IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:07.12.2010 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.859 of 2008 and M.P.No.1 of 2008 1. A Chandran 2. A. Palani ... Appellants/plaintiff vs. Periyammal ... Respondent/Defentant This second appeal is filed against the decree and judgment dated 24.01.2008 made in A.S.No.112 of 2007 on the file of the Additional Subordinate Judge, Salem reversing the decree and judgment dated 09.03.2007 made in O.S.No.289 of 2005 on the file of the Principal District Munsif Court, Salem. For Appellants : Mr.S.Sivakumar For Respondent : Mr.D.Shivakumaran J U D G M E N T This second appeal is focussed by the original plaintiffs, animadverting upon the judgement and decree dated 24.01.2008 passed in A.S.No.112 of 2007 by the learned Additional Subordinate Judge, Salem, in reversing the judgment and decree of the trial Court, namely, Principal District Munsif Court, Salem, in O.S.No.289 of 2005. For convenience sake, the parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. Heard both sides. 3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (i) The plaintiffs filed the suit seeking declaration and injunction in respect of the property situated in S.No.23/3 including a well therein. The defendant filed the written statement and contested the suit, whereupon issues were framed. https://hcservices.ecourts.gov.in/hcservices/ (ii) During trial, the first plaintiff/A.Chandran examined himself as P.W.1 along with P.W.2/Azhagesan and Exs.A1 to A6 were marked. The defendant/Periyammal examined herself as D.W.1 on her side along with D.W.2/Marimuthu and D.W.3/Dhanalakshmi and Exs.B1 to B11 were marked. 4. Ultimately, the trial Court decreed the suit. Being aggrieved by and dissatisfied with the same, the defendant preferred appeal, whereupon the lower appellate Court on merits, set aside the judgment and decree of the trial Court and dismissed the original suit. 5. Challenging and impugning the judgment of the appellate Court, the Second Appeal was filed by the plaintiffs on various grounds, the gist and kernel of them would run thus: The lower appellate Court failed to take into account the purport of Exs.A1 and A2 vis-a-vis Ex.B2. The oral evidence of D.W.1 also was not considered by the appellate Court but it simply upset the reasoned judgment of the trial Court. 6. My learned Predecessor framed the following substantial questions of law: "1. Whether the Lower Appellate Court was right in law in ignoring the documentary evidence (Exs.A1 and A2) relating to Suit property and also came to the conclusion by misreading the Ex.B2 that the Respondent is having title over the well? 2. Have not the Lower Appellate Court committed an error in non-suiting the Plaintiff by discarding the evidence of P.W.1 and P.W.2 and without appreciating the documents Ex.A1 and A2?" 7. After hearing both sides, I thought fit to frame the following additional substantial questions of law also, as per proviso to Section 100 of CPC and both sides took notice of it and submitted their further arguments also. "3. Whether in the facts and circumstances of this case, the description of the boundaries in Ex.B2 will prevail over the extent? and whether the antecedent title deed would have priority over the subsequently emerged sale deeds, Exs.A1 and A2 executed by the same vendor https://hcservices.ecourts.gov.in/hcservices/ who executed Ex.B2?" 8. Tersely and briefly, the arguments as put forth and set forth on the side of the learned counsel for the appellants in Second Appeal/plaintiffs would run thus: (a) Malayoora Gounder purchased the property measuring an extent of 1.68 acres of land in S.No.23/3. Subsequently, he sold as per sale deed Ex.B2 dated 20.03.2002, an extent of 80 cents on the western portion of the entire 1.68 acres in favour of the defendant. Subsequently as per Ex.A1, the sale deed dated 24.06.2002 an extent of 43 cents of land plus one cent of land which allegedly included a half portion of the well was sold by Malayoora Gounder in favour of the first plaintiff. On the same day, the same Malayoora Gounder sold in favour of the second plaintiff another extent of 43 cents of land plus one cent of land which allegedly included the remaining half portion of the well. (b) Simply because in the earlier sale deed Ex.B2, there is no reference to the remaining property of the Malayoora Gounder situated to the south of the property sold under Ex.B2 in favour of the defendant, it cannot be contended that the said Malayoora Gounder lost his right over the two cents which existed to the south of the 80 cents of land which was sold under Ex.B2 