{"id":168761,"date":"2008-03-10T00:00:00","date_gmt":"2008-03-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/seethalakshmiammal-vs-hariram-sundaravel-on-10-march-2008"},"modified":"2019-04-07T16:52:26","modified_gmt":"2019-04-07T11:22:26","slug":"seethalakshmiammal-vs-hariram-sundaravel-on-10-march-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/seethalakshmiammal-vs-hariram-sundaravel-on-10-march-2008","title":{"rendered":"Seethalakshmiammal vs Hariram Sundaravel on 10 March, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Seethalakshmiammal vs Hariram Sundaravel on 10 March, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 10\/03\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE G.RAJASURIA\n\nRev.P.(MD) No.52 of 2007\nin\nS.A.No.423 of 1996\n\n\nSeethalakshmiammal\t\t.. Petitioner\/R1\/D1\n\nVs\n\n1.Hariram Sundaravel\t\t.. Respondent No.1\/\n\t\t\t\t   Appellant\/Plaintiff\n\n2.Sriram Ashok\t\t\t.. Respondent No.2\/\n\t\t\t\t   R2\/D2\n\nPrayer\n\nReview Petition filed under Order 47, Rules 1 and 2 read with Section\n114 of CPC, to review the Judgement and Decree dated 20.12.2006 passed in\nS.A.No.423 of 1996.\n\n!For Petitioner\t\t... Mr.V.Shanmugam\n\t\t\t    for Mr.N.Dilipkumar\n\n^For Respondent No.1\t... Mr.V.Perumal\n\nFor Respondent No.2\t... Mr.V.Seetharaman\n\n\n:JUDGMENT\n<\/pre>\n
\tThis review petition is focussed as against the Judgement and Decree dated
\n20.12.2006 passed in S.A.No.423 of 1996 by this Court.\n<\/p>\n
\t2. The parties are referred to hereunder according to the litigative
\nstatus before the trial Court.\n<\/p>\n
\t3. A re’sume’ of facts absolutely necessary and germane for the disposal
\nof this review petition would run thus:\n<\/p>\n
\tEarlier this Court vide Judgment dated 20.12.2006 allowed the second
\nappeal setting aside the Judgments and decrees of both the Courts below and
\ndecreed the original suit as prayed for.\n<\/p>\n
\t4. The first defendant filed this review application on the following main
\ngrounds among others:\n<\/p>\n
\tThe Judgment of this Court is vitiated due to error apparent on the face
\nof record and it is therefore liable to be reviewed.  The Hon’ble Apex Court
\nalso held that the High Court has got inherent jurisdiction to review its
\nJudgment passed if there are error apparent on the face of record and also if
\nthe same is necessitated to correct mistakes in deciding the case.  The
\nsubstantial questions of law were framed under Section 100 of C.P.C. and it is
\nextracted here under:\n<\/p>\n
\t“(i) Whether the Courts below have properly framed the relevant and
\nnecessary issues arising in the case and whether the failure constitutes
\nviolation of Order 14 Rule 1 C.P.C. and such violation resulted in mistrial and
\nmiscarriage of justice? and\n<\/p>\n
\t(ii) Whether the suit has been properly valued?”\n<\/p>\n
\t5. This Court has not adverted to the points for determination formulated
\nby the lower appellate Court.  The lower appellate Court under point No.1
\nrelating to the point for determination referred to the declaration relief.
\nThis Court in paragraph No.41 held as under:\n<\/p>\n
\t\t“41. But, no doubt, those issues should have been framed in a better
\nmanner touching upon the interpretation of those documents discussed supra.
\nEven then, while dealing with the issues, both the Courts below misread the
\ndocuments and such an interpretation is found to be perverse and they arrived at
\na wrong  conclusion which warranted the interference of the High Court in the
\nsecond appeal.  Relating to valuation of the suit property, nothing was argued
\nat the time of hearing the second appeal.  Point Nos.(i) and (ii) are answered
\naccordingly”.\n<\/p>\n
\t6. The observation made by this Court in paragraph No.41 was not factually
\ncorrect.  This Court assumed as though, D2 purchased an extent of 2 acres 12
\ncents in S.No.30\/1 of the suit property, which is not factually correct.\n<\/p>\n
\t7. The following are also the additional grounds found set out in the
\nmemorandum of review application:\n<\/p>\n
\t“It is respectfully submitted that it is clearly mentioned in the said
\nsale deed that when buildings are put up, the purchaser must leave space on the
\neast with a width of 10′ from the common way leading from Srivilliputhur Road to
\nthe schedule land and from that end upto the vendors land 10′ wide land for path
\nway and must construct buildings on the remaining land.
\n\tIt is humbly submitted that in all the documents Ex.A-2 to Ex.A-7 it is
\nspecifically mentioned that the suit land is a common path way and there is no
\nrecital to the effect that it is the exclusive private path way of plaintiff and
\nsecond defendant and it is the case of the plaintiff also”.
\nAccordingly, the petitioner\/D1 prayed for reviewing the Judgment passed by this
\nCourt earlier.\n<\/p>\n
\t8. The point for consideration is as to whether there is any error
\napparent in the Judgment dated 20.12.2006 passed by this Court earlier or any
\nother error crept in the Judgment which could have been avoided by this Court?\n<\/p>\n
9.The point:\n<\/p>\n
\tHeard both sides.\n<\/p>\n
\t10. At the first instance itself I would like to advert to paragraph No.18
\nof my Judgment dated 20.12.2006 and it is extracted hereunder for ready
\nreference:\n<\/p>\n
\t“The true purport of Ex.A.5 is required to be considered in depth.  The
\nsecond defendant, who is the brother of the plaintiff, purchased in addition to
\nthe extent of 2 acres 12 cents in S.No.30\/1, the suit pathway which is found
\ndescribed at page No.16 of the original sale deed as follows:
\n… i&\\ rh;Bt ek;ghpy; rptfhrp _tpy;ypg[j;Jhh; BuhoypUe;J ne;j epyj;jpf;F tUk;
\nbjd;tly; bghJg;ghij fpHBkylo 10 (gj;J) thp 1y; ghjmo rhy; ….”\n<\/p>\n
\t13. No doubt, in paragraph No.18, the second sentence was not correctly
\nworded and that is why D1 would interpret as though this Court assumed that D1
\npurchased the entire extent of 2 acres 12 cents.  What actually was intended in
\nthat para was that D1 also had ownership right in Survey No.30\/1 and I have
\nadverted to page No.16 of that deed and extracted it also.  The narration of
\nfacts in the earlier paragraphs of my Judgment dated 20.12.2006 would clearly
\nshow that it was not the understanding of this Court that D2 purchased the
\nentire 2 acres 12 cents in S.No.30\/1 and which is not the case of any one also.
