Madras High Court
Chinnaiyan vs Ganesan Kaladi on 7 January, 2010
Author: G.M.Akbar Ali
Bench: G.M.Akbar Ali
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 07/01/2010 CORAM THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI S.A(MD)No.1169 of 2004 and C.M.P.(MD)No.8301 of 2004 and M.P.(MD)No.1 of 2007 Chinnaiyan .. Appellant/Respondent/ Plaintiff Vs Ganesan Kaladi .. Respondent/Appellant/ Defendant PRAYER The Second appeal filed under Section 100 of C.P.C., against the judgment and decree made in A.S.No.353 of 1999 on the file of the Principal Sub Court, Trichy, dated 10.10.2003 in reversing the judgment and decree made in O.S.No.635 of 1995, on the file of District Munsif Court, Lalgudi, dated 23.02.1999. !For Appellant ... Mr.S.Kadarkarai ^For Respondent ... Mr.T.M.Hariharan :JUDGMENT
The plaintiff is the appellant herein. The appeal is preferred against the judgment and decree made in A.S.No.353 of 1999, on the file of the Principal Sub Court, Trichy, dated 10.10.2003, reversing the judgment and decree made in O.S.No.635 of 1995, on the file of District Munsif Court, Lalgudi, dated 23.02.1999.
2.The brief facts of the case are as follows:-
The plaintiff had purchased 52 cents of land in S.F.No.143/9 in Seventhinathapuram, Lalkudi Taluk, from one Kambathadiyan, under a sale deed, dated 11.05.1961, which was purchased under two items, with definite boundaries as one block. By inadvertent mistake, the extent was shown as 38 cents instead of 52 cents and the vendor of the plaintiff was in possession and enjoyment of 52 cents, which was sold. The patta was granted for 52 cents and sub-divided into S.F.Nos.143/9C. The defendant is the owner of S.F.No.143/9F. The defendant had encroached on the plaintiff's property to an extent of 21 cents, in the year 1982, which is shown as 'B' schedule property. Therefore, a notice was issued in the year 1982. The defendants belatedly replied in the year 1983, claiming adverse possession, which he is not entitled. Therefore, a suit was filed for delivery of possession of 'B' schedule property to the plaintiff.
3.The suit was resisted by the defendant. The defendant would state that he had purchased 25 cents in S.F.No.143/9 and he is in possession and in enjoyment of the property for a larger extent and he has perfected title by adverse possession also.
4.Based on the above averments, the trial Court has framed triable issues and has found that the plaintiff is entitled for 52 cents of 'A' schedule property and the defendant has not proved the adverse possession and therefore, decreed the suit for delivery of possession. Aggrieved by the same, the defendant has preferred an appeal in A.S.No.353/99 and also filed an application in I.A.No.418/03 for additional evidence, under Order 41, Rule 27 of C.P.C. The first appellate Court had re-appreciated the documents and found that the plaintiff had purchased a specific extent of the land under specific boundaries and therefore, there is no question of boundaries prevail over the extent and also found that the disputed area comprised in S.F.No.143/9D, which belonged to one Viswanathan and others and the plaintiff has no right or title over the suit property. Aggrieved by the same, the plaintiff has preferred the present appeal on various grounds.
5.On admission, this Court has framed the following substantial questions of law, for consideration:-
"1.Whether the judgment and decree of the first appellate Court is vitiated for failing to consider the entire evidence on record and to apply correct principles of law?
2.Whether the judgment and decree of the first appellate Court is vitiated for having not considered the settled principles of law that the boundaries will prevail over the extent?