in favour of the defendant. (c) Tamilarasi had no title to S.Nos.23/12A or 23/12C and she allegedly sold as per Ex.B3, the said well in favour of the defendant, which is untenable in law. (d) The extent will prevail over boundaries and blindly it cannot be taken that because the southern boundary in respect of the 80 cents of land which was sold under Ex.B2 to the defendant by Malayoora Gounder was referred to as the cart pathway, that it does not mean that the entire extent which is situated to the north of that southern boundary would automatically go to the defendant. (e) The lower Court correctly found fault with the Commissioner's report and also disbelieved the case of the defendant and decreed the suit. However, the appellate Court misapplying the law and misinterpreting the oral and documentary evidence simply allowed the appeal and set aside the judgment and decree of the lower Court and ultimately dismissed the suit warranting interference of this Court in the Second Appeal. 9. By way of torpedoing and pulverising the arguments as put forth and set forth on the side of the plaintiffs, the learned counsel for the defendant would advance his arguments thus: https://hcservices.ecourts.gov.in/hcservices/ (a) The trial Court miserably failed to take into consideration that Ex.B2 dated 20.3.2002 is anterior in point of time to the sale deeds Ex.A1 and Ex.A2 which emerged subsequent to Ex.B2. (b) It is obvious and axiomatic that the common owner Malayoora Gounder after parting with his title and possession in respect of 80 cents of land on the western portion of his land in favour of the defendant as per Ex.B2, could not have sold any portion on the western side of his property in S.No.23/3 to the plaintiffs. This fact has not been considered by the trial Court, but the appellate Court appropriately and appositely, correctly and convincingly for the reasons set out in the judgment decided the appeal, warranting no interference by this Court in the Second Appeal. (c) There is no question of law, much less substantial question of law emerging out of the decision rendered by the appellate Court. Accordingly, the learned counsel for the defendant prays for the dismissal of the Second Appeal. 10.. All the points are taken together for discussion as they are inter linked and inter woven with one another. 11. Indubitably and indisputably, incontrovertibly and unarguably, Malayoora Gounder happened to be the original owner of the property measuring an extent of 1.68 acres of land in S.No.23/3 in Kolathukombai village. It is just and proper to extract hereunder the schedule of property which happens to be the subject matter of the sale as per Ex.B2 in favour of the defendant: "brhj;J tptuk; nryk; fpHf;F o. thHg;gho rg; o. thHg;gho tl;lk;. nfhyhj;Jf;nfhk;ig fpuhkj;jpy;. r/vz;/23-3. g[/bcwf;/0/68/0. (,Ugj;jp K:d;wpy; K:d;W. mWgj;jp vl;L Vh;!;) ,jw;F Vf;fh; 1/68 brz;L epyk; ,jpy; nkw;Fgf;fk; V/0/80 brz;Lf;F brf;Fge;jp/? vd; kPjp epyj;Jf;Fk; (nkw;F) bt';fnlrd; epyj;Jf;Fk; (bjw;F) tz;og;ghijf;Fk; (tlf;F) Xilf;Fk; (fpHf;F) ,jd; kj;jpapy; cs;s V/0/80 brz;l; epyk; g{uht[k; kw;Wk; khK:y; tz;og;ghij tHpeil ghj;jpaKk; nrh;e;Jk; ,e;j fpua Mtzj;jpw;F rk;ke;jg;gl;lJ/ brhj;J thHg;gho a{dpad; vy;iyf;F cl;gl;lJ MFk;/ epy kjpg;g[ U:/40.000-? tz;og;ghij tHpeilf;F U:/100-? Mf khh;f;fl; kjpg;g[ U:/40.100-? MFk;/" "brhj;J tptuk; nryk; fpHf;F hpo. thHg;gho rg; hpo. thHg;gho tl;lk;. nfhyhj;Jf;nfhk;ig fpuhkk;/? rh;nt vz;/23-3. g[/V/1/68. jP/U:/3/78 ,jpy; V/0/43 brz;Lf;Fbrf;Fge;jp tptuk;/? tz;og;ghijf;Fk; (tlf;F) re;jpud; fpuak; bgWk; epyj;jpw;Fk;; (fpHf;F) fhspKj;J epyj;Jf;Fk; (nkw;F) ghf;fpak; epyj;jpw;Fk; (bjw;F) kj;jpapy; cs;s V/0/43 brz;L epyk; g{uht[k; nkw;go bek;ghpy; fpzh;ghfk; V/0/02 brz;Lf;F brf;Fge;jp/? bghpak;khs; ,e;j bek;ghpy; fpuak; bgw;w V/0/80 brz;L epyj;jpw;Fk; (bjw;F) bt';fnlrd; epyj;jpw;Fk; (tlf;F) Xilf;Fk; (fpHf;F) r;ejpud; fpuak; bgWk; epyj;jpw;Fk; (nkw;F) kj;jpapy; cs;s V/0/02 brz;oYk ,jpYs;s fpzh; 1Yk; bghJtpy; ngh;ghjp ghj;jpak; g{uht[k;/ i& fpua ghfj;jpw;F khhpak;kd;nfhtpy; ,Ue;J fpHnkyhf https://hcservices.ecourts.gov.in/hcservices/ bry;Yk; tz;og;ghij tHpahf tz;o thfd';fs; nghftut[k;. Ml;fs; nghftut[k;. fhypeilfs; nghftut[k; jlghj;jpak; cz;L/ kw;Wk; rfy <!;l;bkz;l; ghj;jpak; Toa[k; fpuak;/ fpuar; brhj;J thHg;gho a{dpaDf;Fk; nfhyhj;Jnfhk;ig Cuhl;rpf;Fk; cl;gl;lJ/@ It is crystal clear from a mere perusal of the aforesaid schedule of property that the said Malayoora Gounder, the vendor did not retain any property to the south of the 80 cents of land, which was sold on the western side of his total holdings . 