Madras High Court
Seethalakshmiammal vs Hariram Sundaravel on 10 March, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10/03/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Rev.P.(MD) No.52 of 2007 in S.A.No.423 of 1996 Seethalakshmiammal .. Petitioner/R1/D1 Vs 1.Hariram Sundaravel .. Respondent No.1/ Appellant/Plaintiff 2.Sriram Ashok .. Respondent No.2/ R2/D2 Prayer Review Petition filed under Order 47, Rules 1 and 2 read with Section 114 of CPC, to review the Judgement and Decree dated 20.12.2006 passed in S.A.No.423 of 1996. !For Petitioner ... Mr.V.Shanmugam for Mr.N.Dilipkumar ^For Respondent No.1 ... Mr.V.Perumal For Respondent No.2 ... Mr.V.Seetharaman :JUDGMENT
This review petition is focussed as against the Judgement and Decree dated 20.12.2006 passed in S.A.No.423 of 1996 by this Court.
2. The parties are referred to hereunder according to the litigative status before the trial Court.
3. A re'sume' of facts absolutely necessary and germane for the disposal of this review petition would run thus:
Earlier this Court vide Judgment dated 20.12.2006 allowed the second appeal setting aside the Judgments and decrees of both the Courts below and decreed the original suit as prayed for.
4. The first defendant filed this review application on the following main grounds among others:
The Judgment of this Court is vitiated due to error apparent on the face of record and it is therefore liable to be reviewed. The Hon'ble Apex Court also held that the High Court has got inherent jurisdiction to review its Judgment passed if there are error apparent on the face of record and also if the same is necessitated to correct mistakes in deciding the case. The substantial questions of law were framed under Section 100 of C.P.C. and it is extracted here under:
"(i) Whether the Courts below have properly framed the relevant and necessary issues arising in the case and whether the failure constitutes violation of Order 14 Rule 1 C.P.C. and such violation resulted in mistrial and miscarriage of justice? and
(ii) Whether the suit has been properly valued?"
5. This Court has not adverted to the points for determination formulated by the lower appellate Court. The lower appellate Court under point No.1 relating to the point for determination referred to the declaration relief. This Court in paragraph No.41 held as under:
"41. But, no doubt, those issues should have been framed in a better manner touching upon the interpretation of those documents discussed supra. Even then, while dealing with the issues, both the Courts below misread the documents and such an interpretation is found to be perverse and they arrived at a wrong conclusion which warranted the interference of the High Court in the second appeal. Relating to valuation of the suit property, nothing was argued at the time of hearing the second appeal. Point Nos.(i) and (ii) are answered accordingly".
6. The observation made by this Court in paragraph No.41 was not factually correct. This Court assumed as though, D2 purchased an extent of 2 acres 12 cents in S.No.30/1 of the suit property, which is not factually correct.
7. The following are also the additional grounds found set out in the memorandum of review application:
"It is respectfully submitted that it is clearly mentioned in the said sale deed that when buildings are put up, the purchaser must leave space on the east with a width of 10' from the common way leading from Srivilliputhur Road to the schedule land and from that end upto the vendors land 10' wide land for path way and must construct buildings on the remaining land.
It is humbly submitted that in all the documents Ex.A-2 to Ex.A-7 it is specifically mentioned that the suit land is a common path way and there is no recital to the effect that it is the exclusive private path way of plaintiff and second defendant and it is the case of the plaintiff also".
Accordingly, the petitioner/D1 prayed for reviewing the Judgment passed by this Court earlier.
8. The point for consideration is as to whether there is any error apparent in the Judgment dated 20.12.2006 passed by this Court earlier or any other error crept in the Judgment which could have been avoided by this Court?
9.The point:
Heard both sides.
10. At the first instance itself I would like to advert to paragraph No.18 of my Judgment dated 20.12.2006 and it is extracted hereunder for ready reference:
"The true purport of Ex.A.5 is required to be considered in depth. The second defendant, who is the brother of the plaintiff, purchased in addition to the extent of 2 acres 12 cents in S.No.30/1, the suit pathway which is found described at page No.16 of the original sale deed as follows:
... i&\ rh;Bt ek;ghpy; rptfhrp _tpy;ypg[j;Jhh; BuhoypUe;J ne;j epyj;jpf;F tUk; bjd;tly; bghJg;ghij fpHBkylo 10 (gj;J) thp 1y; ghjmo rhy; ...."
