Madras High Court
R.Thangam vs P.T.Ram Mohan on 6 July, 2018
Author: M.Sundar
Bench: M.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 21.06.2018
Delivered on : 06.07.2018
Dated: 06.07.2018
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
S.A.(MD)No.595 of 2009
and
C.M.P.(MD)Nos.10827, 10828 and 11582 of 2017
R.Thangam .. Appellant
Vs.
1.P.T.Ram Mohan
2.A.Muthiah Moopanar
(R-2 impleaded vide court order
dated 16.7.2015 made in
M.P(MD) No.1 of 2015 in
S.A.(MD)No.595 of 2009) .. Respondents
Second Appeal under Section 100 of CPC against the judgment and decree dated
22.08.2008 made in A.S.No.17 of 2007 on the file of the Principal Subordinate
Judge, Tenkasi, confirming the decree and judgment dated 10.01.2007 made in
O.S.No.180 of 2004 on the file of the District Munsif, Shencottai.
!For Appellant : Ms.N.Krishnaveni, Senior Counsel
for Mr.P.Thiagarajan
^For Respondents : Mr.S.Meenakshisundaram,
Senior Counsel for Mr.R.Manimaran
:JUDGMENT
This second appeal arises out of a suit being O.S.No.180 of 2004 on the file of 'District Munsif Court, Shencottai' (hereinafter referred to as 'trial court' for brevity). One R.Thangam, sole defendant in the trial court is the appellant before this Court in the instant second appeal. One P.T.Ram Mohan, sole plaintiff before the trial court in the aforesaid suit, is respondent No.1 before this Court in the instant second appeal.
2 20 cents or thereabouts of land together with Coconut trees thereon comprised in S.No.438/4 in Puliarai village in Shencottai Taluk in Thoothukudi District is the subject matter of the instant second appeal and the same shall hereinafter be referred to as 'suit property'. To be noted, schedule in the plaint in the trial court and the decree in the trial court describe extent of suit property as 30 cents of land, but both sides before this court agree without any disagreement that the extent of suit property is only 20 cents or thereabouts.
3 Pending second appeal, plaintiff in the trial court who was originally sole respondent in the instant second appeal, sold the suit property to and in favour of one A.Muthiah Moopanar in and by a registered sale deed dated 20.09.2013, registered as document No.1436/2013 on the file of the Sub Registrar Office, Shencottai. Owing to such sale, the vendee Muthiah Moopanar was impleaded as respondent No.2 in this second appeal.
4 Plaintiff filed the aforesaid suit in the trial court with prayers for declaration of title and consequential permanent injunction qua possession of suit property. There are two more limbs of prayers and one is the usual residuary limb and the other limb is prayer for costs.
5 In the plaint, it has, inter-alia, been averred by the plaintiff that the suit property was originally plaintiff's ancestral property and that the plaintiff got the suit property in and under a partition deed dated 8.3.1961 (Ex.A.1). Plaintiff's father, plaintiff's brothers and plaintiff are parties to the partition deed. It is the further case of the plaintiff that on 08.12.1994, plaintiff sold an extent of 2 acres and 28 cents of lands to defendant being lands comprised in S.Nos.438/1 and 438/6 also in Puliarai village, Shencottai Taluk, Thoothukudi District. Further, the suit was predicated primarily on the ground that the defendant is interfering with plaintiff's possession of suit property and is also making some claims qua suit property.
6 Defendant entered appearance, filed a written statement in November, 2004 and completed pleadings. The pivotal point of defence for the defendant is contained in paragraph 6 of the written statement. That pivotal point is to the effect that defendant purchased the aforesaid 2 acres and 28 cents of lands under the aforesaid Ex.A.2 dated 08.12.1994 from the plaintiff and that defendant is in possession and enjoyment of the land conveyed under Ex.A.2 from the date of purchase. In other words, it is the case of the defendant that the suit property was also conveyed by plaintiff under Ex.A.2. It is the case of the defendant that the plaintiff, in an attempt to dislodge the defendant from the suit property, has launched the suit. Parties went to trial.
