Madras High Court
Mohammed Yusuf vs Ameer Maideen on 21 January, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21/01/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.742 of 2000 1.Mohammed Yusuf 2.Ayisha Ammal ... Appellants/Defendants Vs Ameer Maideen ...Respondent/Plaintiff Prayer Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 03.11.1999 passed in A.S.No.118 of 1999 on the file of the Principal District Judge, Pudukottai reversing the judgment and decree dated 25.06.1999 passed in O.S.No.50 of 1997 on the file of the learned District Munsif, Aranthangi. !For Appellants ... Mr.K.Vijayaraghavan ^For Respondent ... Mr.M.Palanisamy :JUDGMENT
This appeal is directed as against the judgment and decree dated 03.11.1999 passed in A.S.No.118 of 1999 on the file of the Principal District Judge, Pudukottai reversing the judgment and decree dated 25.06.1999 passed in O.S.No.50 of 1997 on the file of the learned District Munsif, Aranthangi.
2. The parties are referred to hereunder in the same order as they were arrayed before the trial Court.
3. Broadly but briefly the case of the plaintiff could be portrayed thus:
The plaintiff, viz., Ameer Maideen is the father of the second defendant viz., Ayisha Ammal and father in law of the first defendant viz., Mohammed Yusuf. The first defendant executed Ex.B1 the settlement deed dated 30.05.1977 (Ex.A2 is the certified copy of Ex.B1) in favour of the defendants.
4. According to the plaintiff, he settled only an extent of half (1/2) cent of manai measuring 14 1/2 feet from east to west and 15 feet from south to north and also the building situated there on measuring an extent of 15 feet x 14 feet (210 sq. feet), out of large extent of land belonged to the plaintiff. The defendants without any manner of right attempted to trespass into the plaintiff's remaining part of the manai situated to the east of the said property settled. Accordingly, he filed the suit praying for injunction and alternatively for possession relating to the property situated to the east of the property settled.
5. Per contra, denying and refuting, challenging and impugning the contentions of the plaintiff, the defendants filed the written statement, which would run thus:
As per the settlement deed referred to supra, the plaintiff settled not only half cent of manai, but also the remaining part of the manai situated to the east of the said half cent as the boundaries would clearly evidence the same. Accordingly, they prayed for the dismissal of the suit.
6. The trial Court framed the relevant issues and during trial, the plaintiff examined himself as P.W.1 and Exs.A.1 to A.4 were marked. On the side of the defendants, the first defendant was examined as D.W.1 and Exs.B.1 to B.6 were marked.
7. The trial Court ultimately dismissed the suit.
8. Being aggrieved by it, the plaintiff preferred the appeal in A.S.No.118 of 1999 before the Principal District Court, Pudukottai, which reversed the judgment and decree of the trial Court and decreed the original suit.
9. Challenging the first appellate Court's Judgment and decree, the defendants filed this appeal on the various grounds inter-alia thus:
The first appellate Court without any valid grounds reversed the dismissal of the suit by the trial Court. The settlement deed was not interpreted properly by the first appellate Court. Despite the boundaries referred to in the settlement deed clearly indicating that the property was gifted by the plaintiff to the defendants, yet the first appellate Court has not chosen to dismiss the appeal. Accordingly, he prayed for setting aside the Judgment and decree of the first appellate Court and for restoring the findings of the trial Court.
10. This court framed the substantial question of law at the time of admitting the second appeal as follows:
"(a) On the facts and circumstances, is it correct for the Lower Appellate Court to hold that the plaintiff is entitled to suit properties when the subject matter of suit is included in the settlement deed executed in favour of appellants by the plaintiff? and
(b) Was it correct for the Lower Appellate Court to hold that the measurements alone will prevail when the boundary recitals clearly show that the suit property was settled to the appellants and whether the principle boundary recitals alone will prevail are inapplicable to the facts of the case?
11. During trial, the learned counsel for the defendants suggested additional substantial question of law to be framed as that would help to render a judgment in this case more appropriately.