13. No doubt, in paragraph No.18, the second sentence was not correctly worded and that is why D1 would interpret as though this Court assumed that D1 purchased the entire extent of 2 acres 12 cents. What actually was intended in that para was that D1 also had ownership right in Survey No.30/1 and I have adverted to page No.16 of that deed and extracted it also. The narration of facts in the earlier paragraphs of my Judgment dated 20.12.2006 would clearly show that it was not the understanding of this Court that D2 purchased the entire 2 acres 12 cents in S.No.30/1 and which is not the case of any one also. It was only a typographical error. As such, that sentence in paragraph No.18 was not taken as the dominating factor for deciding the entire lis, vide the Judgment dated 20.12.2006.
12. However, the learned counsel for the petitioner/D1 would detail and delineate that this is a suit for declaration and for consequential relief of injunction and in such a case, the plaintiff ought to have proved his case under Ex.A5; there is nothing to show that the disputed pathway having a width of 11 feet, which is leading from Srivilliputhur Main Road, was purchased by the plaintiff and in such a case barely on that short point, the suit ought to have been dismissed; and it was correctly dismissed by the trial Court and confirmed by the first appellate Court.
13. The learned counsel for the petitioner/D1 would develop his arguments that this is not a suit based on easementary right and there is no question of this Court in second appeal assuming as though the plaintiff and D1 acquired the remaining entire extent of property other than the extent sold to third parties. In support of his contention, he would also cite the decision of this Court in Arunachalam Pillai and another v. Sorimuthu Pillai reported in 2004(4) CTC 414. An excerpt from it would run thus:
"9. This reasoning of the first appellate court is not legally sustainable. There is no evidence to arrive at this conclusion. The conclusion of the first appellate Court is based on 'no evidence'. The Commissioner's report only shows the physical features; how the property situate. From that, the Court cannot come to the conclusion that the plaintiff used the pathway (the second schedule property) to reach the first schedule property. It is nothing but surmises and imagination by the first appellate Court. To succeed in the case, the plaintiff must adduce evidence and prove his case that he got a right of pathway over property referred as BEFGC. It is a well established principle that the plaintiff must win or fall on his own pleadings and evidence. But, in this case, there is absolutely no evidence adduced by the plaintiff to prove his case either of ownership of the second schedule property or easementary right over the same. Merely on the basis that the plaintiff had no property on the eastern side of the 1st schedule property on the date when he purchased the same, the first appellate Court had come to the conclusion that the plaintiff had used the second schedule property to reach his land. This conclusion is not legally sustainable. It is for the plaintiff to prove his case which the plaintiff failed to do.
... ...
11. The plaintiff cannot be permitted to raise inconsistent pleas. To claim easement, the defendant must admit the title of the defendant over the property. If the plaintiff claims easementary right that must be proved by sufficient evidence by the plaintiff. When the plaintiff admits that he claimed ownership and not easement and if he fails to prove ownership, he cannot be allowed to prove easementary right. Ownership and easement are mutually exclusive. Both cannot be pleaded. Therefore, when the plaintiff claimed ownership, he gives up the plea of easementary right. Ultimately, when the plaintiff failed to prove ownership, he cannot revive the plea of easement. In such circumstances, the plaintiff is not entitled for any relief. The trial Court approached the issue rightly and dismissed the suit. The reversal of the suit by the appellate Court is erroneous".
14. The learned counsel for the petitioner/D1 by placing relieance on the cited Judgment would advance his arguments that this is a case for declaration of title and furthermore once the plaintiff pleads merger of easementary rights, his claim for suit based on declaration of title should have been dismissed; but this Court in second appeal decreed the suit.