12. At this juncture, it is worthwhile to extract the schedule of the properties as found detailed and described in Exs.A1 and A2.: "brhj;J tptuk; nryk; fpHf;F hpo/thHg;ggho rg;/hpo thHg;gho tl;lk; nfhyhj;Jf;nfhk;ig fpuhkk;/? rh;nt vz; 23-3. g[/V/1/68. jP//U:/3/78 ,jpy; g[/V/0/43 brz;Lf;F brf;Fge;jp/? tz;og;ghijf;Fk; (tlf;F) bghpak;khs; fpua epyk; ,nj bek;ghpy; V/0/90 brz;Lf;Fk; (fpHf;F) bt';fnlrd; epyj;jpw;Fk; (bjw;F) gHdp epyj;jpw;Fk; (nkw;F) kj;jpapy; cs;s V/0/43 brz;l; epyk; g{uht[k;/ nkw;go bek;ghpy; fpzh; ghfk; epyk; V/0/02 brz;Lf;F brf;Fge;jp tptuk;/? bghpak;khs; fpuak; bgw;w epyj;jpw;Fk; (bjw;F) bt';fnlrd; epyj;jpw;Fk; (tlf;F) re;jpud; ,d;W fpuak; bgWk; epyj;jpw;Fk; (nkw;F) Xilf;Fk; (fpHf;F) ,jd; kj;jpapy; cs;s V/0/02 brz;oYk;. , jpYs;s fpzh; 1Yk; bghJtpy; ngh;ghjp ghj;jpak; g{uht[k; kw;Wk; i& fpua ghf epyj;jpw;F khhpak;kd; nfhtpypy; ,Ue;J fpHnkyhf bry;Yk; tz;og;ghijapy; ePh; tz;o thfdk; Xl;of;bfhz;L nghftut[k;. Ml;fs;. fhy;eilfs; nghftut[k; tz;og;ghij ghj;jpaKk; kw;Wk; i& epyj;jpw;F Vw;gl;l khK:y; tHp eil ghj;jpaKk; rfy <!;l;bkz;l; ghj;jpaKk; Toa[k; fpuak;/ fpuar; brhj;J thHg;gho Cuhl;rp xd;wpa vy;iyf;Fk; nfhyhj;Jf;nfhk;ig Cuhl;rpf;Fk; cl;gl;lJ/" 13. It is quite obvious and axiomatic that the same Malayoora Gounder who happened to be the vendor of the defendant, sold subsequently the remaining portion of his property to wit the aforesaid two portion under Exs.A1 and A2 in favour of the plaintiffs 1 and 2 respectively. While selling them he assumed and presumed as though he retained even while selling under the sale deed Ex.B2 the property in favour of the defendant, an extent of two cents to the south of the said 80 cents of land covered by Ex.B2, was retained by him, when in fact he did not retain so. 14. The learned counsel for the defendant would convincingly advance his argument to the effect that having parted with his entitlements on the western side, Malayoora Gounder was not justified in turning turtle and having a volte face, in claiming as though he retained two cents on the western side of his entire holdings and that too to the south of the properties sold in favour of the defendant. In fact, in Ex.B2 it is found exemplified and demonstrated that the southern boundary of the property sold in favour of the defendant happened to be the cart pathway. 15. A perusal of the records would show that S.No.23/12B https://hcservices.ecourts.gov.in/hcservices/ happened to be the cart pathway and to the north of S.No.23/12B there existed S.No.23/12A which the defendant purchased from Tamilarasi vide Ex.B3 sale deed, dated 27.08.2002. Nowhere from the description of the property in Ex.B2 it could be understood that between the properties of Tamilarasi and the said 80 cents which happened to be the subject matter of Ex.B2, the said Malayoora Gounder retained an extent of two cents. 16. At this juncture, I recollect and call up the following maxim: Non Videntur qui errant consentire: He who is mistaken cannot give his consent. 17. A document would stand vitiated if there is lack of consensus or misunderstanding in describing the property. It has to be seen whether that maxim could be pressed into service for the purpose of reading something anew into Ex.B2. Malayoora Gounder consciously and specifically described the property in the schedule appended to Ex.B2 and in that without mincing words he referred to the southern boundary as the cart pathway which is found to be situated in S.No.23/12B over which there could be no controversy at all. As per Ex.B2, the vendor unambiguously and unequivocally retained his ownership only relating to the eastern portion of his entire property. 18. When this Court raised a question to both the Advocates as to whether the Commissioner appointed by the Court measured the entire property in S.No.23/3, the Advocates on both sides in unison would submit that such a measure was not undertaken and according to the learned counsel for the defendant, that was not required at all so far this case is concerned in view of the categorical stand of Malayoora Gounder himself while executing Ex.B2. 19. The learned counsel for the plaintiffs would submit that simply because of inadvertence or oversight an extent of two cents belonging to Malayoora Gounder was not found specified or exemplified in Ex.B2, he cannot be deprived of his valuable right over that two cents and according to him, extent will prevail over boundaries. 20. At this juncture, I recollect the following judgments: 1. 