\nIt was only a typographical error.  As such, that sentence in paragraph No.18
\nwas not taken as the dominating factor for deciding the entire lis, vide the
\nJudgment dated 20.12.2006.\n<\/p>\n
\t12. However, the learned counsel for the petitioner\/D1 would detail and
\ndelineate that this is a suit for declaration and for consequential relief of
\ninjunction and in such a case, the plaintiff ought to have proved his case under
\nEx.A5; there is nothing to show that the disputed pathway having a width of 11
\nfeet, which is leading from Srivilliputhur Main Road, was purchased by the
\nplaintiff and in such a case barely on that short point, the suit ought to have
\nbeen dismissed; and it was correctly dismissed by the trial Court and confirmed
\nby the first appellate Court.\n<\/p>\n
\t13. The learned counsel for the petitioner\/D1 would develop his arguments
\nthat this is not a suit based on easementary right and there is no question of
\nthis Court in second appeal assuming as though the plaintiff and D1 acquired the
\nremaining entire extent of property other than the extent sold to third parties.
\nIn support of his contention, he would also cite the decision of this Court in
\nArunachalam Pillai and another v. Sorimuthu Pillai reported in 2004(4) CTC 414.
\nAn excerpt from it would run thus:\n<\/p>\n
\t“9. This reasoning of the first appellate court is not legally
\nsustainable.  There is no evidence to arrive at this conclusion.  The conclusion
\nof the first appellate Court is based on ‘no evidence’.  The Commissioner’s
\nreport only shows the physical features; how the property situate.  From that,
\nthe Court cannot come to the conclusion that the plaintiff used the pathway (the
\nsecond schedule property) to reach the first schedule property.  It is nothing
\nbut surmises and imagination by the first appellate Court.  To succeed in the
\ncase, the plaintiff must adduce evidence and prove his case that he got a right
\nof pathway over property referred as BEFGC.  It is a well established principle
\nthat the plaintiff must win or fall on his own pleadings and evidence.  But, in
\nthis case, there is absolutely no evidence adduced by the plaintiff to prove his
\ncase either of ownership of the second schedule property or easementary right
\nover the same.  Merely on the basis that the plaintiff had no property on the
\neastern side of the 1st schedule property on the date when he purchased the
\nsame, the first appellate Court had come to the conclusion that the plaintiff
\nhad used the second schedule property to reach his land.  This conclusion is not
\nlegally sustainable.  It is for the plaintiff to prove his case which the
\nplaintiff failed to do.\n<\/p>\n
… …\n<\/p>\n
\t11. The plaintiff cannot be permitted to raise inconsistent pleas.  To
\nclaim easement, the defendant must admit the title of the defendant over the
\nproperty.  If the plaintiff claims easementary right that must be proved by
\nsufficient evidence by the plaintiff.  When the plaintiff admits that he claimed
\nownership and not easement and if he fails to prove ownership, he cannot be
\nallowed to prove easementary right.  Ownership and easement are mutually
\nexclusive.  Both cannot be pleaded.  Therefore, when the plaintiff claimed
\nownership, he gives up the plea of easementary right.  Ultimately, when the
\nplaintiff failed to prove ownership, he cannot revive the plea of easement.  In
\nsuch circumstances, the plaintiff is not entitled for any relief.  The trial
\nCourt approached the issue rightly and dismissed the suit.  The reversal of the
\nsuit by the appellate Court is erroneous”.\n<\/p>\n
\t14. The learned counsel for the petitioner\/D1 by placing relieance on the
\ncited Judgment would advance his arguments that this is a case for declaration
\nof title and furthermore once the plaintiff pleads merger of easementary rights,
\nhis claim for suit based on declaration of title should have been dismissed; but
\nthis Court in second appeal decreed the suit.\n<\/p>\n
\t15. Whereas the learned counsel for the first respondent\/plaintiff would
\nsubmit that Ex.A4, the partition deed, which emerged between the original owners
\nof the suit properties viz., Rajamani Nadar and Manickavasakam, would show that
\nafter selling an extent of 46 r cents in the total extent of 2 acres 12 cents in
\nR.S.No.30\/1, the remaining extent of 1 acre 65 r cent, which includes the
\ndisputed pathway also, was partitioned between the two and out of that each of
\nthe brothers had taken 82  cents and in that sale deed, it is also found
\nmentioned about the disputed pathway as under:\n<\/p>\n
\t“…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
\ntPjk; 25 klA;F jPh;it U.400\/- bghJeilghijapd; tpguk; i& rh;Bt ek;ghpy; @
\ntpy;ypg[j;Jhh; Buhl;oypUe;J V, gp jgrpy; epyA;fSf;F tUk; fpHBkyo 10 bjd;tly;
\nBky;jiyao 105 fPH;g[uk; jiyao 60 cs;sjpy; V,gp jgrp[y;jhh;fs; g[HA;fpf;bfhs;Sk;
\nbghJeilghij ghj;jpaKk; njd; ehd;Fkhy; tpguk; tpy;ypg[j;Jhh; Buhl;ow;Fk; bjw;F
\nBtyha[jk;brl;oahh; filf;F Bkw;F rPjhbyl;Rkp buA;f ehr;rpahh; nth;fs; tPLfSf;Fk;
\nfpHf;F V jgrpy; 1 egh;fshf uh$hkzp ehlhh; ghf brhj;Jf;F tlf;F njw;Fs;gl;lJ….