15. Whereas the learned counsel for the first respondent/plaintiff would submit that Ex.A4, the partition deed, which emerged between the original owners of the suit properties viz., Rajamani Nadar and Manickavasakam, would show that after selling an extent of 46 r cents in the total extent of 2 acres 12 cents in R.S.No.30/1, the remaining extent of 1 acre 65 r cent, which includes the disputed pathway also, was partitioned between the two and out of that each of the brothers had taken 82 cents and in that sale deed, it is also found mentioned about the disputed pathway as under:
"...njw;Fs;s g[q;ir br.82-3/4f;F tU&k; xd;Wf;F rh;f;fhh; cs;gl jPh;it U.16 tPjk; 25 klA;F jPh;it U.400/- bghJeilghijapd; tpguk; i& rh;Bt ek;ghpy; @ tpy;ypg[j;Jhh; Buhl;oypUe;J V, gp jgrpy; epyA;fSf;F tUk; fpHBkyo 10 bjd;tly; Bky;jiyao 105 fPH;g[uk; jiyao 60 cs;sjpy; V,gp jgrp[y;jhh;fs; g[HA;fpf;bfhs;Sk; bghJeilghij ghj;jpaKk; njd; ehd;Fkhy; tpguk; tpy;ypg[j;Jhh; Buhl;ow;Fk; bjw;F Btyha[jk;brl;oahh; filf;F Bkw;F rPjhbyl;Rkp buA;f ehr;rpahh; nth;fs; tPLfSf;Fk; fpHf;F V jgrpy; 1 egh;fshf uh$hkzp ehlhh; ghf brhj;Jf;F tlf;F njw;Fs;gl;lJ.... (emphasis supplied)
16. Placing reliance on the aforesaid extract, he would submit that under Ex.A4, they intended that the disputed pathway as their private pathway only to be enjoyed by them for their ingress and egress and not for any others to use it; subsequently, the said Rajamani Nadar sold as per Ex.A5, his share including the suit pathway to D2, but with the condition that the said disputed pathway and the pathway which proceeded towards the extreme south should be left as such without any construction being raised; and that subsequently all the lands situated on the southern side so to say excluding the properties sold to Seethalakshmi Ammal (D1), one Velayutham and Ranganatchiar, got vested with the plaintiff and D2 and accordingly he submitted that there is no error apparent or mistake in the Judgment dated 20.12.2006.
17. The learned counsel for the review petitioner/D1 would submit that the boundary should be considered as found detailed in Ex.A4. The boundary for the extent of 1 acre 82 cents would contemplate the disputed pathway as one of the boundaries, to describe the extent of 165 r cents; once the disputed pathway is shown as a boundary to the extent of 165 r cents, which was partitioned between the two, then it could not be presumed that disputed pathway also was included in the extent of 165 r cents and the plaintiff has not placed any evidence in that regard.
18. The learned counsel for D1 cited the decision of the Hon'ble Apex Court in M.M.Thomas v. State of Kerala and Another reported in (2000) 1 Supreme Court Cases 666. An extract from it would run thus:
"11. It must be pointed out that any claim for exemption under Section 3(2) of the Act must necessarily be in respect of an area which was brought under cultivation by him before the appointed day i.e. 10-5-1971. In other words, if not cultivation was made by him on the land concerned before the said crucial date its owner cannot base a claim for exemption under sub-section(2). The appellant did not even mention in his claim petition that he had cultivated the said land before the said date nor did he mention in his evidence that the land was brought under cultivation even on a single day prior to 10-5-1971. Hence, there is no question of considering the exemption under sub-section(2). But the High Court went out of his claim and found that he is entitled to exemption under Section 3(2). Therefore the earlier judgment of the High Court dated 13-1-1982 was vitiated by error apparent on the face of the record.
14. The High Court as a court of record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it. The High Court's power in that regard is plenary. In Naresh Shridhar Mirajkar v. State of Maharashtra a nine-Judge Bench of this Court has recognised the aforesaid superior status of the High Court as a court of plenary jurisdiction being a court of record".
