JUDGMENT
P.C. Pathak, J.
1. This second appeal has been filed by the plaintiff against the dismissal of his suit for permanent and mandatory injunction in respect of a strip of plot lying in between the houses of the parties. The appeal was admitted on the following substantial question of law : –
“Whether the First Appellate Court erred in law in finding that the open land lying in between the houses of the parties did not belong to the plaintiff and dismissing his claim for grant of mandatory injunction and permanent injunction on that basis ?”
2. The plaintiff’s case is that he had purchased the house together with appurtenant land as per boundary detailed in the registered-deed dated 22-6-1973 (Ex. P.1), from Hazi Abdul Sattar. The boundary is also shown in the attached map. The suit is in respect of the plot described as ‘open yard’ on the west side of the said house, and to the east of the house of the defendant Dr. Solat.
3. Dr. Solat purchased his house on 18-4-1973 through sale-deed dated 18-4-1973 (Ex. P.2) from one Durga Prasad. That house was Kachcha and had no openings like door, windows or sky lights towards the plot in dispute. The defendant dismantled the house and constructed a new one. In the wall running adjacent to the plot in dispute he fitted doors, windows and sky lights. He also constructed a verandah by encroaching 3′ width of the Plot in dispute. He fitted delivery pipe on the said wall. The plaintiff submitted that all these acts of the defendant were without any right or authority and if he is allowed to complete the construction, he will suffer irreparable injury and the privacy of his house will be violated. The defendant was restrained by temporary injunction on 14-9-1974 to carry on further construction work. However after dismissal of the suit in plaintiffs default on 3-7-1975, the defendant completed the construction. By order dated 18-11-1976, in MJC No. 22/75, the suit was restored on 22-11-1976. The plaintiff amended the plaint suitably and prayed for relief of mandatory injunction for closure of the doors, windows etc. and removal of the encroachment. The defendant filed written statement opposing the suit. He submitted that the plaintiff got incorrect measurements and boundary mentioned in the sale-deed while purchasing it from the previous owner. According to him, the plot in dispute is Government land and that he reconstructed his house after obtaining necessary sanction.
4. The learned trial Court held that the measurements and the boundary of the plaintiff’s house, in the sale-deed (Ex. P.1) are correct, there was no door, windows or light on the eastern wall of the house when purchased by the defendant, the plaintiff is the owner of the plot in dispute and that the defendant unauthorisedly and illegally opened a door, a window and eight sky lights and fitted four pipes for delivery of water on the plaintiff’s plot. On these findings the suit was decreed. On an appeal by the defendant, the First Appellate Court allowed it dismissing the plaintiff’s suit in toto. Hence second appeal by the plaintiff.
5. The question for decision is whether the plaintiff failed to prove his title to the suit plot. In order to prove his title, the plaintiff relied on sale-deed (Ex.P.1). The map forming part of the sale-deed shows that the house together with ‘open yard’ was purchased by him. The property demised is surrounded by redlines and the suit plot is within that boundary. The western boundary of the said plot is made by the eastern wall of the defendant’s house. The First Appeal Court found some discrepancies with the dimension of the plot in the said map and its description in para 3 of the sale-deed (Ex. P.1). On a proper analysis and comparison of the dimensions given in the body of the sale-deed and the map, it will be seen that the assumption of the Court below is an outcome of misreading and misconstruction. The plaintiffs house is surrounded by open space in all the directions. So far as this suit is concerned, the ‘open yard’ namely the suit plot situated to the west of the house alone is relevant. The dimensions mentioned in the later half of para 3 of the sale-deed are of the walls together with the appurtenant plot. The dimension of the plot in dispute is not separately mentioned in the body of the sale-deed. That is to be found in map alone. In the sale-deed the dimension of the northern side is 11.6′ and on the southern side the dimension is shown 18.6′. It appears to be a mistake in writing the south as north and north as south. 11.6′ appears to be the length of the wall excluding ‘ABCHAK’ in the southern side of the house while on the northern side the length of wall is shown as 12′ and the width of the plot in dispute is shown as 6.9′. 18.6′ is the length of the western wall of the plaintiff’s house. In addition to this, the dimension of the open yard beyond the western wall is shown 19.3′ x 6.9′. Merely because of discrepancy in writing the direction and measurement in para 3 of the sale-deed with those in the map, the plaintiff cannot be non-suited.
6. In K. S. Nanji and Co. v. Jatashankar Dossa and Ors., AIR 1974 SC 1474, it was held that where the map is drawn to scale and the boundary is clearly demarcated, the Courts are right in accepting the boundaries drawn in the plan without embarking upon an attempt to correct them with reference to the revenue records. The map attached with the sale-deed (Ex. P.1) was drawn according to the scale viz. 1″ is equal to 8′. In Bhayalal and Ors. v. Dwarka Pershad and Ors., CPLR Vol. XV, page 163, it was observed as under : –
“It is an ordinary rule of law that when a description is partly correct and partly incorrect and the former part is sufficient to identify the subject-matter, the erroneous part will be rejected. Accordingly it has constantly been held in this country that where land is described in a document by boundaries and the area is wrongly specified, the land within the boundaries will pass whether it be less or more than the quantity specified.”
