IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON: 14.02.2017 PRONOUNCED ON : 24.02.2017 CORAM THE HONOURABLE DR.JUSTICE G. JAYACHANDRAN S.A.No.912/1999 Mohammed Ismail ..Appellant .Vs.
Hameed Sultan ..Respondent Prayer: Appeal filed under Section 100 Civil Procedure Code against the Judgment and Decree dated 20.11.98 made in A.S.No.84/98 on the file of the Sub Court at Nagapattinam reversing the Judgment and Decree dated 19.09.9, made in O.S.No.64/96 on the file of District Munsif Court at Tiruvarur.
For Petitioner : Mr. Srinath Sridevan For Respondent : Mr.R.Siddharth for T.R.Rajaraman JUDGMENT The brief facts of the case is as under:
2. On 06.06.1970, the plaintiff had purchased the suit property shown as Schedule A and B in the plaint from the defendant. As per the sale deed, the extent of the property is mentioned as "more or less" 11 cents, the boundaries are mentioned in the sale deed. Later the younger sister of the defendant Sulthana Rashia Begum filed a suit for partition against the defendant and others in O.S.No.166/77 in which she sought for 7/104 shares in the properties mentioned in her suit schedule which includes the property bearing S.No.137/1 in Adiakkamangalam. The said property is now in dispute because in the partition suit mentioned above preliminary decree was passed, and consequently in I.A.No.416/79 was filed and Commissioner measured the land at S.No.137/1. At that time, it was found that the actual extent on ground was 19 cents and not 11 cents, as it is mentioned in the sale deed of the plaintiff as well as in the other documents.
3. The allegation of the plaintiff is that after knowing that the actual extent of S.No.137/1 is 19 cents and not 11 cents as it was presumed, the defendant trespassed into the portion of the plaintiff's land and put up fence. The entire land purchased by the plaintiff is described under A Schedule and the encroached portion is described under B Schedule of the plaintiff.
4. The defendant as annexed the Well and Coconut Trees and put up a 36 feet length wall running North to South. Therefore, the suit for declaration in respect of A Schedule property and recovery of possession in respect of B Schedule property filed.
5. The defendant admits the execution of the sale deed dated 06.06.1970 infavour of the plaintiff in respect of S.No.137/1. According to him, it was only 11 cents sold to the plaintiff and the remaining 8 cents was retained and enjoyed by him. In the final decree proceedings passed in O.S.No.116/1977, he was allotted the 19 cents of land in S.No.137/1. Excluding 11 cents sold to the plaintiff, he is in the remaining 8 cents, fenced and enjoying it.
6. The plaintiff has removed the Coconut Trees and Well in his land and trying to claim 8 cents of land along with the Well and Coconut Trees in the defendant's land. The plaintiff is only entitled to 11 cents of land which was alienating to him under the sale deed and he cannot claim a larger extent more than what sold.
7. The trial Court after considering the evidence let in by the respective parties dismiss the suit. On appeal, the First Appellate Court reversed the finding of the Trial Court and allowed the suit. Aggrieved by the reversing judgment, the defendant has preferred this Second Appeal.
The following Substantial Question of Law has been formulated by this Court at the time of admission.
“a)Whether boundaries will prevail over extents, when the intent of the parties indicates the specific extent mentioned in the documents?
b) Whether the words “or thereabouts”, used with reference to property, will include a discrepancy of 80% ? and
c) Whether burden of proof does not lie on the plaintiff with regard to relief of mandatory injunction?
