BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10/03/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Rev.P.(MD) No.52 of 2007 in S.A.No.423 of 1996 Seethalakshmiammal .. Petitioner/R1/D1 Vs 1.Hariram Sundaravel .. Respondent No.1/ Appellant/Plaintiff 2.Sriram Ashok .. Respondent No.2/ R2/D2 Prayer Review Petition filed under Order 47, Rules 1 and 2 read with Section 114 of CPC, to review the Judgement and Decree dated 20.12.2006 passed in S.A.No.423 of 1996. !For Petitioner ... Mr.V.Shanmugam for Mr.N.Dilipkumar ^For Respondent No.1 ... Mr.V.Perumal For Respondent No.2 ... Mr.V.Seetharaman :JUDGMENT
This review petition is focussed as against the Judgement and Decree dated
20.12.2006 passed in S.A.No.423 of 1996 by this Court.
2. The parties are referred to hereunder according to the litigative
status before the trial Court.
3. A re’sume’ of facts absolutely necessary and germane for the disposal
of this review petition would run thus:
Earlier this Court vide Judgment dated 20.12.2006 allowed the second
appeal setting aside the Judgments and decrees of both the Courts below and
decreed the original suit as prayed for.
4. The first defendant filed this review application on the following main
grounds among others:
The Judgment of this Court is vitiated due to error apparent on the face
of record and it is therefore liable to be reviewed. The Hon’ble Apex Court
also held that the High Court has got inherent jurisdiction to review its
Judgment passed if there are error apparent on the face of record and also if
the same is necessitated to correct mistakes in deciding the case. The
substantial questions of law were framed under Section 100 of C.P.C. and it is
extracted here under:
“(i) Whether the Courts below have properly framed the relevant and
necessary issues arising in the case and whether the failure constitutes
violation of Order 14 Rule 1 C.P.C. and such violation resulted in mistrial and
miscarriage of justice? and
(ii) Whether the suit has been properly valued?”
5. This Court has not adverted to the points for determination formulated
by the lower appellate Court. The lower appellate Court under point No.1
relating to the point for determination referred to the declaration relief.
This Court in paragraph No.41 held as under:
“41. But, no doubt, those issues should have been framed in a better
manner touching upon the interpretation of those documents discussed supra.
Even then, while dealing with the issues, both the Courts below misread the
documents and such an interpretation is found to be perverse and they arrived at
a wrong conclusion which warranted the interference of the High Court in the
second appeal. Relating to valuation of the suit property, nothing was argued
at the time of hearing the second appeal. Point Nos.(i) and (ii) are answered
accordingly”.
6. The observation made by this Court in paragraph No.41 was not factually
correct. This Court assumed as though, D2 purchased an extent of 2 acres 12
cents in S.No.30/1 of the suit property, which is not factually correct.
7. The following are also the additional grounds found set out in the
memorandum of review application:
“It is respectfully submitted that it is clearly mentioned in the said
sale deed that when buildings are put up, the purchaser must leave space on the
east with a width of 10′ from the common way leading from Srivilliputhur Road to
the schedule land and from that end upto the vendors land 10′ wide land for path
way and must construct buildings on the remaining land.
It is humbly submitted that in all the documents Ex.A-2 to Ex.A-7 it is
specifically mentioned that the suit land is a common path way and there is no
recital to the effect that it is the exclusive private path way of plaintiff and
second defendant and it is the case of the plaintiff also”.
Accordingly, the petitioner/D1 prayed for reviewing the Judgment passed by this
Court earlier.
8. The point for consideration is as to whether there is any error
apparent in the Judgment dated 20.12.2006 passed by this Court earlier or any
other error crept in the Judgment which could have been avoided by this Court?
9.The point:
Heard both sides.
10. At the first instance itself I would like to advert to paragraph No.18
of my Judgment dated 20.12.2006 and it is extracted hereunder for ready
reference:
“The true purport of Ex.A.5 is required to be considered in depth. The
second defendant, who is the brother of the plaintiff, purchased in addition to
the extent of 2 acres 12 cents in S.No.30/1, the suit pathway which is found
described at page No.16 of the original sale deed as follows:
… i&\ rh;Bt ek;ghpy; rptfhrp _tpy;ypg[j;Jhh; BuhoypUe;J ne;j epyj;jpf;F tUk;
bjd;tly; bghJg;ghij fpHBkylo 10 (gj;J) thp 1y; ghjmo rhy; ….”
13. No doubt, in paragraph No.18, the second sentence was not correctly
worded and that is why D1 would interpret as though this Court assumed that D1
purchased the entire extent of 2 acres 12 cents. What actually was intended in
that para was that D1 also had ownership right in Survey No.30/1 and I have
adverted to page No.16 of that deed and extracted it also. The narration of
facts in the earlier paragraphs of my Judgment dated 20.12.2006 would clearly
show that it was not the understanding of this Court that D2 purchased the
entire 2 acres 12 cents in S.No.30/1 and which is not the case of any one also.
It was only a typographical error. As such, that sentence in paragraph No.18
was not taken as the dominating factor for deciding the entire lis, vide the
Judgment dated 20.12.2006.