12. Heard both sides.
13. I am of the considered opinion that the following additional substantial question of law also could be framed as that would help to render a Judgment in this case more appropriately.
"Whether the first appellate Court was not justified in holding that the defendants have not acquired prescriptive title over suit property by adverse possession?"
14. Heard both sides in entirety.
15. The substantial questions of law are taken together as they are interlinked with each other.
16. The learned counsel for the defendants would submit that the boundaries will prevail over measurements in matters of this nature, in addition to stressing that the settlement deed was effected by the plaintiff in favour of his daughter and his daughter's husband, the defendants herein, for the purpose of enabling them to have social support as the settlor felt that the settlees helplessly were living as a separate family and that they should be conferred with some material social support; that having the said object in mind also, if the said deed is interpreted, it could easily be construed that the boundaries in this case would prevail over the measurement.
17. He would also placing reliance on the description of property in Ex.B1 would submit that in a separate para, the description of the entire manai intended to be settled was described by specifying the boundaries and the built portion is shown as the one situated in that manai and accordingly the settlor intended the entire manai within those boundaries and the building thereon to be enjoyed by the defendants whereas the learned counsel for the plaintiff would submit that linear measurements as found detailed in the schedule of property in Ex.B1 would prevail over the boundaries; erroneously the eastern boundary has been described and that it does not mean that the settlor intended the entire extent of land upto the eastern boundary found described in the schedule of Ex.B1 as the subject matter of settlement. It is therefore clear that the interpretation of Ex.B1 as to whether the boundaries or the linear measurements would prevail for adjudicating this case, gained significance in this case
18. The schedule of property as found set out in Ex.B1 is extracted here under for ready reference and appreciation:
"g[Jf;Bfhl;il khtl;lk;, i& Mtz gjpt[ khtl;lk; kzBkyFo Jiz gjpt[ khtl;lk; mwe;jhA;fp tl;lk; .. bfhof;Fsk; fpuhkk; gplhif Bfhl;lg;gl;lzj;jpy; ej;jk; g[yk; vz; 219 eph; V 72 br 84y; rhjpaoapy; fpHBkyo 14 1/2 a[k;, bjd;tlyo 15k; mst[s;s kid nlk; brz;l; 1/2 miu brz;l;Lf;F ehd;bfy;iy tpguk;:
re;J ghijf;F bjw;f;F BrJ Buhl;Lf;F fpHf;F Fr;R BfhHp kPuhrh tPl;Lf;F Bkw;;f;F ehd; brhe;j ... itj;jpUf;fpw kidf;F tlf;F, njw;Fs;gl;l kid nlKk; i& kid nlj;jpy; rhjpaoapy; 15X14 f;F 210 rJu mo mstpy; kz; Rth; gidkuk; bjd;dA;fPj;J bfhz;L 60 tUlA;fSf;F Kd;g[ floapUf;Fk; gHa fhiu fl;ol;k B.P.9/3 ePh; c;ss Bkw;f;F ghh;j;j fil fl;llk; cs;glt[k;.
njd; bgUkhdk; i& kid nlk; U.150/-. fl;ll kjpg;g[ U.2850. Mf U.3000-00".
19. A deep scrutiny of the aforesaid description of the property would demonstrate that the settlor intended the manai measuring an area of half cent alone to be settled and in the first paragraph extracted above the linear measurements of the manai intended to be settled is specified as 14 1/2 feet from east to west and 15 feet from south to north and for that linear measurements only the description was given in the para below that para.
"ej;jk; g[yk; vz; 219 eph; V 72 br 84y; rhjpaoapy; fpHBkyo 14 1/2 a[k;, bjd;tlyo 15k; mst[s;s kid nlk; brz;l; 1/2 miu brz;l;Lf;F ehd;bfy;iy tpguk;:
re;J ghijf;F bjw;f;F BrJ Buhl;Lf;F fpHf;F Fr;R BfhHp kPuhrh tPl;Lf;F Bkw;;f;F ehd; brhe;j ... itj;jpUf;fpw kidf;F tlf;F, njw;Fs;gl;l kid nlKk;".