(emphasis supplied)
19. The perusal of the aforesaid decision and more specifically the underlined portion, would indicate that it was relating to a case wherein the High Court without even considering the plea of the petitioner properly, decided the matter by granting exemption as per Section 3(2) of Kerala Private Forests (Vesting and Assignment) Act, 1971. Ex facie and prima facie it is clear that the said procedent has been cited out of context. However, the Hon'ble Apex Court's view on High Court's power of review is concerned, this Court keeps in mind in deciding this matter.
20. Now, it has to be seen as to whether there is any error apparent or wrong understanding of the evidence before this Court, while exercising its power under Section 100 C.P.C.
21. I, in my earlier Judgment dated 20.12.2006, under paragraph No.8 onwards started discussing the real controversy between the parties and accordingly disposed of the matter on the specific finding that the findings of both the Courts below were perverse and thereupon arrived at the conclusion. The issues framed by the trial Court and the points for consideration framed by the first appellate Court were all considered by this Court and then held that even though evidence was available before both the Courts below, they failed to decide in favour of the plaintiff. Exs.A2 to A7 are the crucial documents in this case and I have discussed those documents in paragraph Nos.8, 9 and 11 of my Judgment and I have also extracted the certain portions from the Judgment as under:
"8. Right at the outset, I may proceed to refer to Exs.A.2, A.3 and A.4. Ex.A.2 is the certified copy of the sale deed dated 10.9.1970 executed by the said Rajamani Nadar and Manickavasaga Nadar in favour of Seethalakshmi - the first defendant selling a portion at the north-western corner of the entire extent of their property.
9. While describing the property sold under the sale deed Ex.A.2, the southern boundary was shown as vendors' own property under their control for pathway purpose and it is significant and pertinent, important and indispensable to note that in Ex.A.2, the southern boundary is not shown as common pathway. But it is only stated as vendors' own land. In such a case, it is not known as to how the first defendant could lay claim over it as pathway meant for her use. However, on the first defendant's side, it is contended that Ex.A.3 and A.4 would refer to the area to the east of the defendants' property as a common pathway, for which learned counsel for the plaintiff would highlight that nowhere in Ex.A.3 or A.4 it is found stated that the pathway referred to therein is meant for the first defendant.
11. It is therefore, just and necessary to scrutinise as to whether both the Courts below properly considered the evidence on record. They considered the relevant documents as though such documents refer to common pathway available for all the land owners in that area including the first defendant. It is therefore, just and necessary to scrutinise the documents and see whether those documents were properly understood by the Courts below. Ex.A.3, the certified copy of the sale deed dated 10th March, 1972 executed by Rajamani Nadar and Manickavasaga Nadar in favour of Anthoni Nadar Swami, would describe the property thus:
"vA;fs; iftrKs;s epyj;jpd; kj;jpapy; bjd;tly; ghijf;fhf xJf;fg;gl;Ls;s 12 mo mfyKs;s epyj;jpw;Fk; bjw;F njw;Fs; fpHBkylo 127 bjd;tlyo 86 cs;sjw;F Rkhh; 25
- K.S.V.Rajamani Nadar, K.S.V.Manickavasaga Nadar - bfhz;Ls;s kidao epyKk; i&\ epyj;jpw;F tlg[wKs;s 12 (5 mo) mfyj;jpy; _tpy;ypg[j;J}h; BuhL tiuf;Fk; ehA;fs; xJf;fpa[s;s bjd;tly; Buhl;L epyj;jpy; bghJthf ele;J bfhs;Sk; tHpeil tz;og;ghijg; ghj;jpaKk;...."
22. Adverting to those aspects in my previous Judgment, I highlighted that D1 was not given any right over the suit pathway. Paragraphs 13 and 14 of my previous Judgment are self explanatory and they are extracted hereunder for ready reference:
"13. Ex.A.4 is the certified copy of the partition deed dated 10th January 1977 effected between Rajamani Nadar and Manickavasaga Nadar and the relevant portion is extracted hereunder for ready reference:
"Vw;fdBt tl gf;fj;jpYk; bjd; filrpapYk; ehk; bghJtha; fpiuak; bra;J bfhLj;Jtpl;l br 46 1/ 2 ePf;fp ghf;fpa[s;s V 1 br 65 1/ 2 y; tlghjp br 82 3/ 4 njw;F khy; _tpy;ypg[j;J}h; Buhl;Lf;Fk; i&\ Buhl;oypUe;J ne;j epyj;Jf;F tUk; bghJg;ghijahd fpHBkylo 10 bjd;tly; nky;jiyao 105 fPH;jiyao 60 cs;sjw;Fk; rPjhyf&;;kp buA;fdhr;rpahh; nth;fs; tPLfSf;Fk; - Btyha[jk; brl;oahh; filf;Fk; bjw;F ....."