12. However, the learned counsel for the petitioner/D1 would detail and
delineate that this is a suit for declaration and for consequential relief of
injunction and in such a case, the plaintiff ought to have proved his case under
Ex.A5; there is nothing to show that the disputed pathway having a width of 11
feet, which is leading from Srivilliputhur Main Road, was purchased by the
plaintiff and in such a case barely on that short point, the suit ought to have
been dismissed; and it was correctly dismissed by the trial Court and confirmed
by the first appellate Court.
13. The learned counsel for the petitioner/D1 would develop his arguments
that this is not a suit based on easementary right and there is no question of
this Court in second appeal assuming as though the plaintiff and D1 acquired the
remaining entire extent of property other than the extent sold to third parties.
In support of his contention, he would also cite the decision of this Court in
Arunachalam Pillai and another v. Sorimuthu Pillai reported in 2004(4) CTC 414.
An excerpt from it would run thus:
“9. This reasoning of the first appellate court is not legally
sustainable. There is no evidence to arrive at this conclusion. The conclusion
of the first appellate Court is based on ‘no evidence’. The Commissioner’s
report only shows the physical features; how the property situate. From that,
the Court cannot come to the conclusion that the plaintiff used the pathway (the
second schedule property) to reach the first schedule property. It is nothing
but surmises and imagination by the first appellate Court. To succeed in the
case, the plaintiff must adduce evidence and prove his case that he got a right
of pathway over property referred as BEFGC. It is a well established principle
that the plaintiff must win or fall on his own pleadings and evidence. But, in
this case, there is absolutely no evidence adduced by the plaintiff to prove his
case either of ownership of the second schedule property or easementary right
over the same. Merely on the basis that the plaintiff had no property on the
eastern side of the 1st schedule property on the date when he purchased the
same, the first appellate Court had come to the conclusion that the plaintiff
had used the second schedule property to reach his land. This conclusion is not
legally sustainable. It is for the plaintiff to prove his case which the
plaintiff failed to do.
… …
11. The plaintiff cannot be permitted to raise inconsistent pleas. To
claim easement, the defendant must admit the title of the defendant over the
property. If the plaintiff claims easementary right that must be proved by
sufficient evidence by the plaintiff. When the plaintiff admits that he claimed
ownership and not easement and if he fails to prove ownership, he cannot be
allowed to prove easementary right. Ownership and easement are mutually
exclusive. Both cannot be pleaded. Therefore, when the plaintiff claimed
ownership, he gives up the plea of easementary right. Ultimately, when the
plaintiff failed to prove ownership, he cannot revive the plea of easement. In
such circumstances, the plaintiff is not entitled for any relief. The trial
Court approached the issue rightly and dismissed the suit. The reversal of the
suit by the appellate Court is erroneous”.
14. The learned counsel for the petitioner/D1 by placing relieance on the
cited Judgment would advance his arguments that this is a case for declaration
of title and furthermore once the plaintiff pleads merger of easementary rights,
his claim for suit based on declaration of title should have been dismissed; but
this Court in second appeal decreed the suit.
15. Whereas the learned counsel for the first respondent/plaintiff would
submit that Ex.A4, the partition deed, which emerged between the original owners
of the suit properties viz., Rajamani Nadar and Manickavasakam, would show that
after selling an extent of 46 r cents in the total extent of 2 acres 12 cents in
R.S.No.30/1, the remaining extent of 1 acre 65 r cent, which includes the
disputed pathway also, was partitioned between the two and out of that each of
the brothers had taken 82 cents and in that sale deed, it is also found
mentioned about the disputed pathway as under:
“…njw;Fs;s g[q;ir br.82-3/4f;F tU&k; xd;Wf;F rh;f;fhh; cs;gl jPh;it U.16
tPjk; 25 klA;F jPh;it U.400/- bghJeilghijapd; tpguk; i& rh;Bt ek;ghpy; @
tpy;ypg[j;Jhh; Buhl;oypUe;J V, gp jgrpy; epyA;fSf;F tUk; fpHBkyo 10 bjd;tly;
Bky;jiyao 105 fPH;g[uk; jiyao 60 cs;sjpy; V,gp jgrp[y;jhh;fs; g[HA;fpf;bfhs;Sk;
bghJeilghij ghj;jpaKk; njd; ehd;Fkhy; tpguk; tpy;ypg[j;Jhh; Buhl;ow;Fk; bjw;F
Btyha[jk;brl;oahh; filf;F Bkw;F rPjhbyl;Rkp buA;f ehr;rpahh; nth;fs; tPLfSf;Fk;
fpHf;F V jgrpy; 1 egh;fshf uh$hkzp ehlhh; ghf brhj;Jf;F tlf;F njw;Fs;gl;lJ….
