The Madras High Court dismissed this second appeal regarding a claim of title to disputed land. Rejecting the appellant's argument that boundaries prevail over extent, the Court held that mere mention of a boundary on a title deed without independent proof of the boundary owner's title is insufficient. The appeal was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 04.11.2016
PRONOUNCED ON : 08.11.2016
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Second Appeal No.225 of 2008 and M.P.No.1 of 2008
Pavadai ...Appellant/Appellant/Plaintiff Vs 1.Perumal Gounder 2.Sugumaran ... Respondents/Respondents/Defendant
Prayer:Second Appeal has been filed under Section 100 of C.P.C., against the decree and judgment passed in A.S.No.140 of 2003 on the file of the II Additional Subordinate Court, Villupuram, dated 19.07.2006 confirming the decree and judgment in O.S.No.214 of 2000 on the file of the I Additional District Munsif Court, Thirukoilur dated 06.03.2002.
For Appellant : Mr.S.Selvathirumurugan For Respondents: No Appearance JUDGMENT
This is a plaintiff's appeal. The dispute is in respect of 1 ares (approximately 2 ½ cents of land) in survey No. 108/14 of Emappur Village, Thirukovilur Taluk, Villupuram District. The claim of the plaintiff is that his father Mr.Masilamani Gounder, got the suit property by partition and was in his possession. After the death of Mr.Masilamani Gounder intestate, his mother Mrs.Visalakshi was managing the property till the plaintiff attained majority. Thereafter, the plaintiff is in possession of the suit property and he is using it to pile haystacks and wastes.
2.The first defendant on 09.07.1963 purchased 3 cents of land on the western side of the suit property from one Mr.Thandavaraya Gounder who is none other than the paternal uncle of the plaintiff. Alleging that the defendants on 05.05.2000 tried to enter upon the suit property illegally by force which was successfully thwarted, the suit for the reliefs
of declaration of title over the suit property and permanent injuction restraining the defendants and their men and agent from interfering the peaceful possession was laid in O .S. 214/2000.
3.Both the courts below rejected the plaintiff's case on finding out the fact that S.Nos.108/12, 108/13 and 108/14 were the family properties of Mr.Thandavara Gounder and Mr.Masilamani Gounder who were brothers. Mr.Masilamani Gounder pre deceased his brother Mr.Thandavara Gounder leaving behind his wife Mrs.Visalakshi and only son Mr.Pavaadai, the plaintiff in the suit. Mr.Thandavaraya Gounder has dealt with the property falling under S.No.108/14, as his property acquired through inheritance as well as self earned. The total extend of land in S.No 108/14 is 11 cents. Out of 11 cents Mr.Thandavraya Gounder has first sold 6 cents of land to Mr.Munusamy Gounder and the balance 5 cents to Mr.Parimala Gounder. On his part, Mr.Pavaadai, the plaintiff herein has dealt with the property falling under S.No.108/12 and S.No.108/13 and had sold 5 cents of land out of 14 cents though Ex.B-10 - sale deed in favour of the second defendant Mr.Sugumar.
4.In the light of the above facts, the courts below have held that the plaintiff had no right in S.No.108/14. At no point of time patta to S.No. 108/14 stood in the name of the plaintiff or his father or mother. Just because the plaintiff's mother name is shown as Eastern boundry owner, it will no way confer any title over the property falling on East of first defendant's land. Therefore, in the absence of patta or title deed, the plaintiff has no basis to claim declaration over the suit property. Further, the courts below have held that, though the sale deed (Ex A-2 = Ex B-1) mentions 3 cents of land with measurment of 20 x 130 fts, going by the measurement the extend works out to 5 cents. Therefeore, the courts below have concurrently concluded that the Eastern boundry is wrongly mentioned in Ex A-2. The courts below also held that physically on the ground, there is no land to the extent of 1 ares (2 ½ cents) left in S.No. 108/14 with the discription as found in the suit schedule after Mr.Thandavaraya Gounder sold it to Mr.Munusamy and Mr.Parimala Gounder. The courts below after considering Ex.A.2 the title deed in favour of Mr.Parimala Gounder, the first respondent herein and Ex. B-2 joint patta issued in favour of Mr.Parimala Gounder, Mr.Vardaraja Gounder and Mr.Tulasinga Gounder for S.No.108/14 on subdivision as S.Nos.108/14 A and 108/14 B after the UDR survey has held that the plaintiff has not proved his case of title or contineous possession adverse to the true owner for more than 12 years.