14. The above description would show that the said suit pathway referred to therein is available for ingress and egress of those owning lands to the south of that pathway. It is not found stated that such pathway should be made available for the first defendant also. But, on the other hand, it is stated that the said pathway is available for those having lands to the south of the pathway. English translation of such description of pathway in Tamil in Ex.A.4 would be to the effect that the said suit pathway is proceeding from Sivakasi - Srivilliputtur Road towards south to the land situated to the south of the suit pathway. In Ex.A.4, the same original owners/vendors as found in Ex.A.2, i.e., Rajamani Nadar and Manickavasaga Nadar declared it so.
15. If those original owners wanted to dedicate the suit pathway as common pathway, certainly they would have worded it otherwise. The extent of the common private pathway is also found described as measuring 10 feet east to west and 105 feet north to south on the western side and 60 feet south to north on the eastern side. Ex.A.1 Map would highlight that the said description in Ex.A.4 tallies on ground. Ex.A.6 is the certified copy of the sale deed dated 8th May 1978 which was executed by the said Manickavasaga Nadar in favour of Sundaravelu, the plaintiff and in which, the suit pathway is described as under:
"epyj;jpy; fPH;gf;fk; 10 mo mfy bghJg;ghijf;fhf _tpy;ypg[j;Jhh; BuhoypUe;J jA;fs; epyk; Koa[k; tiu tpl;oUf;Fk; ghijia jw;BghJ ne;jg;gj;jpuk; Kyk; fpiuak; thA;Fk; mj;Jtiu ghijf;ffhf 10 mo mfy epyj;ij ePf;fp ghf;fp epyj;jpy; fl;olk; fl;of;bfhs;s Btz;oaJ...."
(emphasis supplied)
23. I could see no error apparent in understanding the real purport of those documents. I have adverted to the fact that in Ex.A2, which is the certified copy of sale deed dated 10.09.1970, executed by the original owners in favour of D1, Seethalakshmi Ammal, the disputed pathway was shown only as their land and not as a pathway and subsequently in Ex.A4, the said two owners viz., Rajamani Nadar and Manickavasaka Nadar got partitioned the remaining extent of the property to an extent of 1 acre and 65 r cents out of the total extent of 2 acre 12 cents in S.No.30/1. I heard both at length regarding this extent is concerned as to whether the extent of 1 acre 65 r cents as found mentioned in Ex.A4 includes the disputed pathway or excludes it?
24. The learned counsel for the first respondent/plaintiff would convincingly submit that in Ex.A4, it is found mentioned that 46 r cents land was sold, but the disputed pathway was not an item, which was sold. In such a case, Ex.A4 should be interpreted by giving its grammatical meaning that out of 2 acre and 12 cents, after deducting 46 r cents, which was sold, there remained 1 acre and 65 r cents. It is an admitted fact that the disputed pathway was forming part of the entire extent of 2 acre and 12 cents. A fortiori, the extent of 1 acre and 65 r cents includes the disputed pathway. It is the logical and grammatical interpretation. Then, the question arises as to why then that disputed pathway should have been shown as one of the boundaries in some documents.
25. In all cases blindly it cannot be taken that boundary will prevail over extent. It all depends upon the facts and circumstances of each and every case. At this contest my mind is redolent with the following decisions:
(i) 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".
(ii) 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".