1996(1) MLJ 542 [Mahalingam v. A.S.Narayanaswamy Iyer and others], certain excerpts from it would run thus: "5. My attention is drawn by the senior counsel for the appellant to the following passages in Halsbury's Laws of England, Fourth Edition, Vol.50. "455. False demonstratio non nocet: It is a rule of construction, which applies to https://hcservices.ecourts.gov.in/hcservices/ all written instruments and not to Wills alone, that if, of various terms used to describe a subject matter (whether a person or property) some are sufficient to ascertain the subject matter with certainty but others add a description which is not true, these other terms are not allowed to vitiate the gift. The rule in full is false demonstratio non nocent cum de corpore constat and the second part of this maxim is an essential part of it. The false description must merely be added into that which is otherwise clear, although it need not come at the end of the sentence. The characteristic of cases within the rule is that the description so far as it is false applies to no subject at all and so far as it is true applies to one one. 457. Limits of the rule: The rule of false demonstratio is limited by a second rule of no less importance, namely that additional words are not rejected as a false description if they are capable of being read as accurate words of restriction. If, therefore, it is doubtful whether the words of the will import a false reference or description, or whether they are words of restriction that limit the generality of former words, the court never presumes error or falsehood and the latter construction is preferred. Accordingly, where there exists some subject as to which all the descriptions are true, and some subject as to which part is true and part false, the words are considered to be words of true restriction, so that they refer to that subject only as to which all the descriptions are true." 6. Reference is made to the judgment in Anderson v. Berkley, (1902) 1 Ch.D.936 and the following passage therein. "It is not a rule, however, that, where the description is made up of more than one part, and one part is true but the other is false, then, if the part which is true describes the subject or object of the gift with sufficient certainty, the untrue part will be rejected, and will not vitiate the gifts." https://hcservices.ecourts.gov.in/hcservices/ 7. A Division Bench of this Court in Krishnamurthy v. Venkataramanappa (1947) 2 MLJ 247 extracted the above passage from Halsbury and applied the doctrine of falsa demonstratio. 8. Reliance is also placed on a judgment of mine in Madhavan v. Kannammal, (1989)1 MLJ 136, wherein I have pointed out that it is not proper for the court to adopt a construction which would lead to a redundancy of certain words used by the testator, that any construction of a document must be in such a manner that it should give a meaning to all words used by the testator and that the entire document must be taken into consideration and the language used by the testator has to be considered before the interpretation is given. 11. A single Judge of this court relying upon the aforesaid judgment held in Siviseshamuthu v. Gopalakrishna, A.I.R.1963 Mad.147, that where the property sold is part of a definite survey number and in the sale deed the exact boundaries of the part sold are given and the area mentioned is only approximate, the description by boundaries should prevail in ascertaining the actual property sold under the document. 12. Reliance is also place on the judgment of another single Judge in Church of South India v. Raja Ambrose, (1978) 2 MLJ 620. The learned Judge has however taken care to hold that the question depends upon the intention of the parties as expressed in the relevant conveyance deed." 2. (2002) 2 MLJ 612 [State of Tamil Nadu, rep. by its District Collector, Tirunelveli v. Mohamed Nagib and others], certain excerpts from it would run thus: "4.1. In my considered opinion, it is well settled in law that the boundaries will prevail over the extent alone, but, not the Survey Number also. That apart, the said principle is applicable only in a transaction agreed and entered between the parties, but not in a case of unilateral approach. 4.3. The principle that the boundaries prevail over the extent, in my considered opinion, shall not construe boundaries prevail over the Survey Number also, when the respondents/plaintiffs themselves have stated in the plaint that they had purchased the suit https://hcservices.ecourts.gov.in/hcservices/ property, which is located only in T.S.No.230/1 and not otherwise. It may also be noted that the respondents/plaintiffs had not chosen to seek an amendment that they had purchased the suit property located in T.S.No.234 at all." 3. 