6.Mr.S.Kadarkarai, learned counsel appearing for the appellant would submit that the plaintiff had purchased 52 cents of land under Ex.A1, dated 11.05.1961 and has proved his possession of 52 cents under Ex.A3, Adangal Extract, and the first appellate Court has not considered this vital document. The learned counsel also pointed out that the defendant had not produced any evidence to show that he is entitled to the property in S.F.No.143/9C, though he claims leasehold right from one Visvanathan. The learned counsel would also submit that the first appellate Court has not considered Ex.A4, Field Survey Map of the year 1983, which would show that S.No.143/9C is an extent of 52 cents. The learned counsel also pointed out that the first appellate Court has not considered the Commissioner's report, which clearly shows that S.No.143/9C is 52 cents.
7.In support of his contention, the learned counsel relied on a judgment of this Court in Ramaiya Asari Vs. Ramakrishna Naicker alias Kollimalai Naicker and another reported in (2000-3 MLJ 327) wherein it has been held 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 conclude not only the exact positioning of the property conveyed, but also its true extent. The boundaries given in the deed will also, in such cases, prevail over the measurement given in the deed, if these are given as approximations."
8.The learned counsel also relied on a judgment of this Court in Kuppuswami Naidu Vs. Krishnasami Naidu reported in (2004-4 MLJ 677) wherein it has been held as follows:-
"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 conclude not only the exact positioning of the property conveyed, but also its true extent. The boundaries given in the deed will also, in such cases, prevail over the measurement given in the deed, if these are given as approximations."
9.On the contrary, Mr.T.M.Hariharan, learned counsel for the respondent would submit that the plaintiff has to prove his case and he cannot depend upon the weakness of the defendant's case. The learned counsel also pointed out that the plaintiff has not proved that he has purchased 52 cents from his vendor and therefore, the first appellate Court is right in dismissing the suit.
10.I have heard the submissions of the learned counsel for the appellant as well as the learned counsel for the respondent and also perused the materials available on records.
11.The suit was filed for delivery of possession of 'B' schedule property, which is an extent of 21 cents, comprised in 'A' schedule property and the description of 'A' schedule property is of 52 cents of land in S.No.143/9C of Seventhinathapuram Vilalge, Lalkudi Taluk. The specific boundaries are also shown in the schedule of property. According to the plaintiff, he had purchased the property under Ex.A1, dated 11.05.1961 from one Kambathadiyan. According to the plaintiff, what was purchased is 52 cents of land in old S.No.143/9, under Ex.A1, which is in his possession and occupation, as per the Chitta, Adangal, issued under Ex.A3, but, the recitals would show that only 38 cents of land, under two items. According to the plaintiff, S.F.No.143/9 was sub-divided into A,B,C,D,E,F. S.F.No.143/9C, is shown in FMB Sketch, Ex.A4, which was given in the year 1973. According to the plaintiff, in the year 1982, the defendant, who is the owner of S.F.No.143/9F, had encroached 21 cents in S.F.No.143/9C, which is 'B' schedule property. The defendant had also purchased certain properties under Exs.B1 and B2, totalling to an extent of 13 cents in old S.No.143/9, out of 2 acres 53 cents. However, the defendant was issued with a joint patta as early as 10.04.1982, under Ex.B8, for an extent of 1 acre 40 cents in S.F.No.143/9E. The plaintiff relied on the FMB Sketch in Exs.A3 and A4, Adangal. A Commissioner was appointed by the trial Court, who inspected the suit property and had filed a report and plan. According to the Commissioner, the entire S.F.No.143/9 is total extent of 2 acres 9 cents, as measured. According to the Commissioner, 'A' Register, dated 31.01.1987, contained S.No.143/9 A,B,C,D,E,F, and S.F.No.143/9C is an extent of 15-1/2 ares, which is approximately 38 cents. S.F.No.143/9B is an extent of 10 ares, which is approximately 24 cents. S.F.No.143/9C is 56-1/2 ares, which is approximately 1 acre 40 cents and S.F.No.143/9F is 7 ares, approximately 17 cents. But, according to the Commissioner, S.F.No.143/9D stands in the name of one Viswanathan and others and S.F.No.143/9C stands in the name of the defendant and others and S.F.No.143/9F stands in the name of one Jayamary. What is interesting is that when comparing Ex.A4 and Commissioner's plan Ex.C2, the arrangement of the sub-division totally differs. In Ex.A4, the sub-division 9A,B,C forms one part and Sub-division 9D,E,F forms another part. Therefore, 9C is shown as larger extent. As per 1987 records, S.F.No.143/9C is shown as larger extent and S.F.No.143/9D forms a part of S.F.Nos.143/9C and 9F are also forms a part of S.F.No.143/9C. However, identification of the property was not objected by the plaintiff, as it stands to the extent of S.F.No.143/9C. As per the Commissioner's plan and measurement, it is only 15-1/2 ares, which is equivalent to 38 cents. The defendant was all along given a patta for S.F.No.149/9C of total extent of 56-1/2 ares. But, the plaintiff, in paragraph No.5 of the plaint, would state that the defendant is the owner of S.F.No.143/9F, an extent of 25 cents. But, at the time of Commissioner's inspection and measurement, the total measurement differs.