(emphasis supplied)
16. Placing reliance on the aforesaid extract, he would submit that under
Ex.A4, they intended that the disputed pathway as their private pathway only to
be enjoyed by them for their ingress and egress and not for any others to use
it; subsequently, the said Rajamani Nadar sold as per Ex.A5, his share including
the suit pathway to D2, but with the condition that the said disputed pathway
and the pathway which proceeded towards the extreme south should be left as such
without any construction being raised; and that subsequently all the lands
situated on the southern side so to say excluding the properties sold to
Seethalakshmi Ammal (D1), one Velayutham and Ranganatchiar, got vested with the
plaintiff and D2 and accordingly he submitted that there is no error apparent or
mistake in the Judgment dated 20.12.2006.
17. The learned counsel for the review petitioner/D1 would submit that the
boundary should be considered as found detailed in Ex.A4. The boundary for the
extent of 1 acre 82 cents would contemplate the disputed pathway as one of the
boundaries, to describe the extent of 165 r cents; once the disputed pathway is
shown as a boundary to the extent of 165 r cents, which was partitioned between
the two, then it could not be presumed that disputed pathway also was included
in the extent of 165 r cents and the plaintiff has not placed any evidence in
that regard.
18. The learned counsel for D1 cited the decision of the Hon’ble Apex
Court in M.M.Thomas v. State of Kerala and Another reported in (2000) 1 Supreme
Court Cases 666. An extract from it would run thus:
“11. It must be pointed out that any claim for exemption under Section
3(2) of the Act must necessarily be in respect of an area which was brought
under cultivation by him before the appointed day i.e. 10-5-1971. In other
words, if not cultivation was made by him on the land concerned before the said
crucial date its owner cannot base a claim for exemption under sub-section(2).
The appellant did not even mention in his claim petition that he had cultivated
the said land before the said date nor did he mention in his evidence that the
land was brought under cultivation even on a single day prior to 10-5-1971.
Hence, there is no question of considering the exemption under sub-section(2).
But the High Court went out of his claim and found that he is entitled to
exemption under Section 3(2). Therefore the earlier judgment of the High Court
dated 13-1-1982 was vitiated by error apparent on the face of the record.
14. The High Court as a court of record, as envisaged in Article 215 of
the Constitution, must have inherent powers to correct the records. A court of
record envelops all such powers whose acts and proceedings are to be enrolled in
a perpetual memorial and testimony. A court of record is undoubtedly a superior
court which is itself competent to determine the scope of its jurisdiction. The
High Court, as a court of record, has a duty to itself to keep all its records
correctly and in accordance with law. Hence, if any apparent error is noticed
by the High Court in respect of any orders passed by it the High Court has not
only power, but a duty to correct it. The High Court’s power in that regard is
plenary. In Naresh Shridhar Mirajkar v. State of Maharashtra a nine-Judge Bench
of this Court has recognised the aforesaid superior status of the High Court as
a court of plenary jurisdiction being a court of record”.
(emphasis supplied)
19. The perusal of the aforesaid decision and more specifically the
underlined portion, would indicate that it was relating to a case wherein the
High Court without even considering the plea of the petitioner properly, decided
the matter by granting exemption as per Section 3(2) of Kerala Private Forests
(Vesting and Assignment) Act, 1971. Ex facie and prima facie it is clear that
the said procedent has been cited out of context. However, the Hon’ble Apex
Court’s view on High Court’s power of review is concerned, this Court keeps in
mind in deciding this matter.
20. Now, it has to be seen as to whether there is any error apparent or
wrong understanding of the evidence before this Court, while exercising its
power under Section 100 C.P.C.
21. I, in my earlier Judgment dated 20.12.2006, under paragraph No.8
onwards started discussing the real controversy between the parties and
accordingly disposed of the matter on the specific finding that the findings of
both the Courts below were perverse and thereupon arrived at the conclusion.
The issues framed by the trial Court and the points for consideration framed by
the first appellate Court were all considered by this Court and then held that
even though evidence was available before both the Courts below, they failed to
decide in favour of the plaintiff. Exs.A2 to A7 are the crucial documents in
this case and I have discussed those documents in paragraph Nos.8, 9 and 11 of
my Judgment and I have also extracted the certain portions from the Judgment as
under:
“8. Right at the outset, I may proceed to refer to Exs.A.2, A.3 and A.4.
Ex.A.2 is the certified copy of the sale deed dated 10.9.1970 executed by the
said Rajamani Nadar and Manickavasaga Nadar in favour of Seethalakshmi – the
first defendant selling a portion at the north-western corner of the entire
extent of their property.
9. While describing the property sold under the sale deed Ex.A.2, the
southern boundary was shown as vendors’ own property under their control for
pathway purpose and it is significant and pertinent, important and indispensable
to note that in Ex.A.2, the southern boundary is not shown as common pathway.
But it is only stated as vendors’ own land. In such a case, it is not known as
to how the first defendant could lay claim over it as pathway meant for her use.
However, on the first defendant’s side, it is contended that Ex.A.3 and A.4
would refer to the area to the east of the defendants’ property as a common
pathway, for which learned counsel for the plaintiff would highlight that
nowhere in Ex.A.3 or A.4 it is found stated that the pathway referred to
therein is meant for the first defendant.
11. It is therefore, just and necessary to scrutinise as to whether both
the Courts below properly considered the evidence on record. They considered
the relevant documents as though such documents refer to common pathway
available for all the land owners in that area including the first defendant.