That decision was followed in T. Rajlu Naidu v. Khan Bahadur M. E. R. Malak, 1939 NLJ 297, wherein it was held that in case of a discrepancy between dismensions and boundaries, the area specified within the boundaries, will pass whether it be less or more than the quantity specified. In that case also, the sale-deeds described the defendant’s building as forming the boundary of the land sold to the plaintiff while according to the dimensions of the lands mentioned in the sale-deed did not cover the entire land claimed by the plaintiff. The Court decreed the plaintiffs claim on the finding that the defendant’s wall formed the boundary of the land sold to the plaintiff and that the defendant could not claim anything more than was actually sold to him.
7. In view of the aforesaid settled principle of construction of deed, the boundary of the property sold to the plaintiff must prevail over the dimension or the direction mentioned in the sale-deed and the map annexed. The defendant did not claim the plot in dispute as part of his house. He pleaded that it did not belong to the plaintiff and is in fact Government land. In other words he pleaded justertii. The defendant as a trespasser cannot successfully resist the suit by showing that the title and right to possession are in a third party. See Somnath Berman v. Dr. S. P. Raju, AIR 1970 SC 846.
8. Yet another ground for dismissal of the plaintiff’s suit is a map (Ex. D.1) proved by Harinarayan (D. W. 2). Counsel for both the parties could not demonstrate what relevancy this map has for adjudicating the plaintiff’s title over the suit plot. Harinarayan, a retired Sub-Engineer, deposed that he prepared it at the instance of the defendant. In cross-examination, he admitted that the defendant had asked him to prepare a map of his house with the open space on its back side. Surprisingly the map shows the house of the plaintiff and the space surrounding it. The map gives all the dimensions of the plaintiff’s house and that of the open space surrounding it but none of the defendant’s house. He does not remember the date when did he prepare it but hastened to state that it was 1978 i.e. during the pendency of the suit. He further admitted that by then, the construction of the defendant’s house was complete. He did not call the plaintiff, when he took the measurements which was done by him with the help of the defendant only. He also did not check the title deeds of the parties. Learned appeal Court described him to be a qualified Engineer but the map (Ex. D.1) shows that he is a retired Sub-Engineer and is only a diploma-holder. From all these, I hold that map (Ex. D.1) has no evidentiary value and was wholly irrelevant to decide the plaintiff’s title. The plaintiff is not bound by this map since it was prepared at the instance of the defendant, behind the plaintiff during pendency of the suit, without any order from the Court. Moreover it was brought into existence, when the defendant had already constructed his house, which according to the plaintiff is an encroachment upon his plot. The learned lower appeal Court misdirected himself by relying on this map to non-Suit the plaintiff.
9. Learned appeal Court committed further error in omitting to consider the statement of the defendant as D. W. 1 as also the fact that he did not file the sale-deed by which he purchased his own house from Durga Prasad. He tried to explain that he filed it in other proceeding which was started against the plaintiff. Even that proceeding terminated more than one year before. Assuming that he had filed the sale-deed in that case, he could summon the record and prove what he purchased from Durga Prasad. He admitted, he had seen the title deed of his vendor Durga Prasad, but he did not remember whether the plot in dispute, the doors, windows etc. existed in the eastern wall of his house. At one stage he even claimed that the suit plot as his own and he does not treat it to be Government land. He did not verify from the Nazul records. Therefore, he could not firmly state whether it was Government land. He also did not recollect if the sale-deed of his house mentions easementary right over the suit plot. Thus the defendant made variance in his defence without proper plea in the written statement.
10. The defendant’s failure to file his own sale-deed permits the Court to draw an inference against his claim over the suit plot. His conflicting claim in the witness-box shows that his defence is totally false, baseless and absurd.
11. The finding of the lower appeal Court that the plaintiff failed to prove his title over the suit plot is based on misconstruction of sale-deed (Ex. P.1), reliance on irrelevant piece of evidence Ex. D. 1 and by omitting to consider the admissions of the defendant so also his failure to file his own sale-deed. Such a finding is not binding in second appeal. For the reasons aforesaid, the finding of the lower appeal Court by which the plaintiff was non-suited, must be set aside. Agreeing with the finding of the trial Court, I hold that the plaintiff proved his title over the suit plot and that the defendant encroached upon it without any right, title or interest over the same. He also illegally opened doors, windows, sky lights, fitted pipes to deliver water on the suit plot. The plaintiff is therefore entitled to relief of mandatory injunction for closer of all openings windows, doors, sky lights and apertures, and removal of all other encroachments made over it.
12. For the foregoing reasons, the appeal is allowed, the judgment and decree passed by the lower appeal Court are set aside and those of the trial Court restored. The plaintiff shall be entitled to costs from the defendant throughout including that of the trial Court. Counsel’s fee Rs. 200/-, if certified. It is made clear that in the event of defendant’s failure to carry out the decree, the plaintiff shall be entitled to get them removed and closed through Court and the costs so incurred shall also be recovered from the defendant.