JUDGMENT
R. Sengottuvelan, J.
1. This appeal has been preferred by the plaintiff in O.S. No. 831 of 1977, who lost his case before both the courts below.
2. The brief facts of the case giving rise to this second appeal are as under-The suit property, comprises an extent of 60′ x 40′ in S.F. No. 371/2. It was originally a blind alley, which was not used as a public road and later on, the Municipal Council after obtaining the sanction of the State Government under Exhibit B1, dated 24th July, 1972, sold the same to one Panneerselvam under Exhibit A1, dated 9th May, 1974, who sold the same under the original of Exhibit A2 in favour of Ramasubbu Iyer, representing the appellant herein. The area mentioned in the sale deed is 60′ x 35′ i.e., an area of 2,100 sq. ft. But the blind-alley measured 60′ x 40′. The case of the plaintiff is that the sale under Exhibit A1 is by boundaries and all the land comprised within the four boundaries mentioned in Exhibit A1 passed on to the vendee,! Panneerselvam under the original of Exhibit A2. On the other hand, the case of the Municipal Council as well as the other respondents herein is that only an extent of 60′ x 35′ was sold to the appellant’s predecessor-in-title and hence, the appellant cannot lay claim to any extent more than 2,100 sq. ft., for which he has paid the value.
3. The trial court, after considering the evidence, both oral and documentary, came to the conclusion that the appellant is entitled only to the extent mentioned in Exhibits A1 and A2 and he cannot claim any right to the extent over and above 2,100 sq. ft. As against the said judgment, the appellant filed A.S. 228 of 1930 on the file of the District Judge, Trichi. The District Judge also after considering the evidence, concurred with the finding of the trial Court and dismissed the appeal As against the concurrent finding of the courts below, this second appeal is preferred.
4. Mr. T.S. Subramaniam, learned Counsel for the appellant, contends that in a case like this where both boundaries and the extent are mentioned in the sale deed, the boundaries will prevail over the extent. In support of this contention he relies upon the following decisions of this Court and of the Privy Council.
5. In Subbayya Chakkilian v. Maniam Muthiah Gounden, 46 M.L.J. 182 : 19 L.W. 245 : A.I.R. 1924 Mad. 493, a Bench of this Court held that ordinarily when a piece of land is sold with definite boundaries, unless it is clear from the circumstances surrounding the sale that a smaller extent than what is covered by the boundaries was intended to be sold, the rule of interpretation is that boundaries must Prevail as against the measurements.
6. In Siviseshamuthu v. Gopalakrishnan , Ramakrishnan, J. has held as follows:
Where the property sold is part of a definite survey number and in the sale deed 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.
In P.K.A.R.C.O.S. Society v. Government of Palestine A.I.R. 1948 P.C. 207 : 62L.W. 21, it was held that in construing a grant of land, the description by fixed boundaries is to be preferred to a conflicting description by area. The statement as to area is to be rejected as false demonstration.
7. In Church of S.I.T.A. v. Raja Ambrose (1978)2 M.L.J. 620, Balasubrahmanyan, J., has held that if the deed in question sets out the boundaries of the property conveyed then those boundaries will have to be accepted as a clear reflection of the intention of the mortgagor and they will conclude not only the exact position of the property conveyed, but also its true extent. The boundaries given in the deed will also, in such cases, prevail oven the measurements given in the deed, if those are given as approximations.
8. Relying on the abovesaid decisions, it is contended by the learned Counsel for the appellant that in the case on hand, the boundaries recited in both the documents, viz., Exhibits A-1 and A-2, cover an extent of 60′ x 40′ and the boundaries should prevail over the extent mentioned in the sale deed as 60′ x 35′.
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.
10. No doubt, in the sale deeds Exhibits A-1 and A-2, the four boundaries are given, but the measurement of the property is given as 2,100 sq. ft., whereas the extent covered by the said four boundaries, measures 60′ x 40′ i.e., 2,400 sq. ft. Now the question is, whether the property, comprised within the four boundaries or the property measuring 60′ x 35′ was sold under Exhibit A-1. In order to ascertain what was sold under the above said document, we will have to examine the evidence to find out as to whether there is anything to indicate what the parties intended to do.
11. The suit property is a portion of (sic) street, vested with the Municipality for a limited purpose. For the sale of such a property, the Municipality will have to obtain the sanction of the State Government. Here, in this case, the Municipality did obtain the sanction from the State Government, as evidenced by Exhibit B-1, viz., G.O. Ms. No. 1525, R.D. and L.A. Department, dated 24th 3uly, 1972 and Exhibit B-2, proceedings of the Collector, Tiruchi, dated 15th August, 1972.lt is seen from the said documents that the State Government had permitted the assignment of land measuring 2,100 sq. ft., in T.S. No. 371/2 to one S. Panneerselvam. The sale deed executed by the Municipality in pursuance of the above said Government Order mentions the extent sold as 60′ x 35′ with an area of 2,100 sq. ft. From the above said documentary evidence, it is clear that what was intended to be sold was only an extent of 60′ x 35′, i.e., an area of 2,100 sq. ft. In the face of this evidence, it cannot be contended for a moment by the appellant that what was intended to be sold was only the land comprised within the said four boundaries and not the extent of 60′ x 35′ as mentioned in the sale deed. 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.
12. The next argument of the learned Counsel for the appellant is that in any event, in view of the fact that in Exhibit A-l, the extent is mentioned as ‘2,100 sq. ft. or thereabouts’ the entire extent within the said four boundaries should be deemed to have been conveyed under Exhibit A-1. From the words ‘2,100 sq. ft. or thereabouts’ the learned Counsel wanted us to construe that even if the extent is more than 2,100 sq. ft. it should be deemed to have been covered under the sale deed in Exhibit A-l. The use of the words, ‘thereabouts’ is intended to cover any slight variation on either side. Merely because the words ‘or thereabouts’ occur in Exhibit A-1 sale deed, it cannot be contended that the parties intended to convey the entire extent covered by the four boundaries in the Sale deed which is 300 sq. ft., in excess of the area covered by measurement. The term “thereabouts” can be said to indicate a difference of one or two square feet more or less if the extent mentioned in the sale deed and not 300 sq. ft., by any stretch of imagination. Because of the clear mention of the measurement as 60′ x 35′ both in Exhibits B-1 and B-2 and also in Exhibit A-1, this contention of the learned Counsel for the appellant has to be rejected. Added to this, in Exhibit A-2, the sale deed in favour of the present appellant the extent is given only as 60′ x 35′ and the area is also given as 2,100 sq. ft. In view of this specific recital also, the contention of the learned Counsel for the appellant has to be rejected.
13. In the result, the findings of the courts below have to be upheld and the appeal has to be dismissed. There are no merits in the second appeal and the same is dismissed. However, there will be no order as to costs.