It is therefore, just and necessary to scrutinise the documents and see whether
those documents were properly understood by the Courts below. Ex.A.3, the
certified copy of the sale deed dated 10th March, 1972 executed by Rajamani
Nadar and Manickavasaga Nadar in favour of Anthoni Nadar Swami, would describe
the property thus:
“vA;fs; iftrKs;s epyj;jpd; kj;jpapy; bjd;tly; ghijf;fhf xJf;fg;gl;Ls;s 12
mo mfyKs;s epyj;jpw;Fk; bjw;F njw;Fs; fpHBkylo 127 bjd;tlyo 86 cs;sjw;F Rkhh; 25
– K.S.V.Rajamani Nadar, K.S.V.Manickavasaga Nadar – bfhz;Ls;s kidao epyKk; i&\
epyj;jpw;F tlg[wKs;s 12 (5 mo) mfyj;jpy; _tpy;ypg[j;J}h; BuhL tiuf;Fk; ehA;fs;
xJf;fpa[s;s bjd;tly; Buhl;L epyj;jpy; bghJthf ele;J bfhs;Sk; tHpeil tz;og;ghijg;
ghj;jpaKk;….”
22. Adverting to those aspects in my previous Judgment, I highlighted that
D1 was not given any right over the suit pathway. Paragraphs 13 and 14 of my
previous Judgment are self explanatory and they are extracted hereunder for
ready reference:
“13. Ex.A.4 is the certified copy of the partition deed dated 10th January
1977 effected between Rajamani Nadar and Manickavasaga Nadar and the relevant
portion is extracted hereunder for ready reference:
“Vw;fdBt tl gf;fj;jpYk; bjd; filrpapYk; ehk; bghJtha; fpiuak; bra;J
bfhLj;Jtpl;l br 46 1/ 2 ePf;fp ghf;fpa[s;s V 1 br 65 1/ 2 y; tlghjp br 82 3/ 4
njw;F khy; _tpy;ypg[j;J}h; Buhl;Lf;Fk; i&\ Buhl;oypUe;J ne;j epyj;Jf;F tUk;
bghJg;ghijahd fpHBkylo 10 bjd;tly; nky;jiyao 105 fPH;jiyao 60 cs;sjw;Fk;
rPjhyf&;;kp buA;fdhr;rpahh; nth;fs; tPLfSf;Fk; – Btyha[jk; brl;oahh; filf;Fk;
bjw;F …..”
14. The above description would show that the said suit pathway referred
to therein is available for ingress and egress of those owning lands to the
south of that pathway. It is not found stated that such pathway should be made
available for the first defendant also. But, on the other hand, it is stated
that the said pathway is available for those having lands to the south of the
pathway. English translation of such description of pathway in Tamil in Ex.A.4
would be to the effect that the said suit pathway is proceeding from Sivakasi –
Srivilliputtur Road towards south to the land situated to the south of the suit
pathway. In Ex.A.4, the same original owners/vendors as found in Ex.A.2, i.e.,
Rajamani Nadar and Manickavasaga Nadar declared it so.
15. If those original owners wanted to dedicate the suit pathway as common
pathway, certainly they would have worded it otherwise. The extent of the
common private pathway is also found described as measuring 10 feet east to west
and 105 feet north to south on the western side and 60 feet south to north on
the eastern side. Ex.A.1 Map would highlight that the said description in
Ex.A.4 tallies on ground. Ex.A.6 is the certified copy of the sale deed dated
8th May 1978 which was executed by the said Manickavasaga Nadar in favour of
Sundaravelu, the plaintiff and in which, the suit pathway is described as under:
“epyj;jpy; fPH;gf;fk; 10 mo mfy bghJg;ghijf;fhf _tpy;ypg[j;Jhh; BuhoypUe;J
jA;fs; epyk; Koa[k; tiu tpl;oUf;Fk; ghijia jw;BghJ ne;jg;gj;jpuk; Kyk; fpiuak;
thA;Fk; mj;Jtiu ghijf;ffhf 10 mo mfy epyj;ij ePf;fp ghf;fp epyj;jpy; fl;olk;
fl;of;bfhs;s Btz;oaJ….”
(emphasis supplied)
23. I could see no error apparent in understanding the real purport of
those documents. I have adverted to the fact that in Ex.A2, which is the
certified copy of sale deed dated 10.09.1970, executed by the original owners in
favour of D1, Seethalakshmi Ammal, the disputed pathway was shown only as their
land and not as a pathway and subsequently in Ex.A4, the said two owners viz.,
Rajamani Nadar and Manickavasaka Nadar got partitioned the remaining extent of
the property to an extent of 1 acre and 65 r cents out of the total extent of 2
acre 12 cents in S.No.30/1. I heard both at length regarding this extent is
concerned as to whether the extent of 1 acre 65 r cents as found mentioned in
Ex.A4 includes the disputed pathway or excludes it?
