Madras High Court
Balusamy Chettiar vs Abdul Razack on 14 July, 2011
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14/07/2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM Civil Miscellaneous SECOND Appeal No.10 of 2010 1.Balusamy Chettiar 2.Govinda Subramanian 3.Ayyappan 4.Natarajan 5.Naganandan 6.Mahalakshmi 7.Lakshmiandal 8.Indira .. Appellants Vs. 1.Abdul Razack 2.Sethu Achi 3.Sundaram Chettiar .. Respondents Civil Miscellaneous Second Appeal has been filed under Order XLIII, Rule 1 read with Section 100 of the Code of Civil Procedure, 1908, against the fair and decretal order dated 07.08.2009 passed in Civil Miscellaneous Appeal No.2 of 2006 by the Sub Court, Pudukkottai reversing the fair and decretal order dated 27.04.2004 passed in Execution Application No.264 of 2001 in Execution Petition No.174 of 1999 in Original Suit No.39 of 1981 by the Principal District Munsif Court, Pudukkottai. !For Appellant .. Mr.A.Arumugam ^For Respondent .. Mr.N.Balakrishnan No.1 For Respondents .. No appearance 2 and 3 :JUDGMENT
Challenge in this Civil Miscellaneous Second Appeal is to the order passed in Civil Miscellaneous Appeal No.2 of 2006 by the Sub Court, Pudukkottai, wherein the order passed in Execution Application No.264 of 2001 in Execution Petition No.174 of 1999 in Original Suit No.39 of 1981 by the Principal District Munsif Court, Pudukkottai is reversed.
2. The appellants herein as plaintiffs have instituted Original Suit No.39 of 1981 on the file of the Principal District Munsif Court, Pudukkottai for the reliefs of declaration, mandatory injunction and alternatively for recovery of possession, wherein an executable decree has been passed and the same has been put into execution in Execution Petition No.174 of 1999. During pendency of the same, the first respondent herein as petitioner has filed Execution Application No.264 of 2001 under Order XXI, Rule 97 of the Code of Civil Procedure, 1908. The Executing Court after considering the available evidence on record has dismissed the same. Against the dismissal order passed by the Executing Court, the petitioner therein as appellant has filed Civil Miscellaneous Appeal No.2 of 2006 on the file of the first appellate Court.
3. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has allowed Civil Miscellaneous Appeal No.2 of 2006 and thereby set aside the order passed in Execution Application No.264 of 2001 by the Executing Court and ultimately allowed the petition filed in Execution Application No.264 of 2001. Against the order passed by the first appellate Court, the present Civil Miscellaneous Second Appeal has been preferred at the instance of the respondents 1 and 4 to 10.
4. In the petition filed in Execution Application No.264 of 2001, it is averred that the property, which has been described as 'A B C D E F' in the plan is originally belonged to the father of the petitioner and the same has been shown as 'A' schedule. The first respondent has purchased the portion, which has been described as 'A D E F' under a registered sale deed dated 22.10.1975 and the same has been shown as 'B' schedule. The property which has been shown as 'C' schedule has not been sold under the registered sale deed dated 22.10.1975 and the same is comprised in T.S.No.862/2. The property which has been sold under the registered sale deed dated 22.10.1975 is now comprised in T.S.No.862/3. Now the respondents have obtained a decree in Original Suit No.39 of 1981 in respect of 'B' and 'C' schedules for the reliefs mentioned therein without impleading the present petitioner. The present petitioner is having right, title and interest over the same. Under the said circumstances, the present petition has been filed for the relief sought for therein.
5. On the side of the contesting respondents, a detailed counter has been filed, wherein the claim made on the side of the petitioner has been candidly denied.
6. As adverted to earlier, the Executing Court has dismissed the petition. But the first appellate Court has allowed the same.
7. The only point that has now winched to the fore in the present Civil Miscellaneous Second Appeal is as to whether the order passed in Civil Miscellaneous Appeal No.2 of 2006 by the first appellate Court is perfectly correct or the same requires interference?