(iii) 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. Here, the facts clearly demonstrate that excluding 46 r cents sold by both the brothers, the remaining 1 acre 65 r cents includes that disputed pathway and they intended under Ex.A4 itself, that it should be their private common pathway and accordingly, while they effected partition, they specified so. As per Ex.A5 one of the brothers viz., Rajamani Nadar sold in favour of the plaintiff his entire share of 82 cents, which he got under Ex.A4. In paragraph No.15 of my earlier Judgment, the relevant portion is found extracted thus:
"epyj;jpy; fPH;gf;fk; 10 mo mfy bghJg;ghijf;fhf _tpy;ypg[j;Jhh; BuhoypUe;J jA;fs; epyk; Koa[k; tiu tpl;oUf;Fk; ghijia jw;BghJ ne;jg;gj;jpuk; Kyk; fpiuak; thA;Fk; mj;Jtiu ghijf;ffhf 10 mo mfy epyj;ij ePf;fp ghf;fp epyj;jpy; fl;olk; fl;of;bfhs;s Btz;oaJ...."
27. The learned counsel for the review petitioner/D1 would submit that there is a clause in the schedule in Ex.A5 itself to the effect that the said pathway is meant as one belonging to Anaiyur Panchayat. I would like to highlight that the said clause should not be understood in that manner. It is only a formal clause showing that the entire property is in Anaiyur Panchayat and nowhere it is stated that the pathway belongs to Anaiyur Panchayat. The further additional clauses would further make the point clear that various clauses were added as formal clauses for registration purpose. I would like to extract hereunder that portion of Ex.A5, which clearly highlights as to how such an argument on D1's side is untenable.
"... ghijf;fhf tpl;L ghf;fp epyj;jpy; fl;olk; fl;of; bfhs;sBtz;oaJ Mida{h; gq;rhaj;J Bghh;Lf;Fs;gl;lJ rptfhrp gq;rhaj;J a{dpaidr; Brh;e;jJ tptrhaj;Jf;F yhaf;fw;wJ fl;olk; fl;of;bfhs;s tpw;fg;gLfpwJ. brz;L vz;gj;jp nuz;Bl Kf;fhy; cs;s epyk; fpiuak;.
njd; jw;fhy khh;f;fl; kjpg;g[ U.41375.
Fwpg;g[: i& epykhdJ rkjskw;W bghpa fplA;FfSld; nUg;gjhy; khh;f;bfl; kjpg;g[f;F kpft[k; Fiwe;j tpiyapy; tpw;fg;gLfpwJ. fy;ghiwfSk; nUf;fpwJ. mitfis cilj;J rkjskhf;f Btz;Lk;".
28. A mere perusal of it would highlight that the clause about Anaiyur Panchayat is meant for indicating the entire 82 cent is in Anaiyur Panchayat. There is nothing to demonstrate that the suit pathway was agreed to be handed over to the said Panchayat and it was not handed over also to the Panchayat.
29. My above interpretation of the clause in Ex.A5 relating to Anaiyur Panchayat, is for the purpose of highlighting that the subject matter of the sale is situated in the Panchayat concerned . In Ex.A2, which is the sale deed executed in favour of D1, it is found specified as follows:
"jgrpy; Bkw;F nuhk;ehl; hPo rptfhrp rg;o Mida{h; fpuhk;k mad; g[q;ir rh;Bt fh.r.t.uh$kzp ehlhh;, Bf.v!;.tp.khzpf;fthrf ehlhh; 7 30k; eph; 1tJ yl;lh; Vf;fh; 2 brz;L 12 cs;s epyj;jpy; tlgf;fk; rptfhrp - - tpy;ypg[j;Jhh; bkapd;Buhl;Lf;F bjw;F vA;fs; iftrKs;s 11 mo mfyKk; cs;s epyj;jpw;Fk; Bkw;F vA;fs; iftrKs;s epyj;jpw;F tlf;F, gq;rhaj;J a{dpad; gs;spf;Tl epyj;jpw;F fpHf;F njw;Fs; fpHBky; tljiy bf$k; 22 bjd;jiy bf$k; 19 bjd;tly; Bky;jiy bf$k; 20 fPH;jiy bf$k; fh.r.t.uh$kzp ehlhh; Bf.v!;.tp.khzpf;fthrf ehlhh; 21 cs;sjw;F Rkhh; 10 11/24 brz;Ls;s kidao epyk; fhpry; epyk; tptrhaj;Jf;F yhaf;fw;wJ tPL fl;l tpw;fg;gLfpwJ. a{dpad; gq;rhaj;Jg; Bghh;Lf;Fl;gl;lJ. rptfhrp gq;rhaj;J a{dpaidr; Brh;e;jJ."