24. The learned counsel for the first respondent/plaintiff would
convincingly submit that in Ex.A4, it is found mentioned that 46 r cents land
was sold, but the disputed pathway was not an item, which was sold. In such a
case, Ex.A4 should be interpreted by giving its grammatical meaning that out of
2 acre and 12 cents, after deducting 46 r cents, which was sold, there remained
1 acre and 65 r cents. It is an admitted fact that the disputed pathway was
forming part of the entire extent of 2 acre and 12 cents. A fortiori, the
extent of 1 acre and 65 r cents includes the disputed pathway. It is the
logical and grammatical interpretation. Then, the question arises as to why
then that disputed pathway should have been shown as one of the boundaries in
some documents.
25. In all cases blindly it cannot be taken that boundary will prevail
over extent. It all depends upon the facts and circumstances of each and every
case. At this contest my mind is redolent with the following decisions:
(i) M.Rajagopal Mudaliar v. K.R.Venkataraman by power agent K.G.Ramanathan
reported in (2002)1 M.L.J.529. An excerpt from it would run thus:
“It has been held in Church of S.I.T.A. v. Raja Ambrose, (1978)2 M.L.J.
620, 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 concluded not only the exact
positioning of the property conveyed, but also its true extent”.
These decisions are applicable to the case on hand.
The lower appellate Court misdirected itself and although number of
decisions were cited, they were not properly understood. When the respondent
had purchased only 32 feet x 75 feet and there is no ambiguity in the
measurements, it is not necessary to go into the question of boundaries or the
intention of the parties. D.W.2 is the vendor of the appellant as well as the
respondent and his evidence only supported the case of the appellant. There is
no reason to discard the testimony of D.W.2. The boundary description in the
other document was relied upon to show that Sankara Naidu could not have
retained any property after conveying under Ex.A1. Simply because there was
some omission in the reference of boundaries, it cannot be concluded that the
vendor namely, D.W.2 had no right to convey the property. As adverted to, when
the theory of adverse possession has been rejected by the lower appellate Court
the case of the respondent mainly depends upon the sale deed, wherein a specific
extent above has been conveyed and under the circumstance, the respondent is not
entitled to claim more than that taking shelter under the boundaries. The
finding of the lower appellate Court is based on mere surmise and conjecture and
there was erroneous application of law and, as such, interference is called
for”.
(ii) Ramaiya Asari v. Ramakrishna Naicker alias Kollimalai Naicker and
another reported in (2000)3 M.L.J.327. An excerpt from it would run thus:
“The question is whether the vendor of the appellant Ramaiya Asari
retained any portion in the said Cadastre. According to the learned counsel for
the appellant, this “Kammi-Jasthi” would take 7 1/4 kuzhies also. I can
understand if it is “Kammi-Jasthi” by half kuzhi or one kuzhi not such a large
extent as 7 1/4 kuzhies. It should also be noticed that Ramaiya Asari paid his
vendor at the rate of Rs.70 per kuzhi only, for 40 kuzhies. It should be
further noticed that Ramaiya Asari in the earlier proceedings had said that
there was encroachment in the 40 kuzhies purchased by him. This would be
evident from the judgment in A.S.No.11 of 1972 marked as Ex.B2. In the said
judgment it is mentioned that the claim was for 40 kuzhies and the Court held
that Ramaiya Asari had proved his title with regard to 40 kuzhies purchased by
him. Only when there is dispute with regard to the extent, the boundaries can
be taken into consideration. When Ramaiya Asari had purchased only 40 kuzhies
on the basis of the sale deed in his favour, he cannot ask for anything more.
The mere fact that the northern boundary had not been correctly described, would
not show that he had purchased the additional 7 1/4 kuzhies also. One other
aspect to be mentioned is that Ramaiya Asari has spoken to the fact that before
he purchased the property he had the land measured by a Surveyor, that the
Surveyor had given a report Ex.A3 that Ramakrishna Naicker, father of
Ambigapathy, had encroached part of Cadastre No.742/2 on the northern side and
that he was in possession of the same, but the vendor of Ramaiya Asair had not
taken any steps to evict Ramakrishna Naicker from the encroachment. Thus,
Ramaiya Asari was aware that the extent that was available for sale and actually
sold and given possession of, was only 40 kuzhies. The lower appellate court
has adverted to this aspect and held that Ramaiya Asari cannot claim anything
more than 40 kuzhies. The decisions relied on by the learned counsel, in my
view, have no application to the facts of the present case.
In The Palestine Kupatam Bank Co-operative Society Ltd. v. Government of
Palestine, A.I.R. 1948 P.C.207:62 L.W.21, it has been held that where in the
case of a grant of land there is a conflict between the description by
boundaries and the area mentioned in the grant, the principle of preferring the
description by fixed boundaries to the conflicting description by area should be
applied in the construction of the grant, and the statement as to area should be
rejected as false demonstration”.
(iii) T.B.S.seela Bodi Baicker v. T.V.K.Kama Raja Pandiya Naicker reported
in 1943-MLJ-622. An excerpt from it would run thus:
“(i) Description by boundaries leaving gaps here and there is by no means
uncommon and the Court cannot reject such a description as of no significance
and regard the instrument as involving no ambiguity latent or patent.