20. However, while specifying the eastern boundary instead of specifying "to the west of the property of the settlor's remaining manai", it is specified as the west of "Kuchu Kozhi Meera Sahib Maraikayar's property. In the third paragraph of the schedule of property once again the settlor detailed that in the aforesaid manai, so to say in the manai of 14 1/2 feet x 15 feet, the built portion measuring an extent of 14 feet x 15 feet (210 sq. feet) was also included as part of settlement. The description of boundaries also would show that to the south of the settled property, the settlor was owning his remaining property. It is therefore clear that the plaintiff owned a big flat and in that in the north-western corner, an extent of 14 1/2 feet x 15 feet manai with a building thereon was settled in favour of his daughter and his daughter's husband, the defendants herein.
21. The learned counsel for the plaintiff would convincingly and correctly argue that when linear measurements of the manai settled as well as linear measurements of the built portion there on are found set out, the question of referring to the boundaries does not arise at all. In support of his contention, he would rely on the decision of this Court in M.Rajagopal Mudaliar v. K.R.Venkataraman by power agent K.G.Ramanathan reported in (2002)1 M.L.J.529. An excerpt from it would run thus:
It has been held in Church of S.I.T.A. v. Raja Ambrose, (1978)2 M.L.J. 620, as follows:
"Where the deed sets out the extent and measurements correctly there can be no difficulty in determining the subject matter of the grant. But where no measurements are given or the extent mentioned in the deed is either vague or is only a rough and ready approximation, one has to look to other indications in the deed in order to fix the identity of the property which is the subject of the grant. If the deed in question sets out the boundaries of the property conveyed, then these boundaries will have to be accepted as a clear reflection of the intention of the grantor and they will concluded not only the exact positioning of the property conveyed, but also its true extent".
These decisions are applicable to the case on hand.
The lower appellate Court misdirected itself and although number of decisions were cited, they were not properly understood. When the respondent had purchased only 32 feet x 75 feet and there is no ambiguity in the measurements, it is not necessary to go into the question of boundaries or the intention of the parties. D.W.2 is the vendor of the appellant as well as the respondent and his evidence only supported the case of the appellant. There is no reason to discard the testimony of D.W.2. The boundary description in the other document was relied upon to show that Sankara Naidu could not have retained any property after conveying under Ex.A1. Simply because there was some omission in the reference of boundaries, it cannot be concluded that the vendor namely, D.W.2 had no right to convey the property. As adverted to, when the theory of adverse possession has been rejected by the lower appellate Court the case of the respondent mainly depends upon the sale deed, wherein a specific extent above has been conveyed and under the circumstance, the respondent is not entitled to claim more than that taking shelter under the boundaries. The finding of the lower appellate Court is based on mere surmise and conjecture and there was erroneous application of law and, as such, interference is called for".
22. It is therefore clear from the decision of this Court that when linear measurements are clearly found set out the question of referring to boundaries would not arise.