8. At the time of admitting the present Civil Miscellaneous Second Appeal, the following substantial questions of law have been formulated for consideration:
a) Whether the first appellate Court in reversing the well reasoned fair and decretal order of the trial Court without correctly appreciating and applying the well settled legal preposition that the boundaries prevail over the measurements?
b) Whether an application under Order 21 Rule 97 lies at the instance of the son of the vendor when the vendor sold the property to successful plaintiff, when the claimant is not in possession of the property?
c) Whether an application under Order 21 Rule 97 C.P.C. can be successfully mentioned by a person who relies on a oral release in respect of immovable property, when such a release is prohibited under law and that too when such release is not proved and not supported by consideration?
d) Whether the failure of the first appellate Court to consider the Judgment in Second Appeals, S.A.No.315 of 1984 and S.A.No.1811 of 1986 in the proper perspective as per Section 13 of Evidence Act has resulted in a legally untenable by the first appellate Court?
e) Whether the failure of the first appellate Court to frame proper points for the consideration for this Civil Miscellaneous Appeal has vitiated the ultimate decision in the Civil Miscellaneous Appeal?
9. On the side of the appellants the following additional substantial question of law has been raised for consideration:
a) Whether the application under Order 21, Rule 97 C.P.C. is legally barred for the reason that the suit filed by the applicant in O.S.No.282 of 2001 on the file of Sub Court, Pudukkottai for the very same purpose was not pressed and no permission was obtained from the trial Court to file an application under Order 21, Rule 97 C.P.C. and in such circumstances whether present application under Order 21, Rule 97 C.P.C. is barred under Order 23, Rule 1 of C.P.C. r/w.
Section 141 of C.P.C. and on the principles of estoppel and general principle of res-judicata?
10. Before contemplating the rival submissions made on either side, it would be apropos to look into the following admitted facts and also the main contentions mentioned in the petition filed in Execution Application No.264 of 2001.
11. It is an admitted fact that Execution Application No.264 of 2001 has been filed under Order XXI, Rule 97 of the Code of Civil Procedure, 1908. It is also equally an admitted fact that the contesting respondents as plaintiffs have filed Original Suit No.39 of 1981 for the reliefs declaration, mandatory injunction and alternatively for recovery of possession, wherein an executable decree has been passed and the same has been put into execution in Execution Petition No.174 of 1999. During pendency of the same, the petition in question has been filed under Order XXI, Rule 97 of the Code of Civil Procedure, 1908.
12. In the petition filed in Execution Application No.264 of 2001, it has been clearly stated that on 22.10.1975, the father of the petitioner has executed a sale deed in favour of the first respondent, viz., Brahadambal. The specific contention of the petitioner is that the sale deed dated 22.10.1975 does not cover the disputed property, which has been shown as 'C' schedule in the plan, which has been annexed with the petition.
13. The Executing Court has rejected the contention urged on the side of the petitioner. But the first appellate Court has accepted the contention putforth on the side of the petitioner.
14. The learned counsel appearing for the appellants has laconically contended that the deceased first respondent viz., Brahadambal has purchased the entire extent of original T.S.No.862 under a registered sale deed dated 22.10.1975 and since the owner of T.S.No.863 has denied her title and also put up some construction, Original Suit No.39 of 1981 has been instituted for the reliefs of declaration, mandatory injunction and alternatively for recovery of possession, wherein an executable decree has been passed and the same has been put into execution in Execution Petition No.174 of 1999 and further in the sale deed dated 22.10.1975, one Chinnammal @ Lakshmiammal has been shown as western boundary owner and her property is comprised in T.S.No.863 and therefore the vendor of the sale deed dated 22.10.1975 has not retained any portion in the western side and the disputed property is nothing, but strip of land situates in the western side of Original T.S.No.862 and the Executing Court after considering the clear four boundaries given in the sale deed dated 22.10.1975 has rightly dismissed the petition, but the first appellate Court without considering the clear four boundaries given in the sale deed dated 22.10.1975 has erroneously allowed the petition and therefore the order passed by the first appellate Court is liable to be interfered with.