1984(2) MLJ 306 [Dina Malar Publications, a Tamil daily, reptd., by its Partner, R.Krishnamoorthy v. The Tiruchirapalli Municipality, reptd., by its Executive Authority, the Commr., and others], an excerpt from it would run thus: "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 unserveyed 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:- (1) 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 abovesaid principles, we will have to examine the facts of this case." The law as it stood at one point of time was that boundaries will prevail over extent. But subsequently, this Court took a view that in all cases blindly such a proposition cannot be ushered in and it all depends upon facts and figures. So far this case is concerned, the extent claimed by the plaintiffs is only a small extent of two cents, wherein the well is alleged to have been situated even before execution of the sale deed Ex.B2 in favour of the defendant. 21. The learned counsel for the defendant has raised a pertinent question that there is no iota or shred, shard or molecular extent of evidence to highlight and spotlight the fact that Malayoora Gounder himself in his sale deed ever purchased such a well in S.No.23/2. According to him, the records would speak by themselves that the well is situated only in S.No.23/12A and not in S.No.23/2 and accordingly, he would submit that absolutely there is no force in the contention https://hcservices.ecourts.gov.in/hcservices/ of the plaintiffs as though they purchased a well in S.No.23/3. The evidence on record also would not demonstrate and display that any well was situated in S.No.23/3. 22. The learned counsel for the plaintiffs drawing the attention of this Court to the Commissioner's report and sketch Exs.C1 to C3 would submit that the Commissioner in his report stated as though half well was situated in S.No.23/3 and remaining half well in S.No.23/12A and no doubt for that there is no clinching evidence, but the trial Court was not justified in allowing the appeal by disregarding the Commissioner's report in toto. 23. Virtually, the trial Court was carried away by the fact that one and the same common owner, namely Malayoora Gounder executed Ex.B2 as well as Exs.A1 and A2 and that accordingly, all the deeds should be honoured and respected with reverence, which in my opinion was wrong. A common owner after executing the sale deed in favour of one person would get himself divested of the area which he sold. In this case, on the western portion of the entire extent of his holdings, he already got himself divested of his rights by virtue of Ex.B2 and if at all he had any right it was only in respect of the eastern portion. However, while selling the eastern portion, he also tried to sell a small portion measuring an extent of two cents to the south of the said extent of 80 cents of land covered under Ex.B2. In this factual matrix, it is pellucidly ad palpably clear that so far this case is concerned, boundary will prevail over extent and the plaintiffs cannot try to question this by arguing that unwittingly wrong southern boundary was specified and that the defendant cannot try to achieve success in the litigative battle by placing reliance only on the boundaries. 24. The fact also remains that S.No.23/12A is situated to the south of S.No.23/3 and more specifically to the south of the extent purchased under Ex.B2 by the defendant. S.No.23/12B refers to the cart pathway which is found referred to in Ex.B2 as well as in Exs.A1 and A2 as the southern boundary in all the schedules appended to those sale deeds. Hence, I am of the considered view that the appellate Court correctly applied the law and decided the lis. 24. In the result, the substantial question of law No.1 is decided to the effect that the lower Court was right in ignoring the description in Exs.A1 and A2 by applying the correct proposition of law in support of the description as found in the recitals in Ex.B2. 25. The substantial question of law No.2 is decided to the effect that the lower appellate Court correctly discarded the evidence of P.Ws.1 and 2 in the wake of the recitals in Ex.B2. https://hcservices.ecourts.gov.in/hcservices/ 26. The substantial question of law No.3 is decided to the effect that so far this case is concerned, boundaries will prevail over extent and the anterior title deed Ex.B2 will prevail over the subsequent title deeds Exs.A1 and A2. Accordingly, the Second Appeal is dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar Gms To 1. The Additional Subordinate Judge, Salem. 2. The Principal District Munsif Court, Salem. +1 CC to Mr.D.Shivakumar Sr.87510 S.A.No.859 of 2008 MBS (CO) BMD https://hcservices.ecourts.gov.in/hcservices/