23. On the side of the plaintiff, one other decision of this Court has also been cited, Ramaiya Asari v. Ramakrishna Naicker alias Kollimalai Naicker and another reported in (2000)3 M.L.J.327. An excerpt from it would run thus:
"The question is whether the vendor of the appellant Ramaiya Asari retained any portion in the said Cadastre. According to the learned counsel for the appellant, this "Kammi-Jasthi" would take 7 1/4 kuzhies also. I can understand if it is "Kammi-Jasthi" by half kuzhi or one kuzhi not such a large extent as 7 1/4 kuzhies. It should also be noticed that Ramaiya Asari paid his vendor at the rate of Rs.70 per kuzhi only, for 40 kuzhies. It should be further noticed that Ramaiya Asari in the earlier proceedings had said that there was encroachment in the 40 kuzhies purchased by him. This would be evident from the judgment in A.S.No.11 of 1972 marked as Ex.B2. In the said judgment it is mentioned that the claim was for 40 kuzhies and the Court held that Ramaiya Asari had proved his title with regard to 40 kuzhies purchased by him. Only when there is dispute with regard to the extent, the boundaries can be taken into consideration. When Ramaiya Asari had purchased only 40 kuzhies on the basis of the sale deed in his favour, he cannot ask for anything more. The mere fact that the northern boundary had not been correctly described, would not show that he had purchased the additional 7 1/4 kuzhies also. One other aspect to be mentioned is that Ramaiya Asari has spoken to the fact that before he purchased the property he had the land measured by a Surveyor, that the Surveyor had given a report Ex.A3 that Ramakrishna Naicker, father of Ambigapathy, had encroached part of Cadastre No.742/2 on the northern side and that he was in possession of the same, but the vendor of Ramaiya Asair had not taken any steps to evict Ramakrishna Naicker from the encroachment. Thus, Ramaiya Asari was aware that the extent that was available for sale and actually sold and given possession of, was only 40 kuzhies. The lower appellate court has adverted to this aspect and held that Ramaiya Asari cannot claim anything more than 40 kuzhies. The decisions relied on by the learned counsel, in my view, have no application to the facts of the present case. In The Palestine Kupatam Bank Co-operative Society Ltd. v. Government of Palestine, A.I.R. 1948 P.C.207:62 L.W.21, it has been held that where in the case of a grant of land there is a conflict between the description by boundaries and the area mentioned in the grant, the principle of preferring the description by fixed boundaries to the conflicting description by area should be applied in the construction of the grant, and the statement as to area should be rejected as false demonstration".
24. The aforesaid decision of this Court would evince that when the intention of the executant is so clear that he intended to transfer only a limited extent to the settlees, they cannot claim more than that. In the aforesaid decision in Ramaiya Asari,s case cited supra this Court also referred to the previous decisions and accordingly arrived at the conclusion. Here, the trial Court erroneously misconstrued the term "Kammi-Jasthi" and consequently the trial Court felt that even though the measurements are less than the area covered by the boundaries, the term "Kammi-Jasthi" would cure that effect. However, the first appellate Court correctly interpreted Ex.A1 by pointing out that the defect is not a marginal one. Virtually if the boundaries specified in Ex.B1 are taken into consideration, they would cover an area of 1 are. Ex.B2, the form No.4, proposed patta would refer to the entire area as per the boundaries referred to in Ex.A1. If half cent is compared to 1 are, it is clear that the latter is larger by three times that that of the former. The paragraph No.7 of the Judgment of the first appellate Court clearly indicates the entire extent covered by the boundaries in Ex.B2 would constitute an extent 790 sq.ft., whereas 14 1/2 feet x 15 feet would come to 217 1/2 sq.ft. As such the term "Kammi-Jasthi" as found in Ex.B1 would not enure to the benefit of the defendants to claim the entire extent of 790 sq.ft. as per the boundaries quite disproportionate to the area of 217 1/2 sq. feet, which was intended as gift.
25. The learned counsel for the defendants would rely on the the decision of this Court in T.B.S.seela Bodi Baicker v. T.V.K.Kama Raja Pandiya Naicker reported in 1943-MLJ-622. an excerpt from it would run thus:
"(i) Description by boundaries leaving gaps here and there is by no means uncommon and the Court cannot reject such a description as of no significance and regard the instrument as involving no ambiguity latent or patent.
(ii) Where the intention of the parties in regard to the schedule of properties in a deed is to describe more particularly what was referred to by mere name in the body of the instrument that description by boundaries cannot be regarded as a general description and the name as a specific description so as to give effect to both by treating the specific as restricting the general.
(ii) Falsa demonstratio non nocet is a rule which enables a Court to disregard a part of a description, as false and inadvertently inserted, only after it has reached the conclusion that the property conveyed was that indicated by the other parts of the description. All rules of construction properly applicable to the case should be called in aid to ascertain the true meaning of the deed and it is only when they are exhausted and it is still not possible to reconcile the inconsistent parts of the description, that the maxim can be invoked as a last resort to justify the rejection of some part of it.