8. The learned Counsel appearing for the appellant would submit that the Lower Appellate Court erred in law holding that the plaintiff is entitled for 18 cents of land. While Ex.A-1 sale deed itself confers only 11 cents of land and the expression "more or less" 11 cents cannot be taken as it convey 19 cents of land under Ex.A-1. The difference in the document and on the field is nearly 80%. Therefore, the word "thereabouts" used with reference to property can only be for a small variation, but not a huge variation of 80%. The Lower Appellate Court ought to have considered the fact of the case and the recital in Ex.A-1 and ought to have held that the extent mentioned in the documents will prevail over the boundaries. In support of his submission, the learned counsel for the appellant relied upon the meaning of the word “thereabouts” given in Blacks law dictionary and the judgment of this Hon'ble High Court in [Dina Malar Publications, .v. The Tiruchirapalli Municipality (Sengottuvelan, J). in 97 LW P 368] . which is extracted under:-
“.....The use of the words “thereabouts” is intended to cover any slight variation on either side. Merely because the words 'or thereabouts' occur in Ex.A-1 sale deed, it cannot be contended that the parties intended to convey the entire extent covered by measurement. The term 'thereabouts' can be said to indicate a difference of one or two square feet more or less if the extent mentioned in the sale deed and not 300 sq.ft. By any stretch of imagination. Because of the clear mention of the measurement as 60' X 35' both in Ex.B-1 and B-2 and also in Ex.A-1, this contention of the learned counsel for the appellant has to be rejected.”
9. Per contra, the learned Counsel appearing for the respondent submitted that the defendant consciously sold away his entire property in S.No.137/1 along with Well and Coconut Trees for value consideration and the boundaries are specifically mentioned in the sale deed. Since there was uncertainty regarding the extent of the property it has been mentioned as "more or less" 11 cents. The defendant having conveyed the entire property without retaining even an inch of land, after coming to know that on ground there is 19 cents of land, has trespassed into the land and put up a fence annexing the Well and Coconut Trees taken away a portion of his land.
10. He further contended that right from 1970, the day on which the property was convey to the plaintiff, the entire extent of 19 cents is in his enjoyment of the plaintiff only after the decree passed in the partition suit, the defendant has encroached upon the land by taking advantage of the extent mentioned in Ex.A-1.
11. The point to be decided is that whether in Ex.A-1, the extent will prevail over the boundary or otherwise. The suit schedule is mentioned as under:
“V”brl;oa{y;
ehfg;gl;odk; hp$p!;l;nurd; o!;ohpf;l; jpUthU:h; rg; hp$p!;l;liur; nrh;e;j ehfg;gl;odk; (jw;bghGJ jpUthU:h;) jhY}f;fh. 10 ePh;. moaf;fk';fyk; tl;lk;. nkw;go fpuhkj;jpy; ej;jk;$hhp hp?rh;nt 137?1 tlg[wk; bjUt[f;F bjw;F. fpHf;F tha;f;fhYf;F nkw;F. g[f;fl;o E}h;fdp uht[j;jh; tifawh tPL. kidf;F tlf;F. ,jw;Fs;gl;lJ/ brz;L 19?k; Tiuf; fl;olk; cs;glt[k; fpzW 10 bjd;id ku';fs; cs;glt[k;/ “gp” brl;oa{y;
ehfg;gl;odk; hp$p!;l;nurd; o!;ohpf;l; jpUthU:h; rg; hp$p!;l;liur; nrh;e;j ehfg;gl;odk; (jw;bghGJ jpUthU:h;) jhY}f;fh. 10 ePh;. moaf;fk';fyk; tl;lk;. nkw;go fpuhkj;jpy; ej;jk;$hhp hp?rh;nt 137?1 tlg[wk; bjUt[f;F bjw;F. fpHf;F tha;f;fhYf;F nkw;F. g[f;fl;o E}h;fdp uht[j;jh; tifawh tPL. kidf;F tlf;F. ,jw;Fs;gl;lJ/ 19 brz;L !;jyj;jpy; fPH;g[wkhf ,Ugf;fKk; bjd;tly; 100 mo. fpHnky; Rkhh; 36mo Mf Rkhh; 8 brz;Lk;. mjpy; ml';fpa 10 bjd;id ku';fSk; fpzWk;. gpujpthjpahy; Mf;fpukpj;J nghlg;gl;oUf;fpwkhl;Lf; bfhl;oif ePf;fp/