(ii) Where the intention of the parties in regard to the schedule of
properties in a deed is to describe more particularly what was referred to by
mere name in the body of the instrument that description by boundaries cannot be
regarded as a general description and the name as a specific description so as
to give effect to both by treating the specific as restricting the general.
(ii) Falsa demonstratio non nocet is a rule which enables a Court to
disregard a part of a description, as false and inadvertently inserted, only
after it has reached the conclusion that the property conveyed was that
indicated by the other parts of the description. All rules of construction
properly applicable to the case should be called in aid to ascertain the true
meaning of the deed and it is only when they are exhausted and it is still not
possible to reconcile the inconsistent parts of the description, that the maxim
can be invoked as a last resort to justify the rejection of some part of it.
(iv) Even in the case of a modern instrument in which there is a latent
ambiguity the rule of contemporanea expositio is applicable and evidence may be
given of user under it to show the sense in which the parties to it used the
language they have employed. Though the rule as a guide to the interpretation
of documents is often accompanied with danger and great care must be taken in
its application, it is no reason for not applying it if the circumstances of a
case call for or justify its application.
(v) The acts and conduct of the grantee as well as those of the grantor
are relevant for the purpose of the application of the rule of contemporanea
expositio. It cannot be said that the rule is applicable only to the acts of
the grantor nor is there anything in the reason of the rule to so restrict its
application.
(vi) There is no priority in the application of the various rules of
interpretation including the rule of contemporanea expositio, for they are only
clues to the true meaning of ambiguous instruments which must be applied as the
circumstances of a particular case may appropriately require or suggest.
(vii) There is no hard and fast rule that in a conflict between a
description contained in a deed and that contained in an inventory, map or
schedule annexed to the deed, or between a description by name and description
by boundaries, the former should be held to prevail. Each case depends on its
peculiar facts.
(viii) In applying the rule contemporanea expositio attention must be
directed particularly to the user of the property during the period immediately
following the execution of the deed as being the most material, especially when
conflicts are found to have arisen between the parties subsequently.
(ix) There is no reason why the finding of the Courts below, as to
possession of the disputed property immediately following the execution of the
deed though arrived at on the issue of adverse possession should not be taken
into consideration, if it is relevant and material in interpreting the deed
according to the true intention of the parties”.
26. Here, the facts clearly demonstrate that excluding 46 r cents sold by
both the brothers, the remaining 1 acre 65 r cents includes that disputed
pathway and they intended under Ex.A4 itself, that it should be their private
common pathway and accordingly, while they effected partition, they specified
so. As per Ex.A5 one of the brothers viz., Rajamani Nadar sold in favour of the
plaintiff his entire share of 82 cents, which he got under Ex.A4. In
paragraph No.15 of my earlier Judgment, the relevant portion is found extracted
thus:
“epyj;jpy; fPH;gf;fk; 10 mo mfy bghJg;ghijf;fhf _tpy;ypg[j;Jhh; BuhoypUe;J
jA;fs; epyk; Koa[k; tiu tpl;oUf;Fk; ghijia jw;BghJ ne;jg;gj;jpuk; Kyk; fpiuak;
thA;Fk; mj;Jtiu ghijf;ffhf 10 mo mfy epyj;ij ePf;fp ghf;fp epyj;jpy; fl;olk;
fl;of;bfhs;s Btz;oaJ….”
27. The learned counsel for the review petitioner/D1 would submit that
there is a clause in the schedule in Ex.A5 itself to the effect that the said
pathway is meant as one belonging to Anaiyur Panchayat. I would like to
highlight that the said clause should not be understood in that manner. It is
only a formal clause showing that the entire property is in Anaiyur Panchayat
and nowhere it is stated that the pathway belongs to Anaiyur Panchayat. The
further additional clauses would further make the point clear that various
clauses were added as formal clauses for registration purpose. I would like to
extract hereunder that portion of Ex.A5, which clearly highlights as to how such
an argument on D1’s side is untenable.
“… ghijf;fhf tpl;L ghf;fp epyj;jpy; fl;olk; fl;of; bfhs;sBtz;oaJ Mida{h;
gq;rhaj;J Bghh;Lf;Fs;gl;lJ rptfhrp gq;rhaj;J a{dpaidr; Brh;e;jJ tptrhaj;Jf;F
yhaf;fw;wJ fl;olk; fl;of;bfhs;s tpw;fg;gLfpwJ. brz;L vz;gj;jp nuz;Bl Kf;fhy;
cs;s epyk; fpiuak;.
njd; jw;fhy khh;f;fl; kjpg;g[ U.41375.
Fwpg;g[: i& epykhdJ rkjskw;W bghpa fplA;FfSld; nUg;gjhy; khh;f;bfl;
kjpg;g[f;F kpft[k; Fiwe;j tpiyapy; tpw;fg;gLfpwJ. fy;ghiwfSk; nUf;fpwJ. mitfis
cilj;J rkjskhf;f Btz;Lk;”.
28. A mere perusal of it would highlight that the clause about Anaiyur
Panchayat is meant for indicating the entire 82 cent is in Anaiyur Panchayat.