30. The underlined portion would clearly highlight that such a reference has been made not to show that the entire property in Ex.A2 belongs to Panchayat Union, but it was for the purpose of showing that the subject matter of sale is situated in Panchayat Board area. If the interpretation given by D1 is accorded to Ex.A2, it would amount to stating that the said 10 r cents covered by Ex.A2, belongs to Panchayat itself. Hence, D1's interpretation of Ex.A5 is totally untenable. Furthermore, in other Exs.A3 to A8, similar clauses are found. As such it really demonstrates that D1 went to the extent of interpreting documents in utterly wrong manner.
31. The law is very clear that if any pathway has to be handed over to the Panchayat, there are procedures for it. But the fact remains that the recitals would clearly show that as on the date of emergence of Ex.A5, one other third party was having land in S.No.30/1 to the south of the property covered under Ex.A5 and the pathway starting from Srivilliputhur Main Road, that is branching towards south and turning towards east and then proceeding towards extreme south and the extent covered by that private pathway also was covered under the sale deed and this fact cannot be lost sight of. However, as already extracted supra, there is a clause in Ex.A5 that there shall be no construction on that pathway and that should be kept vacant for being used as a pathway.
32. My previous Judgment would clearly indicate as to how subsequently the plaintiff and D2 acquired the entire extent of land except the land purchased by D2 and Velayutha Chettiar and Ranga Natchiar. As such, the necessity to adhere to the clause that there should not be any construction put up in that pathway became otios and redundant. In such a case, there was clear merger of that pathway with the purchaser. Over and above that D2, who acquired property as per Ex.A2 and who is having the right of ingress to her area has not explained as to how she is entitled to that suit pathway.
33. The plaintiff in this case by virtue of Ex.A2 to A7 has clearly proved that the plaintiff and D2 purchased the entire extent of 2 acres 12 cents except the extents sold in favour of Seethalakshmi Ammal (D1 herein), who purchased under Ex.A2, and Ranga Natchiar, who purchased land to the south of the land of D1, and Velayutham, who purchased land to the east of the disputed pathway. D1's contention that in Ex.A5, there is reference to pathway including the disputed pathway, would not enure to her benefit for the reason that she was not a party to it and for that matter except Ex.A2, the sale deed in her favour to an extent of 10 r cents abetting Srivilliputhur Main Road on the north western corner of the entire extent of 2 acres and 12 cents, she is having no right over another extent to be used as a pathway for her and the admitted fact remains that she has ingress and egress to her land from the said Srivilliputtur main road. The core question arises as to whether D1, who is not a party in Exs.A3 to A7, could rely upon them so as to derive benefit in her favour. The answer is at once an emphatic no. In Exs.A3 to A7, the pathway contemplated is only for the benefit of those, who derived right under those documents only, and not to D1, who is not a party to it. This vital and crucial paramount point has not been borne in mind by D1.
34. The prayer in the plaint is for declaring the exclusive right of the plaintiff and D2 over the suit pathway by virtue of they having acquired right over it and and in such a case, the question of applying the decision in Arunachalam Pillai and another v. Sorimuthu Pillai reported in 2004(4) CTC 414 does not arise. Here there is no contradicting plea at all. Hence, the plaintiff is not claiming in one breadth ownership and in another breadth easementary right over another man's land or in D1's land. In the cited decision the factual position is totally different and a mere perusal of it as extracted supra would demonstrate the same.
35. In my previous Judgment dated 20.12.2006, I have adverted to the various precedents including the one at paragraph No.27 of it which contemplates the decision of this Court in Lalithamaheswari v. Poomalai Ammal and two others reported in 1999-2-L.W.596 to the effect that common passage cannot be presumed unless there is a document indicates the same. Section 19 of the Indian Easement Act, 1882 is reproduced here under for ready reference:
"19.Transfer of dominant heritage passes easement.- Where the dominant heritage is transferred or devolves, by act of parties or by operation of law, the transfer of devolution shall, unless a contrary intention appears, be deemed to pass the easement, to the person in whose favour the transfer or devolution takes place.