7 On the side of plaintiff, plaintiff examined himself as P.W.1 and one Vellapandi, the jurisdictional Village Administrative Officer, was examined as P.W.2. Eight documents, i.e., Exs.A.1 to A.8 were marked on the side of plaintiff. On defendant's side, defendant's father-in-law was examined as the lone defendant's side witness, i.e, D.W.1. On the side of defendant, one document was marked as Ex.B.1. In the trial, an Advocate Commissioner was appointed. This Advocate Commissioner had filed a report, sketch and surveyor sketch. All these are dated 09.12.2004 and they were marked as court exhibits. Besides this, four documents were also assigned exhibit numbers and marked as Exs.X.1 to X.4. Five issues were framed. The issues centred around questions as to whether the suit property belongs to plaintiff, whether plaintiff is entitled to declaratory relief, whether plaintiff is in possession, whether plaintiff is entitled to injunctive relief, besides usual residuary issue. After detailed analysis of oral and documentary evidence, trial court decreed the suit as prayed for vide judgment and decree dated 10.01.2007, primarily on the ground that lands conveyed by plaintiff to the defendant under the aforesaid Ex.A.2 dated 08.12.1994 to an extent of 2 acres and 28 cents has been described clearly in the document, i.e., Ex.A.2 and therefore, defendant's defence that property conveyed under Ex.A.2 includes suit property was unacceptable. Trial court has also taken into account the report, sketch and surveyor sketch all dated 09.12.2004 which were filed by the Advocate Commissioner and marked as Exhibits.
8 Aggrieved, defendant carried the matter by way of regular first appeal under Section 96 of Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for brevity). This regular first appeal is A.S.No.17 of 2007 on the file of the 'Principal Subordinate Court, Tenkasi' (hereinafter referred to as 'first appellate court' for convenience and clarity). After full contest, first appellate court dismissed defendant's appeal, confirming the judgment and decree of the trial court. First appellate court negatived defendant's appeal plea that they are entitled to suit property as they are entitled to the entire extent of land lying within the boundaries described in Ex.A.2. Besides this, other aspects of the appeal have also been examined by first appellate court.
9 Aggrieved, defendant carried the matter to this court by way of this second appeal. The instant second appeal was admitted by this court on 20.08.2009 on two substantial questions of law, which read as follows :
"1.Is the learned Principal Subordinate Judge right in not applying the principles that the boundaries prevail over extent especially when Ex.A.2 clearly gives the four boundaries?
2.Is not the Judgement and Decree of the learned Principal Subordinate Judge is perverse for not considering the oral and documentary evidence in its proper perspective?"
10 Urging that both aforesaid substantial questions of law should be answered in favour of the appellant, Ms.N.Krishnaveni, learned senior counsel appearing on behalf of the counsel on record for the appellant submitted that the appellant / defendant has purchased 2 acres and 28 cents of land under Ex.A.2, this is not in dispute, it is also not in dispute that the break-up of this 2 acres and 28 cents purchased by appellant / defendant under Ex.A.2 is 2 acres in S.No.438/1 and 28 cents in S.No.438/6. It is her case that as far as S.No.438/1 is concerned, on ground only an extent of 1 acre and 80 cents is actually available, which means it is 20 cents short in S.No.438/1. On this basis, it was submitted that under Ex.A.2, plaintiff had actually conveyed the suit property also to defendant and therefore, this difference of 20 cents. To buttress her submission, a sketch was pressed into service (with consent of both sides) and the same is as follows :
11 Learned senior counsel for appellant, for buttressing her submission that boundaries prevail over extent, pressed into service two judgments of this court. One judgment is Roohnisha Beevi and 15 others Vs. A.M.M.Mahudu Mohamed and 29 others reported in 1998-1-L.W. 244 rendered by a Hon'ble Single Judge of this court. Relevant paragraph is paragraph 17 and the same reads as follows :
"17. Ex. B-13 is a sale deed in respect of Kallappoo Magan thottam taken in the name of the third defendant's father. The Commissioner has also noted a row of trees, which is like a boundary on NSRQ line and all these trees are more than 40 years old. Kallappoo Magan Thottam is described under Ex.B-13 as having an area of more than 5 acres, In fact, the area covers the yellow marked portion (3 acres and 46 cents) and OPQRSN plot. Third defendant also has no case that under Ex.B-13, any portion of Pattanathu Maraikkar Thottam is included therein, even though he has a case that the properties are covered in S. No. 256 also. So, the identification made by the Commissioner that the plaint property is ABTGHPOA plot is to be accepted. Courts below, for dismissing the suit, have said that the plaintiffs have title only for 3 acres 15 cents, and they cannot claim anything more. That is not the way to identify a property when the same is also covered by boundaries. In 1955 K.L.T. 647 (Devan Krishnan Kartha v. Kochu Mohamed Pariathu), a question came as to how to identify a property when there is a misdescription, a learned Judge of the Kerala High Court said thus: ?
