KASSIM BEEVI Vs. MEERANCHI MYTHEEN BEEVI

JUDGEMENT

(1.) Petitioner was the 6th defendant in a suit for specific performance of a contract for sale of 4 cents of property described as item No. 2 in the schedule to the plaint. The petitioner was impleaded in the suit on the contentions raised that she was a bona fide purchaser of the property for consideration without notice of the agreement to sell. The purchase by 6th defendant is under the document marked Ext. D2 in the suit, and is dated 9-12-1968. The agreement to sell was dated 14-10-1968 and was marked as Ext. P2 in the suit. There was controversy in the suit about the genuineness of Ext. F2. While discussing this issue, the confusion caused by a mistake in the directions in Ext. P2 was noted. For instance, the boundary on the western side was described as this boundary on the southern side; and the suit property was described as the eastern side of an extent of 8 cents extending north - south, while in reality it was 4 cents on the southern side of the 8 cents lying east - west. This aspect of the matter was adverted to by the Trial Court in para.13 of the judgment, which I extract below: -

(2.) The suit was fought on various points right upto this court and was decreed. The plaintiff filed E. P. No. 349 of 1977 with a draft sale deed, the boundaries in which did not tally with the description in Ext. P2 and in the plaint or in the decree, both of which had reproduced the boundary description in Ext. P2. The difference in the boundaries was consequent on the mistake in the boundaries as described in Ext. P2 as pointed out earlier. The decree holder also filed application for correction of the decree, inter alia regarding the boundaries of the property described in the decree schedule. That application was dismissed on the ground that the application for amendment lay only to this court in view of the fact that the matter had been taken up in second appeal to this court. The decree holder filed C. M. P. No. 13226/82 for amendment of the decree in this court, whereupon this court held that the execution court itself had jurisdiction to construe the decree and decide as to what was the property to which the decree related with reference to the pleadings, judgment and other records. It was stated that on the basis of such adjudication the decree holder was entitled to relief in respect of the property actually involved in the suit inspite of the misdescription. The petition was closed with these observations. Thereafter decree holder filed the present execution petition with a draft sale deed in which he incorporated the boundary descriptions of the property as set out in Ext. D2, the sale deed in favour of the petitioner. Despite the fact that the property involved in Ext. D2 and the property forming the subject matter of the decree was one and the same and the fact that the decree holder was entitled to have a deed of sale executed in his favour in respect of that property, the execution petition was vehemently opposed by the petitioner as if the court had no right to have

(3.) This is one of those cases where the execution of a decree is attempted to be stalled on mere technicalities. The suit itself was keenly fought out by the petitioner. The matter was carried through three courts. Thereafter when the execution is taken, technical pleas are raised as if the court is precluded from taking note of the actual state of affairs and conveying the property with a proper sale deed describing the actual boundaries. It is not as if there was any dispute as to the property in regard to which specific performance was sought. It was not in dispute that the property covered by Ext. P2 and that sold as per Ext. D2 was one and the same. That there was a mistake in the boundary description in Ext. P2 is also clear from the observations in Para.13 of the judgment in the suit. The plaintiff is entitled, in a suit for specific performance, to have the property agreed to be sold to him, conveyed with a proper, correct and effective deed of sale. When there is no dispute regarding the identity of the property there is no reason why the actual boundaries of the property, as understood by all the parties, should not be incorporated in the sale deed to avoid any possible confusion in future. It is not as if by doing so the court is traversing beyond the decree or causing any prejudice to any of the parties or conveying property not agreed to be conveyed. In a case of this nature the court is bound to carry out and implement its decree in accordance with its tenor, which in turn would imply that the property should be correctly described with the proper boundaries. That is all that has been done by the lower court in approving the draft sale deed. The plaintiff has only incorporated the boundaries from Ext. D2, the sale deed in favour of the petitioner. In the absence of any dispute that this was the property which was the subject matter of Ext. P2 also, the lower court has only acted rightly in approving the draft sale deed.