\n(emphasis supplied)<\/p>\n
\t16. Placing reliance on the aforesaid extract, he would submit that under
\nEx.A4, they intended that the disputed pathway as their private pathway only to
\nbe enjoyed by them for their ingress and egress and not for any others to use
\nit; subsequently, the said Rajamani Nadar sold as per Ex.A5, his share including
\nthe suit pathway to D2, but with the condition that the said disputed pathway
\nand the pathway which proceeded towards the extreme south should be left as such
\nwithout any construction being raised; and that subsequently all the lands
\nsituated on the southern side so to say excluding the properties sold to
\nSeethalakshmi Ammal (D1), one Velayutham and Ranganatchiar, got vested with the
\nplaintiff and D2 and accordingly he submitted that there is no error apparent or
\nmistake in the Judgment dated 20.12.2006.\n<\/p>\n
\t17. The learned counsel for the review petitioner\/D1 would submit that the
\nboundary should be considered as found detailed in Ex.A4.  The boundary for the
\nextent of 1 acre 82 cents would contemplate the disputed pathway as one of the
\nboundaries, to describe the extent of 165 r cents; once the disputed pathway is
\nshown as a boundary to the extent of 165 r cents, which was partitioned between
\nthe two, then it could not be presumed that disputed pathway also was included
\nin the extent of 165 r cents and the plaintiff has not placed any evidence in
\nthat regard.\n<\/p>\n
\t18. The learned counsel for D1 cited the decision of the Hon’ble Apex
\nCourt in M.M.Thomas v. State of Kerala and Another<\/a> reported in (2000) 1 Supreme
\nCourt Cases 666. An extract from it would run thus:\n<\/p>\n
\t“11. It must be pointed out that any claim for exemption under Section
\n3(2) of the Act must necessarily be in respect of an area which was brought
\nunder cultivation by him before the appointed day i.e. 10-5-1971.  In other
\nwords, if not cultivation was made by him on the land concerned before the said
\ncrucial date its owner cannot base a claim for exemption under sub-section(2).
\nThe appellant did not even mention in his claim petition that he had cultivated
\nthe said land before the said date nor did he mention in his evidence that the
\nland was brought under cultivation even on a single day prior to 10-5-1971.
\nHence, there is no question of considering the exemption under sub-section(2).
\nBut the High Court went out of his claim and found that he is entitled to
\nexemption under Section 3(2).  Therefore the earlier judgment of the High Court
\ndated 13-1-1982 was vitiated by error apparent on the face of the record.\n<\/p>\n
\t14. The High Court as a court of record, as envisaged in Article 215 of
\nthe Constitution, must have inherent powers to correct the records.  A court of
\nrecord envelops all such powers whose acts and proceedings are to be enrolled in
\na perpetual memorial and testimony.  A court of record is undoubtedly a superior
\ncourt which is itself competent to determine the scope of its jurisdiction.  The
\nHigh Court, as a court of record, has a duty to itself to keep all its records
\ncorrectly and in accordance with law.  Hence, if any apparent error is noticed
\nby the High Court in respect of any orders passed by it the High Court has not
\nonly power, but a duty to correct it.  The High Court’s power in that regard is
\nplenary.  In Naresh Shridhar Mirajkar v. State of Maharashtra<\/a> a nine-Judge Bench
\nof this Court has recognised the aforesaid superior status of the High Court as
\na court of plenary jurisdiction being a court of record”.
\n(emphasis supplied)<\/p>\n
\t19. The perusal of the aforesaid decision and more specifically the
\nunderlined portion, would indicate that it was relating to a case wherein the
\nHigh Court without even considering the plea of the petitioner properly, decided
\nthe matter by granting exemption as per Section 3(2) of Kerala Private Forests
\n(Vesting and Assignment) Act, 1971.  Ex facie and prima facie it is clear that
\nthe said procedent has been cited out of context.  However, the Hon’ble Apex
\nCourt’s view on High Court’s power of review is concerned, this Court keeps in
\nmind in deciding this matter.\n<\/p>\n
\t20. Now, it has to be seen as to whether there is any error apparent or
\nwrong understanding of the evidence before this Court, while exercising its
\npower under Section 100 C.P.C.\n<\/p>\n
\t21. I, in my earlier Judgment dated 20.12.2006, under paragraph No.8
\nonwards started discussing the real controversy between the parties and
\naccordingly disposed of the matter on the specific finding that the findings of
\nboth the Courts below were perverse and thereupon arrived at the conclusion.
\nThe issues framed by the trial Court and the points for consideration framed by
\nthe first appellate Court were all considered by this Court and then held that
\neven though evidence was available before both the Courts below, they failed to
\ndecide in favour of the plaintiff.  Exs.A2 to A7 are the crucial documents in
\nthis case and I have discussed those documents in paragraph Nos.8, 9 and 11 of
\nmy Judgment and I have also extracted the certain portions from the Judgment as
\nunder:\n<\/p>\n
\t“8. Right at the outset, I may proceed to refer to Exs.A.2, A.3 and A.4.
\nEx.A.2 is the certified copy of the sale deed dated 10.9.1970 executed by the
\nsaid Rajamani Nadar and Manickavasaga Nadar in favour of Seethalakshmi – the
\nfirst defendant selling a portion at  the north-western corner of the entire
\nextent of their property.\n<\/p>\n
\t9. While describing the property sold under the sale deed Ex.A.2, the
\nsouthern boundary was shown as vendors’ own property under their control for
\npathway purpose and it is significant and pertinent, important and indispensable
\nto note that in Ex.A.2, the southern boundary is not shown as common pathway.
\nBut it is only stated as vendors’ own land.  In such a case, it is not known as
\nto how the first defendant could lay claim over it as pathway meant for her use.