There is nothing to demonstrate that the suit pathway was agreed to be handed
over to the said Panchayat and it was not handed over also to the Panchayat.
29. My above interpretation of the clause in Ex.A5 relating to Anaiyur
Panchayat, is for the purpose of highlighting that the subject matter of the
sale is situated in the Panchayat concerned . In Ex.A2, which is the sale deed
executed in favour of D1, it is found specified as follows:
“jgrpy; Bkw;F nuhk;ehl; hPo rptfhrp rg;o Mida{h; fpuhk;k mad; g[q;ir rh;Bt
fh.r.t.uh$kzp ehlhh;, Bf.v!;.tp.khzpf;fthrf ehlhh; 7 30k; eph; 1tJ yl;lh; Vf;fh;
2 brz;L 12 cs;s epyj;jpy; tlgf;fk; rptfhrp – – tpy;ypg[j;Jhh; bkapd;Buhl;Lf;F
bjw;F vA;fs; iftrKs;s 11 mo mfyKk; cs;s epyj;jpw;Fk; Bkw;F vA;fs; iftrKs;s
epyj;jpw;F tlf;F, gq;rhaj;J a{dpad; gs;spf;Tl epyj;jpw;F fpHf;F njw;Fs; fpHBky;
tljiy bf$k; 22 bjd;jiy bf$k; 19 bjd;tly; Bky;jiy bf$k; 20 fPH;jiy bf$k;
fh.r.t.uh$kzp ehlhh; Bf.v!;.tp.khzpf;fthrf ehlhh; 21 cs;sjw;F Rkhh; 10 11/24
brz;Ls;s kidao epyk; fhpry; epyk; tptrhaj;Jf;F yhaf;fw;wJ tPL fl;l
tpw;fg;gLfpwJ. a{dpad; gq;rhaj;Jg; Bghh;Lf;Fl;gl;lJ. rptfhrp gq;rhaj;J
a{dpaidr; Brh;e;jJ.”
30. The underlined portion would clearly highlight that such a reference
has been made not to show that the entire property in Ex.A2 belongs to Panchayat
Union, but it was for the purpose of showing that the subject matter of sale is
situated in Panchayat Board area. If the interpretation given by D1 is accorded
to Ex.A2, it would amount to stating that the said 10 r cents covered by Ex.A2,
belongs to Panchayat itself. Hence, D1’s interpretation of Ex.A5 is totally
untenable. Furthermore, in other Exs.A3 to A8, similar clauses are found. As
such it really demonstrates that D1 went to the extent of interpreting documents
in utterly wrong manner.
31. The law is very clear that if any pathway has to be handed over to the
Panchayat, there are procedures for it. But the fact remains that the recitals
would clearly show that as on the date of emergence of Ex.A5, one other third
party was having land in S.No.30/1 to the south of the property covered under
Ex.A5 and the pathway starting from Srivilliputhur Main Road, that is branching
towards south and turning towards east and then proceeding towards extreme south
and the extent covered by that private pathway also was covered under the sale
deed and this fact cannot be lost sight of. However, as already extracted
supra, there is a clause in Ex.A5 that there shall be no construction on that
pathway and that should be kept vacant for being used as a pathway.
32. My previous Judgment would clearly indicate as to how subsequently the
plaintiff and D2 acquired the entire extent of land except the land purchased by
D2 and Velayutha Chettiar and Ranga Natchiar. As such, the necessity to adhere
to the clause that there should not be any construction put up in that pathway
became otios and redundant. In such a case, there was clear merger of that
pathway with the purchaser. Over and above that D2, who acquired property as
per Ex.A2 and who is having the right of ingress to her area has not explained
as to how she is entitled to that suit pathway.
33. The plaintiff in this case by virtue of Ex.A2 to A7 has clearly proved
that the plaintiff and D2 purchased the entire extent of 2 acres 12 cents except
the extents sold in favour of Seethalakshmi Ammal (D1 herein), who purchased
under Ex.A2, and Ranga Natchiar, who purchased land to the south of the land of
D1, and Velayutham, who purchased land to the east of the disputed pathway.
D1’s contention that in Ex.A5, there is reference to pathway including the
disputed pathway, would not enure to her benefit for the reason that she was not
a party to it and for that matter except Ex.A2, the sale deed in her favour to
an extent of 10 r cents abetting Srivilliputhur Main Road on the north western
corner of the entire extent of 2 acres and 12 cents, she is having no right over
another extent to be used as a pathway for her and the admitted fact remains
that she has ingress and egress to her land from the said Srivilliputtur main
road. The core question arises as to whether D1, who is not a party in Exs.A3
to A7, could rely upon them so as to derive benefit in her favour. The answer
is at once an emphatic no. In Exs.A3 to A7, the pathway contemplated is only
for the benefit of those, who derived right under those documents only, and not
to D1, who is not a party to it. This vital and crucial paramount point has not
been borne in mind by D1.