Illustration A has certain land to which a right of way is annexed. A lets the land to B for twenty years. The right of way vests in B and his legal representative so long as the lease continues".
In fact, in accordance with the principles embodied in the aforesaid decision, I have decided the case earlier by highlighting that by the plaintiff and D2 having purchased under different deeds as set out therein, became the owner of the entire extent of 2 acres and 12 cents, except those aforesaid three pieces of land sold in favour of three persons referred to supra.
36. In my previous Judgment in paragraph No.18, I highlighted by giving the excerpt from Ex.A5 that the suit pathway has been described as common pathway for persons owning lands on the south and not to D1, who is owning land on the north western corner of the entire extent of 2 acres and 12 cents.
37. As such D1 is not concerned with the said common pathway, which was referred to in those subsequent documents, which emerged relating to the portion situated on the southern portion of S.No.30/1, wherein D1 was not at all a party and the disputed pathway was referred as common pathway only relating to those persons, who derived benefit under those deeds.
38. In Ex.A4, the partition deed between the brothers viz., Rajamani Nadar and Manickavasaka Nadar, it is clearly found spelt that out of 2 acres 12 cents of land, which belonged to them after disposing of an extent of 46 r cents, the remaining 1 acre 65 r cents was partitioned between them. Incontrovertibly D1 as per Ex.A2 purchased an extent of 10 r cents and the said Velayutham purchased 5 r cents, Renga Natchiar purchased another 5 r cents and as per Ex.A3 R.C.S. Church purchased an extent of 25 cents. As such, the total extent comes to 46 r cents, which both the brothers sold and it is therefore obvious that the remaining extent after deducting 46 r cents from the total extent of 2 acre 12 cents, comes to 165 r cents, which obviously and indubitably includes the disputed pathway also. Subsequently, as per Ex.A8, D2 purchased from R.C.S. Church that 25 cents also, as already highlighted above, the plaintiff and D2 purchased the entire extent of 165 r cents including the suit pathway. In other words, the plaintiff and D2 virtually stepped into the shoes of the original owners viz., Rajamani Nadar and Manickavasaka Nadar relating to 165 r cents and they were enjoying their own lands and the suit pathway is the common pathway of both of them and the suit has been correctly filed for declaring their common right of pathway over the suit pathway.
39. The first appellate Court framed the point No.1 for consideration as to whether the suit pathway is the exclusive pathway for the plaintiff and D2 and such formulation of point for consideration was not correctly dealt with and decided with reference to the documentary evidence available on record and those facts I have referred to in my earlier Judgment dated 20.12.2006 by discussing those documents and hence, in the review petition, their contention as though this Court has not considered earlier /the first appellate Court's version is neither here nor there.
40. In my previous Judgment, I have clearly pointed out that both the Courts below were perverse in their approach in dealing with the matter.
41. My mind is redolent with the provisions of Section 114 of C.P.C. and also order XLVII of C.P.C. and the Hon'ble Apex Court's verdict cited supra, which contemplate the review powers of this Court. My above discussion would show that absolutely there are no mistakes in the approach of this Court in allowing the second appeal. Considering the pros and cons of the matter by applying the correct provisions of law and noting the perversity in the Judgments of both the Courts below, they were set aside and the original suit was decreed as discussed supra. In view of my discussion supra, it is apparent that there is no scope for review. In fact, D1 wanted to use this review petition as a tool to canvass before this Court to replace my earlier reasoned Judgment with some other antithetical view. All these aspects were in detail adverted to in my earlier Judgment and hence, I am of the considered opinion that there is no error apparent in my earlier Judgment and accordingly, I am of the view that this review petition has to be dismissed. Hence, there is no merit in this review petition and accordingly, the same is dismissed. No costs.
smn To
1.The Subordinate Judge, Srivilliputtur, Kamaraj District.
2.The Principal District Munsif, Sattur.