Kerala High Court
Kassim Beevi vs Meeranchi Mytheen Beevi And Ors. on 17 November, 1986
Equivalent citations: AIR1987KER226, AIR 1987 KERALA 226
ORDER T.L. Viswanatha Iyer, J.
1. Petitioner was the 6th defendant in a suit for specific performance of a contract for sale of 4 cents of property described as item No. 2 in the schedule to the plaint. The petitioner was impleaded in the suit on the contentions raised that she was a bona fide purchaser of the properly for consideration without notice of the agreement to sell. The purchase by 6th defendant is under the document marked Ex.D2 in the suit, and is dt. 9-12-1968. The agreement to sell was dt. 14-10-1968 and was marked as Ext. P2 in the suit. There was controversy in the suit about the genuineness of Ext.P2. While discussing this issue, the confusion caused by a mistake in the directions in Ext. P2 was noted. For instance, the boundary on the western side was described us the boundary on the southern side; and the suit properly was described as the eastern side of an extent of 8 cents extending north-south, while in reality it was 4 cents on the southern side of the 8 cents lying east-west. This aspect of the matter was adverted to by the trial court in para 13 of the judgment, which I extract below : --
"The description of the 4 cents in Ext. P2 followed in the plaint, is as if the road is on the southern side of item (i) and the 4 cents is on the Eastern side of the 8 cents extending north to south. It is now contended by the plaintiff, that the lie of the properly is such that the road can be described as on the west or south, and that consequently the boundaries described on the other sides also may be described differently. This may be true, because the defendants had no dispute with regard to the description to the property so far. If the boundaries as stated in Ext.P2 are changed in the clockwise direction -south to the west and so on -- the description will tally with what the defendants say. There was no mistake as to the identity of this 4 cents, that was the property which was on the northern side of the property of the 6th defendant, which she had purchased earlier from defendants 1 to 5. This 4 cents was later purchased by 6th defendant under Ext. D2. There was no mistake or ambiguity in P.W. 2 understanding the directions and the boundaries when he measured the property and gave the measurements in writing, and it could not he expected that if Ext. F2 was written after the measurement, there could have been a mistake by describing the road as on the south of the 8 cents."
The document Ext.D2 in favour of the petitioner 6th defendant describes the boundaries correctly. In fact parties knew what exactly was the property in dispute and the trial court even stated that there was no dispute with regard to the identity of the property. The trial court in fact observed in para 23 of its judgment as follows : --
"As noticed earlier, the road in front of the property is mistakenly described in Ext.P2 as on the southern side, whereas it is on the western side. Even though there is this mistake in the description in Ext.P2 and the plaint, there is no dispute with regard to the identity of the property."
2. The suit was fought on various points right up to this court and was decreed. The plaintiff filed E.P. No. 349 of 1977 with a draft sale deed, the boundaries in which did not tally with the description in Ext.P2 and in the plaint or in the decree, both of which had reproduced the boundary description in Ext.P2. The difference in the boundaries was consequent on the mistake in the boundaries as described in Ext.P2 as pointed out earlier. The decree-holder also filed application for correction of the decree, inter alia regarding the boundaries of the property described in the decree schedule. That application was dismissed on the ground that the application for amendment lay only to this court in view of the fact that the matter had been taken up in second appeal to this court. The decree-holder filed C.M.P. No. 13226/82 for amendment of the decree in this court, whereupon this court held that the execution court itself had jurisdiction to construe the decree and decide as to what was the property to which the decree related with reference to the pleadings, judgments and other records. It was stated that on the basis of such adjudication the decree-holder was entitled to relief in respect of the property actually involved in the suit in spite of the misdesciption. The petition was closed with these observations. Thereafter the decree-holder filed the present execution petition with a draft sale deed in which he incorporated the boundary descriptions of the property as set out in Ext.D2, the sale deed in favour of the petitioner. Despite the fact that the properly involved in Ext. D2 and the property forming the subject matter of the decree was one and the same and the fact that the decree-holder was entitled to have a deed of sale executed in his favour in respect of that property, the execution petition was vehemently opposed by the petitioner as if the court had no right to have the sale deed executed with the correct boundary descriptions. The various contentions were overruled by the lower court and the executing court approved the draft sale deed produced by the decree-holder. The revision is filed therefrom.
3. This is one of those eases where the execution of a decree is attempted to be stalled on mere technicalities. The suit itself was keenly fought out by the petitioner. The mailer was carried through three courts. Thereafter when the execution is taken, technical pleas are raised as if the court is precluded from taking note of the actual state of affairs and conveying the property with a proper sale deed describing the actual boundaries. It is not as if there was any dispute as to the properly in regard to which specific performance was sought. It was not in dispute that the properly covered by Ext.P2 and that sold as per Ext. D2 was one and the same. That there was a mistake in the boundary description in Ext.P2 is also clear from the observations in para 13 of the judgment in the suit. The plaintiff is entitled, in a suit for specific performance, to have the property agreed to be said to him conveyed with a proper, correct and effective deed of sale. When there is no dispute regarding the identity of the properly, there is no reason why the actual boundaries of the properly, as understood by all the parties, should not be incorporated in the sale deed to avoid any possible confusion in future. It is not as if by doing so the court is traversing beyond the decree or causing any prejudice to any of the parties or conveying property not agreed to be conveyed. In a case of this nature the courl is bound to carry out and implement its decree in accordance with its tenor, which in turn would imply that the property should be correctly described with the proper boundaries. That is all that has been done by the lower court in approving the draft sale deed. The plaintiff has only incorporated the boundaries from Ext. D2, the sale deed in favour of the petitioner. In the absence of any dispute that this was the property which was the subject matter of Ext.P2 also, the lower court has only acted rightly in approving the draft sale deed.
I do not find any merit in the revision petition. It is dismissed with costs.