KRISHNAMURTHI IYER Vs. JANAKI AMMA

JUDGEMENT

(1.) THIS second appeal arises out of a suit for a permanent injunction which was dismissed by the first court but decreed, on appeal, by the lower appellate court. Defendant 1 is the appellant. The case has been argued by both sides before me with reference to Ext. A2 plan and so I am also making use of that plan for stating the case. Plots A and B in Ext. A2 are comprised in survey No. 1411/1a and measure in all 23 cents. Plot A lies in the northwestern portion of this survey number and is bounded on the east and south by plot B. On the north plot A is bounded by a lane and the major portion of that plot is bounded on the west by a property belonging to one Kunhikutty amma. South of Kunhikuttv Amma's property there is another property shown in the plan as Thankamma's kudiyiruppa and that property lies to the west of the southern portion of plot A and to the west of that part of plot B which lies south of plot A. The property to the south of plot B is a teak plantation which admittedly belongs to the plaintiffs. To the east of plot B lies survey No. 1411/1b which is shown as Koman Nayar's kudiyiruppa in Ext. A2. Koman Nayar purchased this plot, i. e. , survey No,1411/ib, from one Chettiar, and till his purchase that property was known as Chettiarsthalam. On the north plot B is bounded by the same lane which runs along the northern boundary of plot A. The line MNP in Ext. A2 is the northern boundary line of plots A and B, the line MN being the portion forming the northern boundary of plot a and the line NP being the portion forming the northern boundary of plot B. Plaintiff 1 is admittedly the jenmi of plots A and B. In 1931 she gave a verumpattam lease, Ext. Al, in favour of one Lekshmi Amma, and the main dispute in the present case is the identity of the plot she leased thereunder. In the lease deed the boundaries of the leased plot were given as the lane on the north, Chettiarsthalam on the east, plaintiff's own land on the south and Kunhikutty Amma's property on the west, and the extent was given as 3 cents. The rent stipulated is Re. 1/- per year. The plaintiffs' case is that the lease under Ext. Al was for a kudiyiruppa for lekshmi Amma and that only 3 cents of land forming the northern portion of plot a alone was leased thereunder. By successive assignments, defendant 1 has now obtained the rights of Lekshmi Amma under Ext. Al. His case is that what was leased under Ext. Al was the whole of survey No. 1411/1 A, i. e. , both plots A and B, and not merely 3 cents, and in support of this case he relies upon the description of the property in some of the subsequent assignments, including the last assignment executed in his own favour by his immediate predecessor, defendant 2. In the assignments relied upon by him the extent of the property is mentioned as 23 cents and the boundaries are described in the same manner as in Ext. Al. Ext. BI dated 4-5-1949 is the assignment which defendant 2 got, and ext. B2 dated 18-6-1951 is the assignment defendant 2 has executed in favour of defendant 1. Dw. 2 is defendant 1's father. Both sides admit that, at the time of the execution of Ext B2. there was a fence along the MNP line for preventing cattle from straying from the lane into the land on the south. Dw. 2 says that after taking Ext. B2 he pulled down the fence along the MNP line for repairing and putting up a new fence along the whole line. Alleging that, after taking ext. B2, defendant 1 was attempting to take forcible possession of plot B which was in the possession of plaintiff 1 and he was interfering with the fence along the NP line in order to make out that plot B also belongs to him and is in his possession, plaintiff 1 and her son, plaintiff 2, brought the present suit for a permanent injunction to restrain defendants 1 and 2 from taking possession of plot B and interfering with the fence along the NP line. Defendants contended that plot B also was included in Ext. Al lease, that ever since the execution of Ext. A 1 the said plot was in the possession of the lessees and defendant 1 had obtained possession of it under Ext. B2 and was in lawful possession, and that the injunction asked for by the plaintiffs could not be granted. These contentions were upheld by the trial court which dismissed the suit, but on appeal by the plaintiffs the lower appellate court found the plaintiffs' case to be true and decreed the suit.