?....The evidence supplied by boundaries, extent, survey numbers and lekhoms* forms the determining factors when the identity of the property is put in issue. If all these factors harmonise there is little difficulty to identify the property in dispute. But when some of them are in conflict with the rest as when the extent and survey numbers do not agree with the boundaries usually the boundaries predominate, and the rest is regarded as erroneous or inaccurate descriptions.. .. .. .."
(* In Tamil Nadu ?lekhom? is known as pymash number).
The said principle was accepted in the subsequent decision reported in 1957 K.L.T. 742 (Full Bench) (Ouseph Chacko v. Krishna Pillai Govinda Pillai)."
12 The other judgment is Ramu (deceased) Vs. Samuel Nadar reported in 2017-2-L.W.-858 authored by me as Single Judge. According to learned senior counsel, relevant paragraph is 4(xi)(a) which reads as follows :
"(a)First judgment relied on by the learned counsel for the respondent is 1984 2 MLJ 306 (Dina Malar Publications Vs. The Tiruchirapalli Municipality rep. by its Executive Authority and others). My attention was drawn to paragraph nos.11 and 12 of the said judgment. In my reading, the following portion of the paragraph 11 is relevant and the same is extracted hereinbelow:
"the principle laid down in the above cited decisions can be applied only to a case where there is an element of doubt with reference to the extent and in this case, it cannot be said that there is any element of doubt with reference to the extent. The documents Exhibit B-1 and B-2 unambiguously prove that what was permitted to be conveyed was an extent of 60'x 35' and not the entire area covered by the four boundaries. Hence, the above cited decisions cannot be of any avail to the appellant. Besides Exhibits B-1 and B-2, the Government Order and the proceedings of the Collector do not mention the boundaries.""
13 Furthering her submissions, learned senior counsel submitted that courts below fell in error in their interpretation of Ex.A.2 and its contents resulting in perversity and therefore, substantial question of law No.2 should also be answered in favour of appellant.
14 Responding to the aforesaid submissions on behalf of the appellant, Mr.Meenakshi Sundaram, learned senior counsel leading the counsel on record for the first respondent / plaintiff submitted that lands conveyed under E.A.2 have been very clearly set out in Ex.A.2. Learned senior counsel drew my attention to Ex.A.2, wherein it has been set out as follows :
"g[spaiu tpy;ny$;
1/hPrh;nt 438y; 1k; ek;gh; e";ir Vf;fh; 2f{; kjpg;g[ U: 85000/00 2/hPrh;nt 438y; 6k; ek;gh; e";ir br/28f{; kjpg;g[ U: 11900/00 ???????????????
Mf U: 96900/00
???????????????"
15 Learned senior counsel pointed out that there is no ambiguity
whatsoever with regard to the land and the extent conveyed under Ex.A.2. Learned senior counsel also pointed out that it was not pleaded any where in the courts below that the extent actually available in ground is lesser with regard to S.No.438/1. On the legal principle that boundaries prevail over extent, it was submitted by learned senior counsel Mr.Meenakshi Sundaram that boundaries prevail over extent is not an absolute principle, but is a principle which comes into play when there is some dispute, doubt or ambiguity about the extent. In other words, only when there are doubtful and varying extents in the document, can this principle be invoked. According to learned senior counsel, there is no discrepancy, doubt or variance with regard to the extent in Ex.A.2 and therefore, this principle cannot be pressed into service to the advantage of the appellant. In support of his submission, two case laws were pressed into service.