\nHowever, on the first defendant’s side, it is contended that Ex.A.3 and A.4
\nwould refer to the area to the east of the defendants’ property as a common
\npathway, for which learned counsel for the plaintiff would highlight that
\nnowhere in Ex.A.3  or A.4 it is found stated that the pathway referred to
\ntherein is meant for the first defendant.\n<\/p>\n
\t11. It is therefore, just and necessary to scrutinise as to whether both
\nthe Courts below properly considered the evidence on record.  They considered
\nthe relevant documents as though such documents refer to common pathway
\navailable for all the land owners in that area including the first defendant.
\nIt is therefore, just and necessary to scrutinise the documents and see whether
\nthose documents were properly understood by the Courts below.  Ex.A.3, the
\ncertified copy of the sale deed dated 10th March, 1972 executed by Rajamani
\nNadar and Manickavasaga Nadar in favour of Anthoni Nadar Swami,  would describe
\nthe property thus:\n<\/p>\n
\t“vA;fs; iftrKs;s epyj;jpd; kj;jpapy; bjd;tly; ghijf;fhf xJf;fg;gl;Ls;s 12
\nmo mfyKs;s epyj;jpw;Fk; bjw;F njw;Fs; fpHBkylo 127 bjd;tlyo 86 cs;sjw;F Rkhh; 25\n<\/p>\n
– K.S.V.Rajamani Nadar, K.S.V.Manickavasaga Nadar – bfhz;Ls;s kidao epyKk; i&\\
\nepyj;jpw;F tlg[wKs;s 12 (5 mo) mfyj;jpy; _tpy;ypg[j;J}h; BuhL tiuf;Fk; ehA;fs;
\nxJf;fpa[s;s bjd;tly; Buhl;L epyj;jpy; bghJthf ele;J bfhs;Sk; tHpeil tz;og;ghijg;
\nghj;jpaKk;….”\n<\/p>\n
\t22. Adverting to those aspects in my previous Judgment, I highlighted that
\nD1 was not given any right over the suit pathway.  Paragraphs 13 and 14 of my
\nprevious Judgment are self explanatory and they are extracted hereunder for
\nready reference:\n<\/p>\n
\t“13. Ex.A.4 is the certified copy of the partition deed dated 10th January
\n1977 effected between Rajamani Nadar and Manickavasaga Nadar and the relevant
\nportion is extracted hereunder for ready reference:\n<\/p>\n
\t“Vw;fdBt tl gf;fj;jpYk; bjd; filrpapYk; ehk; bghJtha; fpiuak; bra;J
\nbfhLj;Jtpl;l br 46 1\/ 2 ePf;fp ghf;fpa[s;s V 1 br 65 1\/ 2 y; tlghjp br 82  3\/ 4
\nnjw;F khy; _tpy;ypg[j;J}h; Buhl;Lf;Fk; i&\\ Buhl;oypUe;J ne;j epyj;Jf;F tUk;
\nbghJg;ghijahd fpHBkylo 10 bjd;tly; nky;jiyao 105 fPH;jiyao 60 cs;sjw;Fk;
\nrPjhyf&;;kp buA;fdhr;rpahh; nth;fs; tPLfSf;Fk;   – Btyha[jk; brl;oahh; filf;Fk;
\nbjw;F …..”\n<\/p>\n
\t14. The above description would show that the said suit pathway referred
\nto therein is available for ingress and egress of those owning lands to the
\nsouth of that pathway.  It is not found stated that such pathway should be made
\navailable for the first defendant also.  But, on the other hand, it is stated
\nthat the said pathway is available for those having lands to the south of the
\npathway.  English translation of such description of pathway in Tamil in Ex.A.4
\nwould be to the effect that the said suit pathway is proceeding from Sivakasi –
\nSrivilliputtur Road towards south to the land situated to the south of the suit
\npathway.  In Ex.A.4, the same original owners\/vendors as found in Ex.A.2, i.e.,
\nRajamani Nadar and Manickavasaga Nadar declared it so.\n<\/p>\n
\t15. If those original owners wanted to dedicate the suit pathway as common
\npathway, certainly they would have worded it otherwise.  The extent of the
\ncommon private pathway is also found described as measuring 10 feet east to west
\nand 105 feet north to south on the western side and 60 feet south to north on
\nthe eastern side.  Ex.A.1 Map would highlight that the said description in
\nEx.A.4 tallies on ground.  Ex.A.6 is the certified copy of the sale deed dated
\n8th May 1978 which was executed by the said Manickavasaga Nadar in favour of
\nSundaravelu, the plaintiff and in which, the suit pathway is described as under:
\n\t“epyj;jpy; fPH;gf;fk; 10 mo mfy bghJg;ghijf;fhf _tpy;ypg[j;Jhh; BuhoypUe;J
\njA;fs; epyk; Koa[k; tiu tpl;oUf;Fk; ghijia jw;BghJ ne;jg;gj;jpuk; Kyk; fpiuak;
\nthA;Fk; mj;Jtiu ghijf;ffhf 10 mo mfy epyj;ij ePf;fp ghf;fp epyj;jpy; fl;olk;
\nfl;of;bfhs;s Btz;oaJ….”\n<\/p>\n
(emphasis supplied)<\/p>\n
\t23. I could see no error apparent in understanding the real purport of
\nthose documents.  I have adverted to the fact that in Ex.A2, which is the
\ncertified copy of sale deed dated 10.09.1970, executed by the original owners in
\nfavour of D1, Seethalakshmi Ammal, the disputed pathway was shown only as their
\nland and not as a pathway and subsequently in Ex.A4, the said two owners viz.,
\nRajamani Nadar and Manickavasaka Nadar got partitioned the remaining extent of
\nthe property to an extent of 1 acre and 65 r cents out of the total extent of 2
\nacre 12 cents in S.No.30\/1.  I heard both at length regarding this extent is
\nconcerned as to whether the extent of 1 acre 65 r cents as found mentioned in
\nEx.A4 includes the disputed pathway or excludes it?\n<\/p>\n
\t24. The learned counsel for the first respondent\/plaintiff would
\nconvincingly submit that in Ex.A4, it is found mentioned that 46 r cents land
\nwas sold, but the disputed pathway was not an item, which was sold.  In such a
\ncase, Ex.A4 should be interpreted by giving its grammatical meaning that out of
\n2 acre and 12 cents, after deducting 46 r cents, which was sold, there remained
\n1 acre and 65 r cents.  It is an admitted fact that the disputed pathway was
\nforming part of the entire extent of 2 acre and 12 cents.  A fortiori, the
\nextent of 1 acre and 65 r cents includes the disputed pathway.  It is the
\nlogical and grammatical interpretation.  Then, the question arises as to why
\nthen that disputed pathway should have been shown as one of the boundaries in
\nsome documents.\n<\/p>\n
\t25. In all cases blindly it cannot be taken that boundary will prevail
\nover extent.  It all depends upon the facts and circumstances of each and every
\ncase.  At this contest my mind is redolent with the following decisions:\n<\/p>\n
\t(i) M.Rajagopal Mudaliar v. K.R.Venkataraman by power agent K.G.Ramanathan
\nreported in (2002)1 M.L.J.529.  An excerpt from it would run thus:
\n\t“It has been held in Church of S.I.T.A. v. Raja Ambrose, (1978)2 M.L.J.
