P. VELU Vs. P. PADMAVATHY AMMA

JUDGEMENT

(1.) Respondents' mother, during the minority of the respondents, for herself and on behalf of the minors executed a sale deed, dated 30th January 1951 in favour of defendants 1 to 4 in regard to two items of properties. The minors filed the suit for declaration of the invalidity of the document and for recovery of possession with future mesne profits. The suit was ultimately decreed, setting aside the sale deed and directing partition and delivery of possession of 2/3rd share of item 1 with mesne profits and recovery of possession of the entire item 2 with mesne profits. The plaintiffs subsequently levied execution and recovered possession of item 2. Thereupon defendants 1 to 4 filed E. A. 91 of 1968 alleging that plaintiffs have taken excess delivery of a portion of the land and seeking re-delivery of that portion. The petition was originally dismissed but in appeal that order was set aside and the case remanded for fresh disposal. After remand, the executing court allowed the petition and ordered re-delivery. This order was set aside and re-delivery petition dismissed by the appellate court and it is this judgment which is now challenged.

(2.) Item 2 of the decree is described as a plot measuring 26 x 45 six feet koles with an extent of 1.06 1/2 acres being a part of R. S. No. 338/1. Item 3 is only a repetition of item No. 2. Item 2 of the decree also mentions the four boundaries of the property and they are as follows:

(3.) A golden thread runs through all the decisions referred to above. A piece of land may be described in the document or decree correctly or wrongly. Description may be given by reference to village, locality, survey number, lekhom number, extent, measurements or boundaries. At times, descriptions may tally pointing unerringly to a particular plot of land in which case there will be no difficulty in locating the plot. Sometimes the various descriptions given in a document or decree may be in conflict with each other. In such a case, the court is called upon to adjudicate on the identity of the exact plot intended to be dealt with in the document or decree. No doubt, the court will at first try to reconcile the various descriptions. If that be not possible, one or more of the descriptions may have to be rejected and the decision rested only on the other description or descriptions. When one of the descriptions is vague and uncertain and another description is definite and certain, the latter may be preferred. If none of the descriptions is vague or uncertain, that description which is more certain and stable and least likely to have been mistaken or inserted inadvertently must be preferred if it sufficiently identifies the subject matter of the transaction and the other descriptions must be rejected as erroneous or inaccurate. This is not a rule of law and therefore is not inflexible in character; it is a mere rule of construction which appears to be safe and almost an infallible guide. 3A.In the re-delivery petition, the appellants stated that item 2 of the decree comprised only the plot comprised within the measurements given namely the plot demarcated later by the commissioner as plot B. At the same time, it was not stated in the re-delivery petition that the boundaries given were uncertain or vague or inaccurate. There was no contention raised in the re-delivery petition that the boundaries took in more extent or a bigger plot and the boundaries were erroneous. The Commissioner noticed the boundaries of the plots and marked the same in his plan. Neither party filed objections to the commission records. At the stage of evidence, the appellants tried to establish that the adjoining west and south of plot B there was formerly a thodu and the thodu was filled up a few months after delivery. If that be so, one would have expected the appellants to bring it to the notice of the court immediately and to take out a commission to notice the traces of filling up the thodu. What is crucial in this stand taken at the stage of oral evidence is that the appellants accepted as correct the description of the western and southern boundaries given in the decree as thodu. That was why they tried to establish that formerly there was a thodu adjoining the western and southern boundaries of plot B. Even the executing court has pointed out the failure of the appellants to take out a commission to notice these features. But the executing court did not record a specific finding in this regard. The first appellate court held against this contention and that finding is supported by the evidence and circumstances of the case. In this view, the contention now urged on behalf of the appellants that the mention of thodu as the western and southern boundary is erroneous and the boundaries take in a larger area than the area intended to be covered by the decree of the prior documents, is rendered very weak.