5.In the above circumstances, having lost before both the courts, it is canvassed before this Court apart from other grounds, that the boundaries prevail over the extent therefore, the finding of the courts below is perverse.
6.This court has formulated the following substantial question of law:-
“1) When admittedly this Hon'ble Court has held in its judgement in 2007 1 CTC 577 that Boundary will prevail over the extent mentioned in document, when boundaries are given in such document, whether the conclusion of both the lower courts that the boundaries spelt out in the sale deed dated 9.7.1963 Exs. A2 & E.B1 will not be correct is band in law or not?
7.No doubt, if the measurements and extent are not given or what is given found to be vague or in approximation and whereas the boundries are spelt out specifically, then boundaries will prevail over the extent . This proposition of law is to be applied to ascertain the exact extent of land conveyed through the subject deed under scrutiny. This proposition cannot be applied to confer title to the person whose name is referred as a person sharing the boundry. More so, when that person has no
title deed or documents to show he is in possession and enjoyment of the land shown as one of the boundry. It is the ordain principle under civil law that the person who pleads right over the property through inheritence or through prescription should place before the court how he is in possession and enjoyment of the suit property.
8.In this context, it is relevant to refer the observation made in Ramaiya Asari -vs- Ramakrishna Naicker and others, reported in 2003( 3 ) MLJ 327 :
“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 lokk 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 approprimations.”
9.In this case, interestingly, in Ex A-2 = B=1 which is the title deed in favour of the first defendant who is the first respondent herein, the courts have found that except the length and breath measurements 20 x 130 ft, neither the extent nor the boundry is correct. While in Ex A-2 executed in the year 1963 for a land measuring 20 x130 ft (2600 sq ft) the extent is shown as 3 cents , whereas in Ex B-10 executed in the year 1974 by the appellant herein in favour of the second defendant Mr.Sugumar, for a land measuring 64 x 19 ft (1216 sq ft) also the extent is shown as 3 cents and for a land measuring 58 x 19 ft ( 1102 sq ft) the extent is shown as 2 cents. Therefore, even going by the appellant's own document Ex.B.10 land measuring 20 x 130 ft must surely be more than 3 cents.
10.The property in dispute as described in the plaint schedule does not mention where the 2 ½ cents of land is located in S.No. 108/14 which spreads to 11 cents. Even if the first respondent was conveyed only 3 cents of land through Ex A-
2 = Ex B -1 it is not an automatic corrolary to hold the excessive land found on ground should go to the plaintiff who claims to share one of the four boundries. In this case, sharing the Eastern boundry of the first respondent land itself not proved by the appellant. Except claiming that in Ex A-2 the land of Mrs.Visalakhsi is shown as the Eastern boundary, no other document is placed to show Mrs.Visalakshi owns land East of the first respondent property. In the absence of title deed to show East of the first respondent land is bounded by the land of Ms.Visalakshi, there is no illegality in discarding the boundary recited in Ex.A.2 by the Courts below.
11.Above all, to give a quitus to the all controversies, through D.W.2, it is established that the revenue department while making the UDR survey has found that it is the first respondent who is in possession and holding the title for S.No. 108/14 along with two others but not the appellant herein. Thus, the joint patta marked as Ex B-2 proves the possession of the dipsuted land is in possession of first respondent. Admittedly the property in dispute is a vacant land except used to pile haystacks and wastes. The presumption under law is that, possession follows title. The Courts below in the said circumstance had rightly thought fit, it is not necessity to appoint Commissioner to note the physical feature.
12.Therefore, this Court does not find any point to interfere the findings of the courts below. The substantial questions of law formulalted are not sustainable in view of the facts and circumstances discussed above.
13.In the result, the second appeal is dismissed with costs. Consequently, connected miscellaneous petition is closed.
Sd/Assistant Registrar(CS VII)
//True Copy//
Sub Assistant Registrar
To
1.The II Additional Subordinate Court, Villupuram.
2.The I Additional District Munsif Court, Thirukoilur.
Second Appeal No.225 of 2008
cnr[co]
srg 04/01/2017
3 issues framed by the court
Whether boundaries spelt out in a sale deed prevail over the extent mentioned when the latter is vague or approximate?
Whether the lower courts were correct in refusing to appoint a Commissioner to ascertain the total extent of land when the appellant did not pray for the same?
Whether a person claiming title through inheritance must prove possession and enjoyment of the land shown as their boundary in another's deed?
Pavadai
Perumal Gounder
Sugumaran
G. Jayachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