12.The only defence taken by the sole defendant is that he is in possession of a larger extent of the property and he has prescribed title by adverse possession. Later, in the evidence, he put forward the defence that he has the lease-hold right over the property, from one Visvanathan.
13.It is well-settled law that the boundaries will prevail over the extent and it is also true that if the vendors have any complication between the description of boundaries and extent, the boundaries will prevail over the extent. What was sold under Ex.A1 is a specific extent of 38 cents. It is to be noted that the vendor of the plaintiff has sold out of 2 acres 59 cents of total extent in S.F.No.143/9, an extent of 38 cents under 2 items. It is also to be noted that under Ex.B4, dated 25.08.1958, the vendor of the plaintiff sold an extent of 25 cents of land to one Sundarraj Iyer S/o.Subramani Iyer, who is the vendor of the defendant.
14.This Court had an occasion to dealt with a similar matter in R.Nainar Pillai and Another Vs. Subbiah Pillai reported in (2008 3 MLJ 219), wherein this Court has held as follows:-
"17.Next, it is contended by the learned counsel for the respondents that the boundaries should prevail over measurements. Of course, there can be no dispute over that contention; but, it is to be seen as to when such a principle has to be accepted. It is trite law that boundaries prevail over measurements in the absence of any mention of the latter. In the instant cases, the plaintiff has come out with specific measurements. That being so, it is not proper on the part of the plaintiff to contend that if the will 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 conclude not only the exact positioning of the property conveyed, but also its true extent and to take shelter of the principle "boundaries prevail over measurements"
15.It is settled principle that onus is on the plaintiff to prove his case and the plaintiff cannot take advantage of the weakness in the defence. When the plaintiff has come to the Court with a specific case that the boundary recitals in his sale deed prevails over the extent, then the burden is solely upon him to prove the same. In the present case, the recitals would show the specific boundary and also specific extent, the plaintiff seems to have claimed a larger extent on the basis of Exs.A3 and A4, Adangal Extract and FMB Sketch. But, even on the date of filing of the suit, the defendant was issued a patta under Ex.B8, for one acre 40 cents, in S.F.No.143/9C. But, he was described in the plaint as the owner of S.F.No.143/9f, which is patently wrong. The Commissioner has filed his report and sketch showing the entire S.F.No.143/9 which has been subdivided as S.F.Nos.143/9A,B,C,D,E,F. Therefore, the principle is not applicable to the facts of the present case and the first appellate Court is right in reversing the judgment of the trial Court.
16.In the result, the appeal is dismissed by confirming the judgment and decree made in A.S.No.353 of 1999, on the file of the learned Principal Sub Court, Trichy, dated 10.10.2003, No costs. Consequently, connected miscellaneous petitions are also dismissed.
MPK To
1.The learned Principal Sub Judge, Trichy.
2.The District Munsif, Lalgudi.