\n620, as follows:\n<\/p>\n
\t“Where the deed sets out the extent and measurements correctly there can
\nbe no difficulty in determining the subject matter of the grant.  But where no
\nmeasurements are given or the extent mentioned in the deed is either vague or is
\nonly a rough and ready approximation, one has to look to other indications in
\nthe deed in order to fix the identity of the property which is the subject of
\nthe grant.  If the deed in question sets out the boundaries of the property
\nconveyed, then these boundaries will have to be accepted as a clear reflection
\nof the intention of the grantor and they will concluded not only the exact
\npositioning of the property conveyed, but also its true extent”.
\n\tThese decisions are applicable to the case on hand.\n<\/p>\n
\tThe lower appellate Court misdirected itself and although number of
\ndecisions were cited, they were not properly understood.  When the respondent
\nhad purchased only 32 feet x 75 feet and there is no ambiguity in the
\nmeasurements, it is not necessary to go into the question of boundaries or the
\nintention of the parties.  D.W.2 is the vendor of the appellant as well as the
\nrespondent and his evidence only supported the case of the appellant.  There is
\nno reason to discard the testimony of D.W.2.  The boundary description in the
\nother document was relied upon to show that Sankara Naidu could not have
\nretained any property after conveying under Ex.A1.  Simply because there was
\nsome omission in the reference of boundaries, it cannot be concluded that the
\nvendor namely, D.W.2 had no right to convey the property.  As adverted to, when
\nthe theory of adverse possession has been rejected by the lower appellate Court
\nthe case of the respondent mainly depends upon the sale deed, wherein a specific
\nextent above has been conveyed and under the circumstance, the respondent is not
\nentitled to claim more than that taking shelter under the boundaries.  The
\nfinding of the lower appellate Court is based on mere surmise and conjecture and
\nthere was erroneous application of law and, as such, interference is called
\nfor”.\n<\/p>\n
\t(ii) Ramaiya Asari v. Ramakrishna Naicker alias Kollimalai Naicker and
\nanother reported in (2000)3 M.L.J.327.  An excerpt from it would run thus:
\n\t“The question is whether the vendor of the appellant Ramaiya Asari
\nretained any portion in the said Cadastre.  According to the learned counsel for
\nthe appellant, this “Kammi-Jasthi” would take 7 1\/4 kuzhies also.  I can
\nunderstand if it is “Kammi-Jasthi” by half kuzhi or one kuzhi not such a large
\nextent as 7 1\/4 kuzhies.  It should also be noticed that Ramaiya Asari paid his
\nvendor at the rate of Rs.70 per kuzhi only, for 40 kuzhies.  It should be
\nfurther noticed that Ramaiya Asari in the earlier proceedings had said that
\nthere was encroachment in the 40 kuzhies purchased by him.  This would be
\nevident from the judgment in A.S.No.11 of 1972 marked as Ex.B2.  In the said
\njudgment it is mentioned that the claim was for 40 kuzhies and the Court held
\nthat Ramaiya Asari had proved his title with regard to 40 kuzhies purchased by
\nhim.  Only when there is dispute with regard to the extent, the boundaries can
\nbe taken into consideration.  When Ramaiya Asari had purchased only 40 kuzhies
\non the basis of the sale deed in his favour, he cannot ask for anything more.
\nThe mere fact that the northern boundary had not been correctly described, would
\nnot show that he had purchased the additional 7 1\/4 kuzhies also.  One other
\naspect to be mentioned is that Ramaiya Asari has spoken to the fact that before
\nhe purchased the property he had the land measured by a Surveyor, that the
\nSurveyor had given a report Ex.A3 that Ramakrishna Naicker, father of
\nAmbigapathy, had encroached part of Cadastre No.742\/2 on the northern side and
\nthat he was in possession of the same, but the vendor of Ramaiya Asair had not
\ntaken any steps to evict Ramakrishna Naicker from the encroachment.  Thus,
\nRamaiya Asari was aware that the extent that was available for sale and actually
\nsold and given possession of, was only 40 kuzhies.  The lower appellate court
\nhas adverted to this aspect and held that Ramaiya Asari cannot claim anything
\nmore than 40 kuzhies.  The decisions relied on by the learned counsel, in my
\nview, have no application to the facts of the present case.