16 The first one is of Dina Malar Publications Vs. The Tiruchirapalli Municipality and others reported in 1984 (2) MLJ 306. Relevant paragraph that was read to the Court is paragraph 9, which reads as follows :
"9. The property in question bears a subdivided town survey No. 371/2, with an extent of 2,400 sq. ft. The property in question is not an unsurveyed area or an area in respect of which the extent is in doubt. In laying down the principle that the boundaries should prevail over the extent, in the above decisions, the learned Judges have applied the following principles:(l)in case of doubtful or varying extents in the documents of title relating to the property, boundaries should be preferred to the extent; (2) Only in the absence of definite material to show the actual extent intended to be sold the boundaries should outweigh the doubtful extent mentioned in the document; (3) If the recitals in the documents and the circumstances of the case show that a lesser extent only was conveyed than the area covered by boundaries, and there is clear evidence as to the intention of the parties with reference to the extent conveyed, then the extent should prevail over the boundaries.
Bearing in mind the above said principles, we will have to examine the facts of this case. "
17 The next judgment pressed into service is Kolandasamy Gounder Vs. Thirumalai Gounder and another reported in 2007-1-L.W. 706. It is the case of the respondent / plaintiff that conditions necessary for the principle of boundaries prevail over extent, to come into play has been set out in paragraph 9 of Dina Malar judgment and this has been reaffirmed in Kolandasamy Gounder case. For this purpose, attention of this court was drawn to paragraph 14 of the said judgment which reads as follows :
"14.In the judgment reported in 1997 Law Weekly 365 which the Trial Court has relied upon, it is clearly laid down that, "in case of doubtful or varying extents in the documents of title relating to the property boundaries should be preferred to the extent. Only in the absence of definite material to show the actual extent intended to be sold the boundaries should out-weigh the doubtful extent mentioned in the document. If the recitals in the documents and the circumstances of the case shows that a lesser extent only was conveyed than the area covered by boundaries and there is clear evidence as to the intention of the parties with reference to the extent conveyed then the extent prevail over the boundaries.""
18 It was also argued on behalf of the first respondent/ plaintiff that conveyance under Ex.A.2 took place in 1994, but there was no dispute for a decade, i.e., upto 2004. Therefore, there can be no doubt that the first respondent / plaintiff had not sold lands comprised in S.No.438/4, i.e., the suit property, to the defendant. It was also urged that the defendant has not produced any revenue document whatsoever to show that defendant was in possession and enjoyment of suit property. It was also pointed out on behalf of first respondent / plaintiff that even in the caveat lodged in trial court, which was marked as Ex.A.7, defendant has not mentioned about S.No.438/4 which is the suit property.
19 This Court examined the rival submissions. This court was also taken through the judgments of the trial court and the first appellate court. Relevant exhibits being Exs.A.1, A.2 and A.3 were also examined. To be noted, Ex.A.3 is patta inter-alia for S.No.438/4 which stood in the name of the plaintiff. The extent in Ex.A.3 has been shown as 8.5 ares, which translates to 21 cents, as 2.46 cents is 1 are.
20 On perusal of case laws pressed into service and relevant paragraphs of case laws which have been extracted supra, this court does not have the slightest hesitation in accepting the submission that principle that boundaries prevail over extent is not an absolute doctrine, but is a doctrine or principle which will come into play only when there are doubtful or varying extents in the document of title relating to the property. Three conditions necessary for this principle to come into play as set out in Dina Malar case in paragraph 9 of the case law which has been extracted supra is very elucidative and lucid.
21 Samuel Nadar's case supra would have been of some help to the appellant if discrepancy between boundaries and extent was in S.No.438/6 which is contiguous to S.No.438/4. It is admitted, categoric case of the appellant / defendant that 20 cents short fall (if that be so) is only in S.No.438/1 which is not contiguous or adjacent to suit property which is S.No.438/4. Besides the submissions at the Bar, the admitted sketch scanned and extracted supra makes this position abundantly clear. Therefore, Samuel Nadar's case does not help the appellant / defendant in the instant case.