34. The prayer in the plaint is for declaring the exclusive right of the
plaintiff and D2 over the suit pathway by virtue of they having acquired right
over it and and in such a case, the question of applying the decision in
Arunachalam Pillai and another v. Sorimuthu Pillai reported in 2004(4) CTC 414
does not arise. Here there is no contradicting plea at all. Hence, the
plaintiff is not claiming in one breadth ownership and in another breadth
easementary right over another man’s land or in D1’s land. In the cited
decision the factual position is totally different and a mere perusal of it as
extracted supra would demonstrate the same.
35. In my previous Judgment dated 20.12.2006, I have adverted to the
various precedents including the one at paragraph No.27 of it which contemplates
the decision of this Court in Lalithamaheswari v. Poomalai Ammal and two others
reported in 1999-2-L.W.596 to the effect that common passage cannot be presumed
unless there is a document indicates the same. Section 19 of the Indian
Easement Act, 1882 is reproduced here under for ready reference:
“19.Transfer of dominant heritage passes easement.- Where the dominant
heritage is transferred or devolves, by act of parties or by operation of law,
the transfer of devolution shall, unless a contrary intention appears, be deemed
to pass the easement, to the person in whose favour the transfer or devolution
takes place.
Illustration
A has certain land to which a right of way is annexed. A lets the land to
B for twenty years. The right of way vests in B and his legal representative so
long as the lease continues”.
In fact, in accordance with the principles embodied in the aforesaid decision, I
have decided the case earlier by highlighting that by the plaintiff and D2
having purchased under different deeds as set out therein, became the owner of
the entire extent of 2 acres and 12 cents, except those aforesaid three pieces
of land sold in favour of three persons referred to supra.
36. In my previous Judgment in paragraph No.18, I highlighted by giving
the excerpt from Ex.A5 that the suit pathway has been described as common
pathway for persons owning lands on the south and not to D1, who is owning land
on the north western corner of the entire extent of 2 acres and 12 cents.
37. As such D1 is not concerned with the said common pathway, which was
referred to in those subsequent documents, which emerged relating to the portion
situated on the southern portion of S.No.30/1, wherein D1 was not at all a party
and the disputed pathway was referred as common pathway only relating to those
persons, who derived benefit under those deeds.
38. In Ex.A4, the partition deed between the brothers viz., Rajamani Nadar
and Manickavasaka Nadar, it is clearly found spelt that out of 2 acres 12 cents
of land, which belonged to them after disposing of an extent of 46 r cents, the
remaining 1 acre 65 r cents was partitioned between them. Incontrovertibly D1
as per Ex.A2 purchased an extent of 10 r cents and the said Velayutham purchased
5 r cents, Renga Natchiar purchased another 5 r cents and as per Ex.A3 R.C.S.
Church purchased an extent of 25 cents. As such, the total extent comes to 46 r
cents, which both the brothers sold and it is therefore obvious that the
remaining extent after deducting 46 r cents from the total extent of 2 acre 12
cents, comes to 165 r cents, which obviously and indubitably includes the
disputed pathway also. Subsequently, as per Ex.A8, D2 purchased from R.C.S.
Church that 25 cents also, as already highlighted above, the plaintiff and D2
purchased the entire extent of 165 r cents including the suit pathway. In other
words, the plaintiff and D2 virtually stepped into the shoes of the original
owners viz., Rajamani Nadar and Manickavasaka Nadar relating to 165 r cents and
they were enjoying their own lands and the suit pathway is the common pathway of
both of them and the suit has been correctly filed for declaring their common
right of pathway over the suit pathway.
39. The first appellate Court framed the point No.1 for consideration as
to whether the suit pathway is the exclusive pathway for the plaintiff and D2
and such formulation of point for consideration was not correctly dealt with and
decided with reference to the documentary evidence available on record and those
facts I have referred to in my earlier Judgment dated 20.12.2006 by discussing
those documents and hence, in the review petition, their contention as though
this Court has not considered earlier /the first appellate Court’s version is
neither here nor there.
40. In my previous Judgment, I have clearly pointed out that both the
Courts below were perverse in their approach in dealing with the matter.
41. My mind is redolent with the provisions of Section 114 of C.P.C. and
also order XLVII of C.P.C. and the Hon’ble Apex Court’s verdict cited supra,
which contemplate the review powers of this Court. My above discussion would
show that absolutely there are no mistakes in the approach of this Court in
allowing the second appeal. Considering the pros and cons of the matter by
applying the correct provisions of law and noting the perversity in the
Judgments of both the Courts below, they were set aside and the original suit
was decreed as discussed supra. In view of my discussion supra, it is apparent
that there is no scope for review. In fact, D1 wanted to use this review
petition as a tool to canvass before this Court to replace my earlier reasoned
Judgment with some other antithetical view. All these aspects were in detail
adverted to in my earlier Judgment and hence, I am of the considered opinion
that there is no error apparent in my earlier Judgment and accordingly, I am of
the view that this review petition has to be dismissed. Hence, there is no merit
in this review petition and accordingly, the same is dismissed. No costs.
smn
To
1.The Subordinate Judge,
Srivilliputtur,
Kamaraj District.
2.The Principal District Munsif,
Sattur.