\n\tIn The Palestine Kupatam Bank Co-operative Society Ltd. v. Government of
\nPalestine, A.I.R. 1948 P.C.207:62 L.W.21, it has been held that where in the
\ncase of a grant of land there is a conflict between the description by
\nboundaries and the area mentioned in the grant, the principle of preferring the
\ndescription by fixed boundaries to the conflicting description by area should be
\napplied in the construction of the grant, and the statement as to area should be
\nrejected as false demonstration”.\n<\/p>\n
\t(iii) T.B.S.seela Bodi Baicker v. T.V.K.Kama Raja Pandiya Naicker<\/a> reported
\nin 1943-MLJ-622.  An excerpt from it would run thus:\n<\/p>\n
\t“(i) Description by boundaries leaving gaps here and there is by no means
\nuncommon and the Court cannot reject such a description as of no significance
\nand regard the instrument as involving no ambiguity latent or patent.\n<\/p>\n
\t(ii) Where the intention of the parties in regard to the schedule of
\nproperties in a deed is to describe more particularly what was referred to by
\nmere name in the body of the instrument that description by boundaries cannot be
\nregarded as a general description and the name as a specific description so as
\nto give effect to both by treating the specific as restricting the general.\n<\/p>\n
\t(ii) Falsa demonstratio non nocet is a rule which enables a Court to
\ndisregard a part of a description, as false and inadvertently inserted, only
\nafter it has reached the conclusion that the property conveyed was that
\nindicated by the other parts of the description.  All rules of construction
\nproperly applicable to the case should be called in aid to ascertain the true
\nmeaning of the deed and it is only when they are exhausted and it is still not
\npossible to reconcile the inconsistent parts of the description, that the maxim
\ncan be invoked as a last resort to justify the rejection of some part of it.\n<\/p>\n
\t(iv) Even in the case of a modern instrument in which there is a latent
\nambiguity the rule of contemporanea expositio is applicable and evidence may be
\ngiven of user under it to show the sense in which the parties to it used the
\nlanguage they have employed.  Though the rule as a guide to the interpretation
\nof documents is often accompanied with danger and great care must be taken in
\nits application, it is no reason for not applying it if the circumstances of a
\ncase call for or justify its application.\n<\/p>\n
\t(v) The acts and conduct of the grantee as well as those of the grantor
\nare relevant for the purpose of the application of the rule of contemporanea
\nexpositio.  It cannot be said that the rule is applicable only to the acts of
\nthe grantor nor is there anything in the reason of the rule to so restrict its
\napplication.\n<\/p>\n
\t(vi) There is no priority in the application of the various rules of
\ninterpretation including the rule of contemporanea expositio, for they are only
\nclues to the true meaning of ambiguous instruments which must be applied as the
\ncircumstances of a particular case may appropriately require or suggest.\n<\/p>\n
\t(vii) There is no hard and fast rule that in a conflict between a
\ndescription contained in a deed and that contained in an inventory, map or
\nschedule annexed to the deed, or between a description by name and description
\nby boundaries, the former should be held to prevail.  Each case depends on its
\npeculiar facts.\n<\/p>\n
\t(viii) In applying the rule contemporanea expositio attention must be
\ndirected particularly to the user of the property during the period immediately
\nfollowing the execution of the deed as being the most material, especially when
\nconflicts are found to have arisen between the parties subsequently.\n<\/p>\n
\t(ix) There is no reason why the finding of the Courts below, as to
\npossession of the disputed property immediately following the execution of the
\ndeed though arrived at on the issue of adverse possession should not be taken
\ninto consideration, if it is relevant and material in interpreting the deed
\naccording to the true intention of the parties”.\n<\/p>\n
\t26. Here, the facts clearly demonstrate that excluding 46 r cents sold by
\nboth the brothers, the remaining 1 acre 65 r cents includes that disputed
\npathway and they intended under Ex.A4 itself, that it should be their private
\ncommon pathway and accordingly, while they effected partition, they specified
\nso.  As per Ex.A5 one of the brothers viz., Rajamani Nadar sold in favour of the
\nplaintiff his entire share of 82  cents, which he got under Ex.A4.  In
\nparagraph No.15 of my earlier Judgment, the relevant portion is found extracted
\nthus:\n<\/p>\n
\t“epyj;jpy; fPH;gf;fk; 10 mo mfy bghJg;ghijf;fhf _tpy;ypg[j;Jhh; BuhoypUe;J
\njA;fs; epyk; Koa[k; tiu tpl;oUf;Fk; ghijia jw;BghJ ne;jg;gj;jpuk; Kyk; fpiuak;
\nthA;Fk; mj;Jtiu ghijf;ffhf 10 mo mfy epyj;ij ePf;fp ghf;fp epyj;jpy; fl;olk;
\nfl;of;bfhs;s Btz;oaJ….”\n<\/p>\n
\t27. The learned counsel for the review petitioner\/D1 would submit that
\nthere is a clause in the schedule in Ex.A5 itself to the effect that the said
\npathway is meant as one belonging to Anaiyur Panchayat.  I would like to
\nhighlight that the said clause should not be understood in that manner.  It is
\nonly a formal clause showing that the entire property is in Anaiyur Panchayat
\nand nowhere it is stated that the pathway belongs to Anaiyur Panchayat.  The
\nfurther additional clauses would further make the point clear that various
\nclauses were added as formal clauses for registration purpose.  I would like to
\nextract hereunder that portion of Ex.A5, which clearly highlights as to how such
\nan argument on D1’s side is untenable.\n<\/p>\n
\t“… ghijf;fhf tpl;L ghf;fp epyj;jpy; fl;olk; fl;of; bfhs;sBtz;oaJ Mida{h;
\ngq;rhaj;J Bghh;Lf;Fs;gl;lJ rptfhrp gq;rhaj;J a{dpaidr; Brh;e;jJ tptrhaj;Jf;F
\nyhaf;fw;wJ fl;olk; fl;of;bfhs;s tpw;fg;gLfpwJ.  brz;L vz;gj;jp nuz;Bl Kf;fhy;
\ncs;s epyk; fpiuak;.\n<\/p>\n
\tnjd; jw;fhy khh;f;fl; kjpg;g[ U.41375.\n<\/p>\n
\tFwpg;g[: i& epykhdJ rkjskw;W bghpa fplA;FfSld; nUg;gjhy; khh;f;bfl;
\nkjpg;g[f;F kpft[k; Fiwe;j tpiyapy; tpw;fg;gLfpwJ.  fy;ghiwfSk; nUf;fpwJ.  mitfis
\ncilj;J rkjskhf;f Btz;Lk;”.\n<\/p>\n
\t28. A mere perusal of it would highlight that the clause about Anaiyur
\nPanchayat is meant for indicating the entire 82  cent is in Anaiyur Panchayat.