15. In order to fizzle out the contention urged on the side of the appellants, the learned counsel appearing for the first respondent has also equally contended that even though in the sale deed dated 22.10.1975 the said Chinnammal @ Lakshmiammal has been shown as western boundary owner, clear east- west measurement has been given as 28 feet 3 inches and the disputed property has been shown as 'C' schedule in the plan and the same is nothing, but a strip of land, which situates in the portion of Original T.S.No.862 and the Executing Court without considering the east-west measurement given in the sale deed dated 22.10.1975 has erroneously dismissed the petition, but the first appellate Court after considering the east-west measurement in the sale deed dated 22.10.1975 coupled with other evidence has rightly allowed the petition and therefore the order passed by the first appellate court need not be interfered with.
16. Along with the present petition, a Rough Plan has been appended with. The entire property has been shown as 'A' schedule and the property alleged to have been sold under the sale deed dated 22.10.1975 is shown as 'B' schedule and the disputed property is shown as 'C' schedule. In the plan, it has been mentioned that the property mentioned in the sale deed dated 22.10.1975 is now comprised in T.S.No.862/3 and likewise the disputed property is now comprised in T.S.No.862/2.
17. A certified copy of the sale deed dated 22.10.1975, which stands in the name of the deceased first respondent viz., Brahadambal has been marked as Ex.A.1. Under Ex.A.1, the property comprised in T.S.No.862 has been sold. Further in Ex.A.1 clear four boundaries have been given. On the southern side, a channel is in existence, on the northern side, a drainage is situate, on the eastern side the property of one Saroja is situate and on the western side the property of Chinnammal @ Lakshmiammal is situate.
18. It is seen from the records that original T.S.No.862 has been subsequently divided as 862/1,2 and 3. The disputed property is comprised in T.S.No.862/2. The contention of the first respondent/petitioner is that the property mentioned in Ex.A.1 is now comprised in T.S.No.862/3 and the same does not include the disputed property, which is comprised in T.S.No.862/2.
19. It has already been stated that in Ex.A.1 clear four boundaries have been given. Now the only factual aspect is whether the vendor of Ex.A.1 has intended to sell the entire extent comprised in Original T.S.No.862 in favour of the deceased first respondent viz., Brahadambal. Admittedly, in Ex.A.1 both clear four boundaries as well as east-west and north-south measurements have been given. Since in Ex.A.1 clear four boundaries as well as measurements have been given, the Court has to look into or infer the real intention of the vendor.
20. At this juncture, it would be condign to look into the decision in Kamakshi Ammal v. R.Ranganathan Chettiar and another reported in 82 - L.W. - 142, wherein this Court has dealt with a similar question.
21. It is a pristine and also archaic principle of law that if in a document in dispute clear four boundaries have been given, four boundaries would prevail over area. In the decision referred to earlier, it has been held like thus:
"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 the grant, having due regard to the law of evidence. The problem can arise only when there is inconsistency and both the area and the 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 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".