22 Once it is accepted that the principle / doctrine that boundaries prevail over extent is not absolute and that it comes into play only when there is ambiguity in the title document itself, it has to be seen as to whether there is any ambiguity in Ex.A.2. Relevant portion of Ex.A.2 has been extracted supra and there is clearly no ambiguity. However, learned senior counsel for the appellant pointed out that the northern boundary has been shown as Road and it has not been shown as S.No.438/4 which is the suit property. According to learned counsel for the appellant, this difference would demonstrate that the intention of the plaintiff was to convey the suit property also to the defendant under Ex.A.2. According to her, this is ambiguity in Ex.A.2 and therefore, boundaries prevail over extent doctrine applies to the case on hand. On first blush, this submission came across as an attractive argument, but on a close and careful scrutiny, it emerges very clearly that this does not in any manner further the case of the defendant / appellant. The reason is straight, simple, clear and logical. As would be evident from the narrative supra, it is the stated position of the appellant / defendant that there is 20 cents shortfall and that 20 cents shortfall is in S.No.438/1. It is the specific stated position of the appellant / defendant that while document Ex.A.2 conveyed 2 acres in S.No.438/1, only 1 acre and 80 cents is actually available in ground. A perusal of the surveyor sketch which was before the trial court and which was pressed into service in the hearing before this court and the undisputed sketch scanned and extracted supra, would show that even if this theory is to be accepted, then 20 cents shortfall in S.No.438/1 can definitely not be the suit property. In other words, as the defendant contends categorically that this 20 cents shortfall is in S.No.438/1, that short fall (assuming it be so) cannot be the suit property which is in S.No.438/4 as S.No.438/1 and suit property (S.No.438/4) are not contiguous. In other words, S.No.438/1 conveyed in Ex.A.2 is not contiguous to the suit property. Therefore, this shortfall theory and boundaries prevail over the extent does not carry the case of the appellant any further. To be noted, if the alleged short fall was in S.No.438/6, it would have been a different situation altogether (undisputed sketch admitted by both sides) scanned and extracted supra puts this position beyond any pale of doubt. In this view of the matter, there is no perversity in appreciation of evidence.
23 Further more, as rightly pointed out by learned senior counsel for the first respondent / plaintiff, no revenue records have been filed by defendant to show that they were in possession and enjoyment of the suit property as claimed in contradistinction to plaintiff exhibiting Ex.A.3 which is patta pertaining to the suit property. Equally, anticipating the suit, defendant had lodged a caveat in the trial court and the caveat petition has been marked as Ex.A.7. Even in this Ex.A.7, there is no mention about S.No.438/4. Therefore, even defendant's anticipation was only with regard to S.Nos.438/1 and 438/6.
24 Sum totality of the narration supra leads this court to an inevitable conclusion that both aforesaid substantial questions of law on which this second appeal was admitted cannot but be answered in favour of first respondent / plaintiff and against appellant. In other words, this court holds that the first appellate court did not err in not applying the principle of boundaries prevail over the extent qua boundaries given in Ex.A.2. With regard to substantial question of law No.2, the answer is there is no perversity whatsoever in considering the oral and documentary evidence as Ex.A.2 has been correctly interpreted by applying the boundaries prevail over extent principle in a manner known to law. Principle that any amount of oral evidence cannot alter a document is indisputable.
25 As both substantial questions of law are answered in favour of the first respondent / plaintiff and against appellant / defendant, this second appeal fails and deserves to be dismissed.
26 The appellant had taken out C.M.P.(MD)No.11582 of 2017, inter- alia, under Order XXVI Rule 9 of CPC, seeking appointment of an Advocate Commissioner to make local inspection of the properties comprised in S.Nos.438/1, 438/2, 438/4 and 438/6 with the help of Surveyor and file a detailed report. To be noted, senior counsel on both sides by consent submitted in unison that this C.M.P. shall be heard along with the main second appeal. As rightly pointed out by learned senior counsel for the first respondent / plaintiff, as the plea of 20 cents shortfall has not been taken in courts below, it cannot be opened now in the second appeal stage under Section 100 CPC. On a demurrer, even if it is construed that it can be raised now, it would not be of any avail or help to the appellant, if Advocate Commissioner is appointed as the shortfall according to the appellant is only in S.No.438/1 and not in S.No.438/6. As mentioned supra, it is only S.No.438/6 that is contiguous to the suit property comprised in S.No.438/4 and not S.No.438/1. Therefore, this civil miscellaneous petition being C.M.P.(MD)No.11582 of 2017 also deserves to be dismissed. If such a prayer is permitted at the second appeal stage, it can open floodgates for virtual retrial.
27 For the reasons alluded to supra, this second appeal stands dismissed. Civil Miscellaneous Petition being C.M.P.(MD)No.11582 of 2017 is dismissed. Consequently, all connected miscellaneous petitions stand dismissed. No costs.
To
1.The Principal Subordinate Judge, Tenkasi.
2.The District Munsif, Shencottai.
.