\nThere is nothing to demonstrate that the suit pathway was agreed to be handed
\nover to the said Panchayat and it was not handed over also to the Panchayat.\n<\/p>\n
\t29. My above interpretation of the clause in Ex.A5 relating to Anaiyur
\nPanchayat, is for the purpose of highlighting that the subject matter of the
\nsale is situated in the Panchayat concerned .  In Ex.A2, which is the sale deed
\nexecuted in favour of D1, it is found specified as follows:
\n\t“jgrpy; Bkw;F nuhk;ehl; hPo rptfhrp rg;o Mida{h; fpuhk;k mad; g[q;ir rh;Bt
\nfh.r.t.uh$kzp ehlhh;, Bf.v!;.tp.khzpf;fthrf ehlhh; 7 30k; eph; 1tJ yl;lh; Vf;fh;
\n2 brz;L 12 cs;s epyj;jpy; tlgf;fk; rptfhrp – – tpy;ypg[j;Jhh; bkapd;Buhl;Lf;F
\nbjw;F vA;fs; iftrKs;s 11 mo mfyKk; cs;s epyj;jpw;Fk; Bkw;F vA;fs; iftrKs;s
\nepyj;jpw;F tlf;F, gq;rhaj;J a{dpad; gs;spf;Tl epyj;jpw;F fpHf;F njw;Fs; fpHBky;
\ntljiy bf$k; 22 bjd;jiy bf$k; 19 bjd;tly; Bky;jiy bf$k; 20 fPH;jiy bf$k;
\nfh.r.t.uh$kzp ehlhh; Bf.v!;.tp.khzpf;fthrf ehlhh; 21 cs;sjw;F Rkhh; 10 11\/24
\nbrz;Ls;s kidao epyk; fhpry; epyk; tptrhaj;Jf;F yhaf;fw;wJ tPL fl;l
\ntpw;fg;gLfpwJ.  a{dpad; gq;rhaj;Jg; Bghh;Lf;Fl;gl;lJ.  rptfhrp gq;rhaj;J
\na{dpaidr; Brh;e;jJ.”\n<\/p>\n
\t30. The underlined portion would clearly highlight that such a reference
\nhas been made not to show that the entire property in Ex.A2 belongs to Panchayat
\nUnion, but it was for the purpose of showing that the subject matter of sale is
\nsituated in Panchayat Board area.  If the interpretation given by D1 is accorded
\nto Ex.A2, it would amount to stating that the said 10 r cents covered by Ex.A2,
\nbelongs to Panchayat itself.  Hence, D1’s interpretation of Ex.A5 is totally
\nuntenable.  Furthermore, in other Exs.A3 to A8, similar clauses are found.  As
\nsuch it really demonstrates that D1 went to the extent of interpreting documents
\nin utterly wrong manner.\n<\/p>\n
\t31. The law is very clear that if any pathway has to be handed over to the
\nPanchayat, there are procedures for it.  But the fact remains that the recitals
\nwould clearly show that as on the date of emergence of Ex.A5, one other third
\nparty was having land in S.No.30\/1 to the south of the property covered under
\nEx.A5 and the pathway starting from Srivilliputhur Main Road, that is branching
\ntowards south and turning towards east and then proceeding towards extreme south
\nand the extent covered by that private pathway also was covered under the sale
\ndeed and this fact cannot be lost sight of.  However, as already extracted
\nsupra, there is a clause in Ex.A5 that there shall be no construction on that
\npathway and that should be kept vacant for being used as a pathway.\n<\/p>\n
\t32. My previous Judgment would clearly indicate as to how subsequently the
\nplaintiff and D2 acquired the entire extent of land except the land purchased by
\nD2 and Velayutha Chettiar and Ranga Natchiar.  As such, the necessity to adhere
\nto the clause that there should not be any construction put up in that pathway
\nbecame otios and redundant.  In such a case, there was clear merger of that
\npathway with the purchaser.  Over and above that D2, who acquired property as
\nper Ex.A2 and who is having the right of ingress to her area has not explained
\nas to how she is entitled to that suit pathway.\n<\/p>\n
\t33. The plaintiff in this case by virtue of Ex.A2 to A7 has clearly proved
\nthat the plaintiff and D2 purchased the entire extent of 2 acres 12 cents except
\nthe extents sold in favour of Seethalakshmi Ammal (D1 herein), who purchased
\nunder Ex.A2, and Ranga Natchiar, who purchased land to the south of the land of
\nD1, and Velayutham, who purchased land to the east of the disputed pathway.
