex.A.10 pursuant to the Sale

Deed executed on 7.6.1984 by the said Alavandar and thus, the defendant was in possession of the property. Ex.A3 would clearly indicate that it

did not contain 4 boundaries in respect of 12 cents and it is merely mentioned as S.No. 194/17. The case of the plaintiff was not that Sulochana,

the predecessor-in-title purchased the property from Alavandar under Ex.A2 but the case of the plaintiff is that there is a mistake in the 4

boundaries in respect of 12 cents in the earlier document namely Ex.A2 which was executed by Sulochana, predecessor-in-title in favour of the

plaintiff. At this juncture, it has to be pointed out that the plaintiff has not sought for any rectification from the predecessor-in-title. Having failed to

do so, the plaintiff has filed a suit against the defendants seeking declaratory relief in respect of the said 12 cents of lands. It is further to be pointed

out that even the precedessor-in-title, the said Sulochana was not a party to the present proceedings. Above all, the husband of the said

Sulachana, predecessor-in-title of the plaintiff has been examined as P.W.2 and he had categorically admitted in the cross examination that when

the properties were conveyed to the plaintiff and when it was measured, it did not contain 12 cents in question and thus, the evidence adduced by

the plaintiff was against him and the Advocate Commissioner appointed by the Court on inspection has filed a report stating that the property in

question is actually in possession of the defendant. The plaintiff without seeking rectification from the original owner ,precedessor-in-title as to the

boundary mistake which according him was the reason for all these things, has brought forth the suit against the defendants.

Hence, both Courts are perfectly correct in recording the finding that the plaintiff is not entitled for the relief asked for. This Court is unable to

see any reason to disturb the concurrent findings of both the Courts. Therefore, the second appeal is dismissed leaving the parties to bear their

costs.