(iv) Even in the case of a modern instrument in which there is a latent ambiguity the rule of contemporanea expositio is applicable and evidence may be given of user under it to show the sense in which the parties to it used the language they have employed. Though the rule as a guide to the interpretation of documents is often accompanied with danger and great care must be taken in its application, it is no reason for not applying it if the circumstances of a case call for or justify its application.
(v) The acts and conduct of the grantee as well as those of the grantor are relevant for the purpose of the application of the rule of contemporanea expositio. It cannot be said that the rule is applicable only to the acts of the grantor nor is there anything in the reason of the rule to so restrict its application.
(vi) There is no priority in the application of the various rules of interpretation including the rule of contemporanea expositio, for they are only clues to the true meaning of ambiguous instruments which must be applied as the circumstances of a particular case may appropriately require or suggest.
(vii) There is no hard and fast rule that in a conflict between a description contained in a deed and that contained in an inventory, map or schedule annexed to the deed, or between a description by name and description by boundaries, the former should be held to prevail. Each case depends on its peculiar facts.
(viii) In applying the rule contemporanea expositio attention must be directed particularly to the user of the property during the period immediately following the execution of the deed as being the most material, especially when conflicts are found to have arisen between the parties subsequently.
(ix) There is no reason why the finding of the Courts below, as to possession of the disputed property immediately following the execution of the deed though arrived at on the issue of adverse possession should not be taken into consideration, if it is relevant and material in interpreting the deed according to the true intention of the parties".
26. The learned counsel for the defendants by placing reliance on the aforesaid decisions would submit that had the plaintiff intended that the area settled was only limited to the extent of half cent then the plaintiff would have specified his own vacant land as the eastern boundary; but the boundary of a third party namely Kuchu Kozhi Meera Sahib Maraikayar was mentioned in Ex.B1 and that it is pertinent to note that the plaintiff referred the southern boundary as his own remaining property. The very cited decision by the learned counsel for the defendants would refer to the principle of 'Contemparaneo exposito', which rule enables the Court to disregard a part of the description, as false or inadvertently inserted. Here, my above discussions supra would indicate that the eastern boundary specified in Ex.A1 has to disregarded by invoking the aforesaid principle. The principle 'Contemparaneo exposito' as referred to in the same decision is not applicable in the facts and circumstances of the case as absolutely there is nothing to show by any other evidence that the party intended the entire extent covered by the boundaries should be handed over to the defendants. The oral evidence adduced by examining PW1 and DW1 and even the document any evidence adduced by both sides would clearly highlight is that neither the plaintiff nor the defendants put up any fence or any wall so as to demarcate the property situated to the south of the suit property. It is obvious that there is a passage running from west to east, adjacent to the suit property on the north and there is a gate also and through that the properties could freely have assess the entire remaining portion of the property including the suit property and the property situated to the south of it. It is an admitted fact that at the north western corner, the building settled is situated and to the south of that two other buildings also situated. As such considering the over all physical features and the fact that the deed is only restricted to the south western corner of the larger area which belonged to the plaintiff, it is clear that he intended to settle only the extent of half cent situated on the south western of his building.
27. On the plaintiff's side, the decisions of this Court in Dina Malar Publications, a tamil daily, reptd., by its partner, R.Krishnamoorthy v. The Tiruchirapalli Municipality, reptd., by its Executive Authority, the Commr., and others reported in 1984(2)-M.L.J.-306 and in Mahalingam v. A.S.Narayanaswamy Iyer and others reported in 1996-1-L.W.443 were cited reiterating the same plea. However my discussion supra would render such citation not germane for deciding this case. As such, I could see no infirmity in the judgment of the first appellate Court and accordingly, the substantial questions of law are answered in favour of the plaintiff and as against the defendants.
28. In the result, there is no merit in the second appeal and the same is dismissed, confirming the judgment and decree of the first appellate Court. However, in the facts and circumstances of the case, there is no order as to costs.
smn To
1.The Principal District Judge, Pudukottai.
2.The District Munsif, Aranthangi