12. The sale deed Ex.A-1 admitted by both the parties. The description of the property conveyed is as under.
"ehfg;gl;ozk; hp$p!;nurd; o!;l;hpf;l; jpUthU:h; rg;hp$p!;jiur; nrh;e;j ehfg;gl;ozk; jhY}f;fh 10 ePh;moaf;fk';fyk; tl;lk; nkw;go fpuhkj;jpy; epyk;thhp hPrh;nt 137/1 tlg[wk; bjUt[f;F bjw;F fpHf;F tha;f;fhYf;F nkw;F g{f;fl;o ehh;fdpuht[j;jh; tifauh tPL kidf;F tlf;F ,jw;Fs;gl;lJ/ nkw;go gjpnehU brz;Lk; “fk;kp $h!;jpa[s;glt[k;” mjpYs;s nkw;go fl;olk; cs;glt[k; nkw;go kidf;Fj; bjUt[ fPH; rufpy; cs;sJ/"
13. The learned counsel for the appellant drew the attention of this Court to the statement of valuation under Ex.A-1 and emphasised that the property was valued only for 11 cents at the rate of Rs.275/- per cent and not for 19 cents. Therefore, it was consciously agreed by the parties to sell only 11 cents. Therefore, the finding of the First Appellate Court is incorrect.
14. The intention of the parties is very clear from the deed. There is no ambiguity about the property which is conveyed under Ex.A-1 The expression used in the sale deed is not "thereabouts", but "more or less" there is a vast difference in meaning and connotation of these two expressions. "Thereabouts" (Rkhh;) "more or less" (fk;kp $h!;jp).
On going through Ex.A-1, this Court finds that the defendant has used the expression 'less or more' (fk;kp $h!;jp) not only in the description of the property, even in the recital he has mentioned that he is conveying under mentioned natham land 'less or more' including Trees:
",jdoapy; fz;l ej;jk; $hhp epyj;ija[k; mjd; "fk;kp $h!;jpa[s;glt[k;" mjpYs;s gy tpUf;r';fs; cs;glt[k; ehd; j';fSf;F Rj;jf;fpiuak; bra;J bfhLg;gjha; fpiuak; epr;rapj;Jf; bfhz;lJ rk;kjk;/ U:/4000-?
,e;j U:gha; ehyhapuKk; ehd; j';fsplk; buhf;fk; bgw;Wf; bfhz;ljw;F tpguk; ehsJ njjpapy; vd; FLk;gr;rpyt[f;fhf ehd; j';fsplk; buhf;fk; bgw;Wf; bfhz;l tifapy; vz; gj;jhfp tpl;lJif :U:/1000-?(Mapuk; U:gha;) ghf;fpj;Jif rhrd ghf;fpf;fhf j';fs; ngUf;F vd;dhy; vGjpf; bfhLf;fg;gl;l gpuhk;rhp nehl;od; K:yk; vz; gj;jhdJ U:/3000-?(K:thapuk;) mf;fpdk; nkw;go nkny fz;l tptug;go U:/4000-? (ehyhapuk; U:gha[k;) vd;gj;jhfp tpl;lg;goahy; ,jdoapy; fz;l ejjk; $hhp epyj;ija[k; mjd; brl;oy; bkz;L mst[ "fk;kp[ $h!;jp” a[[s;glt[k;/”
ehfg;gl;ozk; hp$p!;l;nur;d o!;l;hpf;l; jpUthU:h; rg;hp$p!;jiur; nrh;e;j ehfg;gl;ozk; jhY}f;fh 10 ePh;moaf;fk';fyk; tl;lk; nkw;go fpuhkj;jpy; epyk; thhp hP/rh;nt 137/1 tlg[wk; bjUt[f;F bjw;F fpHtha;f;fhYf;F nkw;F g{f;fl;o ehh;fdpwht[j;jh; tifawh tPL kidf;F tlf;fpjw;Fs;gl;;lJ/ nkw;go 11 gjpnehU brz;Lk; fk;kp $h!;jp[a[s;glt[k; mjpYs;s ciuf;fl;olk; cs;glt[k; nkw;go kid eLj;bjUt[ fPH; rufpy; cs;sJ/”
15. From the recital and description of the property in Ex.A-1 it is very clear that both the buyer and the seller were not certain about the actual extent of the property. Therefore, the expression "less or more" has been employed and they have given importance to the boundaries mentioned in the property and has relied upon the boundaries.