22. Even from a cursory look of the decision referred to supra, it is made clear that in a deed in question, both extent and boundaries are given, the Court has to determine the real intention of the parties at the time of grant. The specific stand taken on the side of the first respondent/petitioner is that his father has not sold the property, which has been mentioned as 'C' schedule in the plan. But as stated earlier one Chinnammal @ Lakshmiammal (owner of T.S.No.863) has been shown as western boundary owner in Ex.A.1. If really, the father of the first respondent/petitioner has not intended to sell the disputed property ('C' schedule) under Ex.A.1, definitely some recitals would have found place in Ex.A.1. But instead the said Chinnammal @ Lakshmiammal (owner of T.S.No.863) has been shown as western boundary owner. To put it in nutshell, at the time of executing Ex.A.1, the father of the first respondent/petitioner has not intended to retain any portion of the land in Original T.S.No.862. Simply because in Ex.A.1, the east-west measurement has been given as 28 feet 3 inches, as per the dictum given by this Court, which has been referred to earlier, it is highly impossible to come to a conclusion that the disputed property ('C' schedule) mentioned in the plan has not been included in Ex.A.1. Admittedly, Ex.A.1 has been executed by the father of the first respondent/petitioner, wherein clear four boundaries have been given. Since clear four boundaries have been given in Ex.A.1, the four boundaries given in Ex.A.1 would prevail over area.
23. At this juncture, the Court has to look into Section 17 of the Indian Evidence Act, 1872 and the same reads as follows:
"Admission defined.- An admission is a statement [oral or documentary or contained in electronic form], which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned".
24. In the instant case, in Ex.A.1 clear four boundaries have been given, wherein it has been specifically mentioned that the property of Chinnammal @ Lakshmiammal is situate on the western side of the property conveyed therein. It has already been pointed out that the father of the first respondent/petitioner has not retained any portion of Original T.S.No.862. If really, he has retained any portion in the western portion of T.S.No.862, definitely the same would have been mentioned in Ex.A.1. Further he has clearly admitted in Ex.A.1 by way of giving clear four boundaries that the property conveyed under Ex.A.1 is situate immediately on the eastern side of the property of Chinnammal @ Lakshmiammal. Under the said circumstances, the Court can very well come to a conclusion that the father of the first respondent/petitioner has made clear admission under Section 17 of the Indian Evidence Act, 1872. Therefore viewing from any angle, the Court cannot come to a conclusion that Ex.A.1 does not cover the disputed property, which has been described as 'C' schedule in the plan.
25. The executing Court after considering the four boundaries given in Ex.A.1 coupled with other evidence has rightly dismissed the petition. But the first appellate Court without considering the correct legal position involved in the present case and also on the basis of nebulous evidence has set aside the order passed by the Executing Court. In view of the discussion made earlier, this Court has found considerable force in the contention urged on the side of the appellants and the contention urged on the side of the first respondent/petitioner is really sans merit and further the substantial questions of law raised on the side of the appellants are really having substance and altogether the present Civil Miscellaneous Second Appeal is liable to be allowed.
26. On the side of the first respondent/ petitioner, an inert attempt has been made to the effect that Ex.A.2 is nothing, but a blue print submitted on the side of the contesting respondents, wherein also east-west measurement has been given as 28 feet 3 inches and on that score also the contention of the first respondent/petitioner can be accepted.
27. It has already been discussed in many places that in Ex.A.1, Chinnammal @ Lakshmiammal has been shown as western boundary owner. As per the decision referred to supra, the intention of the vendor as well as vendee has to be ascertained on the basis of four boundaries given in the document in question. In the instant case, since in Ex.A.1, the said Chinnammal @ Lakshmiammal has been shown as western boundary owner, the vendor of Ex.A.1 has not retained any portion in Original T.S.No.862. Probably in Ex.A.2 without knowing the east-west measurement of middle portion of Original T.S.No.862, east-west measurement might have been given as 28 feet 3 inches and that itself would not militate the contention urged on the side of the contesting respondents. Therefore the residual attack made on the side of the first respondent/petitioner also goes out without merit.
28. In fine, this Civil Miscellaneous Second Appeal is allowed without costs and the order passed in Civil Miscellaneous Appeal No.2 of 2006 by the Sub Court, Pudukkottai is set aside and the order passed in Execution Application No.264 of 2001 in Execution Petition No.174 of 1999 in Original Suit No.39 of 1981 by the Principal District Munsif Court, Pudukkottai is restored.
smn To
1.The Sub Court, Pudukkottai.
2.The Principal District Munsif Court, Pudukkottai.