\nD1’s contention that in Ex.A5, there is reference to pathway including the
\ndisputed pathway, would not enure to her benefit for the reason that she was not
\na party to it and for that matter except Ex.A2, the sale deed in her favour to
\nan extent of 10 r cents abetting Srivilliputhur Main Road on the north western
\ncorner of the entire extent of 2 acres and 12 cents, she is having no right over
\nanother extent to be used as a pathway for her and the admitted fact remains
\nthat she has ingress and egress to her land from the said Srivilliputtur main
\nroad.  The core question arises as to whether D1, who is not a party in Exs.A3
\nto A7, could rely upon them so as to derive benefit in her favour.  The answer
\nis at once an emphatic no.  In Exs.A3 to A7, the pathway contemplated is only
\nfor the benefit of those, who derived right under those documents only, and not
\nto D1, who is not a party to it.  This vital and crucial paramount point has not
\nbeen borne in mind by D1.\n<\/p>\n
\t34. The prayer in the plaint is for declaring the exclusive right of the
\nplaintiff and D2 over the suit pathway by virtue of they having acquired right
\nover it and and in such a case, the question of applying the decision in
\nArunachalam Pillai and another v. Sorimuthu Pillai reported in 2004(4) CTC 414
\ndoes not arise.  Here there is no contradicting plea at all.  Hence, the
\nplaintiff is not claiming in one breadth ownership and in another breadth
\neasementary right over another man’s land or in D1’s land.  In the cited
\ndecision the factual position is totally different and a mere perusal of it as
\nextracted supra would demonstrate the same.\n<\/p>\n
\t35. In my previous Judgment dated 20.12.2006, I have adverted to the
\nvarious precedents including the one at paragraph No.27 of it which contemplates
\nthe decision of this Court in Lalithamaheswari v. Poomalai Ammal and two others
\nreported in 1999-2-L.W.596 to the effect that common passage cannot be presumed
\nunless there is a document indicates the same.  Section 19 of the Indian
\nEasement Act, 1882 is reproduced here under for ready reference:
\n\t“19.Transfer of dominant heritage passes easement.- Where the dominant
\nheritage is transferred or devolves, by act of parties or by operation of law,
\nthe transfer of devolution shall, unless a contrary intention appears, be deemed
\nto pass the easement, to the person in whose favour the transfer or devolution
\ntakes place.\n<\/p>\n
Illustration
\n\tA has certain land to which a right of way is annexed.  A lets the land to
\nB for twenty years.  The right of way vests in B and his legal representative so
\nlong as the lease continues”.\n<\/p>\n
In fact, in accordance with the principles embodied in the aforesaid decision, I
\nhave decided the case earlier by highlighting that by the plaintiff and D2
\nhaving purchased under different deeds as set out therein, became the owner of
\nthe entire extent of 2 acres and 12 cents, except those aforesaid three pieces
\nof land sold in favour of three persons referred to supra.\n<\/p>\n
\t36. In my previous Judgment in paragraph No.18, I highlighted by giving
\nthe excerpt from Ex.A5 that the suit pathway has been described as common
\npathway for persons owning lands on the south and not to D1, who is owning land
\non the north western corner of the entire extent of 2 acres and 12 cents.\n<\/p>\n
\t37. As such D1 is not concerned with the said common pathway, which was
\nreferred to in those subsequent documents, which emerged relating to the portion
\nsituated on the southern portion of S.No.30\/1, wherein D1 was not at all a party
\nand the disputed pathway was referred as common pathway only relating to those
\npersons, who derived benefit under those deeds.\n<\/p>\n
\t38. In Ex.A4, the partition deed between the brothers viz., Rajamani Nadar
\nand Manickavasaka Nadar, it is clearly found spelt that out of 2 acres 12 cents
\nof land, which belonged to them after disposing of an extent of 46 r cents, the
\nremaining 1 acre 65 r cents was partitioned between them.  Incontrovertibly D1
\nas per Ex.A2 purchased an extent of 10 r cents and the said Velayutham purchased
\n5 r cents, Renga Natchiar purchased another 5 r cents and as per Ex.A3 R.C.S.
\nChurch purchased an extent of 25 cents.  As such, the total extent comes to 46 r
\ncents, which both the brothers sold and it is therefore obvious that the
\nremaining extent after deducting 46 r cents from the total extent of 2 acre 12
\ncents, comes to 165 r cents, which obviously and indubitably includes the
\ndisputed pathway also.  Subsequently, as per Ex.A8, D2 purchased from R.C.S.
\nChurch that 25 cents also, as already highlighted above, the plaintiff and D2
\npurchased the entire extent of 165 r cents including the suit pathway.  In other
\nwords, the plaintiff and D2 virtually stepped into the shoes of the original
\nowners viz., Rajamani Nadar and Manickavasaka Nadar relating to 165 r cents and
\nthey were enjoying their own lands and the suit pathway is the common pathway of
\nboth of them and the suit has been correctly filed for declaring their common
\nright of pathway over the suit pathway.\n<\/p>\n
\t39. The first appellate Court framed the point No.1 for consideration as
\nto whether the suit pathway is the exclusive pathway for the plaintiff and D2
\nand such formulation of point for consideration was not correctly dealt with and
\ndecided with reference to the documentary evidence available on record and those
\nfacts I have referred to in my earlier Judgment dated 20.12.2006 by discussing
\nthose documents and hence, in the review petition, their contention as though
\nthis Court has not considered earlier \/the first appellate Court’s version is
\nneither here nor there.\n<\/p>\n
\t40. In my previous Judgment, I have clearly pointed out that both the
\nCourts below were perverse in their approach in dealing with the matter.\n<\/p>\n
\t41. My mind is redolent with the provisions of Section 114 of C.P.C. and
\nalso order XLVII of C.P.C. and the Hon’ble Apex Court’s verdict cited supra,
\nwhich contemplate the review powers of this Court.  My above discussion would
\nshow that absolutely there are no mistakes in the approach of this Court in
\nallowing the second appeal.  Considering the pros and cons of the matter by
\napplying the correct provisions of law and noting the perversity in the
\nJudgments of both the Courts below, they were set aside and the original suit
\nwas decreed as discussed supra.  In view of my discussion supra, it is apparent
\nthat there is no scope for review.  In fact, D1 wanted to use this review
\npetition as a tool to canvass before this Court to replace my earlier reasoned
\nJudgment with some other antithetical view.   All these aspects were in detail
\nadverted to in my earlier Judgment and hence, I am of the considered opinion
\nthat there is no error apparent in my earlier Judgment and accordingly, I am of
\nthe view that this review petition has to be dismissed. Hence, there is no merit
\nin this review petition and accordingly, the same is dismissed.  No costs.\n<\/p>\n
smn<\/p>\n
To\n<\/p>\n
1.The Subordinate Judge,
\n  Srivilliputtur,
\n  Kamaraj District.\n<\/p>\n
2.The Principal District Munsif,
\n  Sattur.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Seethalakshmiammal vs Hariram Sundaravel on 10 March, 2008 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-168761","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSeethalakshmiammal vs Hariram Sundaravel on 10 March, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/seethalakshmiammal-vs-hariram-sundaravel-on-10-march-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Seethalakshmiammal vs Hariram Sundaravel on 10 March, 2008 - 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