16. The case of the defendant is that out of 19 cents in S.No.137/1, only 11 cents was conveyed under Ex.A-1, and remaining portion on the East was retained by him and it is in his possession and enjoyment. If that is true, in the sale deed Ex.A-1, the Eastern boundary should have been show the land retained by the Vendor. But the Eastern boundary shown as channel (tha;fhy;). Therefore, the Lower Appellate Court has rightly pointed out that in the description of the property sold under Ex.A-1 the boundaries was prevail over the extent. He arrived at the conclusion that the defendant after convey his entire land in S.No.137/1 after knowing about the actual extent, has trespassed into the plaintiff land and as put up a Wall annexing the Well and Coconut trees which he has already conveyed under Ex.A-1. The Lower Appellate Court had pointed out in his judgment, the defendant if he wanted to convey only 11 cents, then the words 'less or more' need not have used in the sale deed or need not have mentioned the four boundaries though he claims possession of the property has not produced any evidence to that effect.
17. Further to add the reasoning of the Lower Appellate Court, this Court also finds that the defendant has not only sold 11 cents of land under Ex.A-1, he has also sold a Well and Coconut trees in the land in S.No.137/1 bounded by the 4 specific boundaries. Now he is conveniently pleading that the plaintiff himself has removed the Coconut Trees and obliterated the Well, so as to make out a case that the Well and Coconut Trees which were conveyed under Ex.A-1 are not in the area mentioned in B Schedule.
18. In “Dinamalar Publication” case, the Court had an occasion to discuss about the expression "thereabouts" to determine whether boundaries or the extent in the document should prevail when there is discrepancy or dispute. That is a case where the appellant purchased 2100 sq.feet of land measuring 60/35 which was orally assigned by the Municipality to the Vendor of the appellant. Four boundaries were also provided in the sale deed along with extended measurement. It so happened that on a later point of time when the property was measured it was found that the actual measurement of the property was 60/45 extent of 2400 sq.ft and not 60/45 sq.ft. extent of 2100 sq.ft as mentioned in the sale deed. In this context, after discussing the other judgments, the Court held that no doubt in the sale deed four boundaries are given, but the measurement of the properties given as 2100 sq.ft. The intention of the buyer and the seller was only to convey 2100 sq.ft. of land measuring 60/35 feet. Therefore, when there is no ambiguity prevail in the extent only but not the boundary. In the said context, the trial court has discussed about the word “thereabouts” in the following words.
“.....The use of the words “thereabouts is intended to cover any slight variation on either side. Merely because the words 'or thereabouts' occur in Ex.A-1 sale deed, it cannot be contended that the parties intended to convey the entire extent covered by the four boundaries in the sale deed which is 300 sq.ft. In excess of the area covered by measurement. The term 'thereabouts' can be said to indicate a difference of one or two square feet more or less if the extent mentioned in the sale deed and not 300 sq.ft. by any stretch of imagination. Because of the clear mention of the measurement as 60' x 35' both in Ex.B-1 and B.2 and also in Ex.A.1, this contention of the learned counsel for the appellant has to be rejected.”
19. First of all, in the sale deed Ex.A-1 which is a subject matter of this appeal, it is not the expression thereabouts (Rkhh;) is used, but the expression less or more (fk;kp $h!;jp) is used. This phrase is used not only in the description of the property, but also in the recital. Therefore, it is not the case that the parties to the document were certain about the extent or its measurement. It is other way they were not certain about the extent and measurement, but they were very certain about the boundaries. In such case, the boundary alone will prevail and not the extent. In this context, it is relevant to refer the judgment of our Hon'ble High Court report in 2016 [2] CTC 77 in the matter of N. Valliammal (dead) & N.Nagalingam .Vs. M.Kanniah and Others, wherein, the learned judge has pointed out the reason for providing boundaries in a document which is extracted below:
“24. ............It is common knowledge that when a Suit is filed for declaration of title and for Permanent Injunction, the property should be identified specifically. If the property could not be identified, then the Decree which may be passed by the Court will be unworkable. The Decree passed by any Court in respect of the property, which has not been described would lead to further confusion because, the parties may not be in a position to obey the Decree of the Court. That is the reason why the law expect that the Suit property should be described in an identifiable manner.
25.The learned Counsel would further submit that the Advocate Commissioner's Report would go to show that more extent than 1 acre 21 cents has been sold by the Power Agent of Mrs.N.Valliammal and her sons. It may be true. But, as I have already pointed out, it is not the extent of the land prevail upon four boundaries but, it is only four boundaries, which will prevails upon the extent. Therefore, this argument also does not persuade me at all.”
20. In Dina Malar case, the learned Judge has referred the following four judgments which is also necessary to arrive at right conclusion in this case.
1. In Subbayya Chokkilian .vs. Maniam Muthiah Gounden, a Bench of this Court held as follows:
“...that ordinarily when a piece of land is sold with definite boundaries, unless it is clear from the circumferences surrounding the sale that a smaller extent than what is covered by the boundaries was intended to be sold, the rule of interpretation is that boundaries must prevail as against the measurements”.
2. In Siviseshamuthu .vs. Gopalakrishnan, Ramakrishnan J., held as follows:-
“Where the property sold is part of a definite survey number and in the sale deed exact boundaries of the part sold are given and the area mentioned is only approximate, the description by boundaries should prevail in ascertaining the actual property sold under the document”
3. In P.K.A.R.C.O.S.Society, .vs. Govt., of Palestine, held as follows:
“it was held that in construing a grant of land, the description by fixed boundaries is to be preferred to a conflicting description by area. The statement as to area is to be rejected as false demoniratio”.
4. In Church of S I.T.A. .v. Raja Ambrose, Balasubramanyan.J, held as follows:-
“...if the deed in question sets out the boundaries of the property conveyed then those boundaries will have to be accepted as a clear reflection of the intention of the mortgagor and they will conclude not only the exact position of the property conveyed, but also its true extent. The boundaries given in the deed will also, in such cases, prevail over the measurements given in the deed, if those are given as a approximations”.
21. The judgment of our Hon'ble High Court report in 2007 [1] L.W.706 in Kolandasamy Gounder .Vs. Thirumalai Gounder and another held as follows:
“...In case of doubtful varying extents in the documents of title relating to the property boundaries should be preferred to the extent. Only in the absence of definite material to show the actual extent intended to be sold the boundaries should out-weigh the doubtful extent mentioned in the document. If the recitals in the document and the circumstances of the case shows that a lesser extent only was conveyed than the area covered by boundaries and there is clear evidence as to the intention of the parties with reference to the extent conveyed then the extent prevail over the boundaries.” (Emphasis added)
22. In the light of the above discussion, this Court finds no error in the judgment of the Lower Appellant Court. The extent of the land is not specifically mentioned in Ex.A-1 as contended by the learned counsel for the appellant. The extent is qualified with the words 'less or more' which only indicates the uncertainty about the extent, by both the seller and the buyer. Therefore, they have mentioned the four boundaries and ever since, the execution of Ex.A-1 has been acted upon and property has been enjoyed by the plaintiff in entirety till a portion of the land encroached by the appellant's herein after the preliminary decree passed in the partition suit among the family members of the defendant's. Likewise, it is not the word "thereabouts" used in the sale deed Ex.A-1. It is expressed "less or more" employed in the document. The interpretation about the word "thereabouts" cannot apply to the expression "more or less". Since the defendant have unlawfully encroached upon the B Schedule property and had put up a Wall including the Well and Coconut trees alienated under the sale deed to the plaintiff. The defendant is bound to remove the Wall and handed over the possession. Therefore, the plaintiff has prove the title as well as the possession to get the relief of declaration and mandatory injunction. Accordingly the Substantial Question of Law is answered. In the result, the Second Appeal is dismissed. No Costs.
.01.2017 KP Index:yes/No Internet:yes KP To
1. The Principal Sub Court, Nagapattinam.
2. The District Munsif Court, Tiruvarur.
DR.G.JAYACHANDRAN.,J.
KP Judgement in S.A.No.912/1999 24.02.2017 Pre-Delivery Judgement in S.A.No.912 of 1999 To The Hon'ble DR.G.JAYACHANDRAN.,J.
Most Respectfully submitted PA: K.P http://www.judis.nic.in