(2.) THE appellant's main contention in this court was that the boundaries given in Ext. Al would take in plot B also and that, when there is a conflict between the description of the boundaries and the extent of the land given in a document, the description of the boundaries should be preferred to the extent, and so, it should be held that what was leased under Ext. Al was the whole of survey No. 1411/1a including both plots A and Band not merely 3 cents in plot A. THE usual rule, no doubt, is that when there is a conflict between the area and the boundaries mentioned in a document the description of the boundaries should be accepted in preference to the area mentioned in the document for determining the extent of the land conveyed thereunder. But, this is not an inflexible or infallible rule, and even in the cases in which this rule has been applied, it has been pointed out that when, from the proved circumstances it is clear that the intention of the parties was only to convey the extent mentioned in the document, even though the boundaries would take in a larger area, effect has to be given to their intention and the description of the boundaries cannot be allowed to prevail. In Ibrahim Koyakutty v. Varghese (1951 K. L. T. 117), wherein the description of the boundaries was preferred to the extent mentioned in the document the rule to be applied has been stated as follows: "in the absence of circumstances indicating that the application of the boundaries in determining the extent of the land that passed under the conveyance will lead to an error usually in cases of conflict between the area, survey number and the boundaries mentioned in the documents the boundaries predominate and the rest is considered only as false or erroneous description". After stating this rule their Lordships said: "in this case there are no such circumstances and therefore we are clearly of the view that the disputed property is included in the documents mentioned above". In Zamindar of Pachipenta v. Maharaja of Jeypore (23 M. L. J. 97) Benson and Sundara Aiyar, JJ, have said: "where there is a conflict between the boundaries and measurements more importance would no doubt be ordinarily attached to the boundaries But this is only because parties generally pay more attention to the boundaries than to the measurements of property intended to be conveyed. THE question in every case is what was the intention in that case where there are two conflicting descriptions of the subject matter of a grant or two conflicting parts of the same description that which is the more certain and stable and the least likely to have been mistaken or to have been inserted inadvertently, must prevail if it sufficiently identifies the subject matter. This, again, is not a rule of law and hence infallible in its character, but a mere rule of construction, which serves as a safe and almost infallible guide in determining the intention of the parties, which is the touchstone of all true interpretation. Indeed, it is all controlling and predominates over all the elements of description of the subject matter". When a part of an unoccupied or hilly land, which part has no separate and clear boundaries is conveyed it is not unusual to describe the land conveyed. by stating the boundaries of the whole property of which the portion conveyed forms a part and then state so much extent in that property is conveyed. THE commission report in the present case as well as Ext. Al show that, at the time of the execution of the lease, plots A and B as well as the land to the south of plot B belonging to the plaintiffs were parts of a teak plantation and that the lease was granted to Lekshmi Amma for the purpose of a kudiyiruppa. Even now, plot B is lying as vacant land and the teak trees standing therein appear to have been felled only about seven or eight years before the institution of the suit. THE commissioner found sprouts, seven or eight years old growing up from the stumps of the trees felled from plot B. THErefore such significance cannot be attached, in this case, to the description of the boundaries. THE southern boundary given in Ext. Al would fit in with both cases, for, the southern boundary would be the plaintiffs' land whether plot A alone was leased or whether plots A & B were included in the lease. THE northern boundary also would fit in with both cases. THE eastern boundary given is, no doubt, the eastern boundary of plot B, and the description of that boundary is therefore, inconsistent with the plaintiff's case. But the western boundary is equally inconsistent with the defendants' case. If both plots A and B were included in the lease not only Kunhikutty amma's kudiyiruppa but Thankamma's kudiyiruppa also should have been mentioned as the western boundary. But the appellant's learned counsel contends that no significance can be attached to the western boundary since, although thankamma's kudiyiruppa and Kunhikuttv Amma' Kudiyiruppa both lie to the west of plot A, only Kunjkutty Amma's kudiyiruppa has been mentioned as the western boundary in Ext. Al. He contends that the failure to mention Thankamma's kudiyiruppa also as the western boundary was only due to an over-sight or casual omission. This argument, however, overlooks the fact that the plaintiffs' case is that only 3 cents of land in the north-western portion of survey No. I411/1a was leased under Ext. Al and not that the whole of plot A was leased thereunder. No doubt, defendant 1 is now in possession of the whole of plot A. But that may be due to old trespass by the lessee on unoccupied forest land which was not objected to or noticed by the jenmi when it was made. THEre can be no doubt from Ext. A2 plan that, if 3 cents of land alone was leased under Ext. Al, the western boundary would be only Kunhikutty Amma's kudiyiruppa and no part of the leased plot would lie to the east of Thankamma's kudiyiruppa. Thus, the description of the western boundary is inconsistent with the defendants' case and the description of the eastern boundary is inconsistent with the plaintiffs' case and the description of the other two boundaries would fit in with both cases. In these circumstances, it is clear that some error has crept in the description of the boundaries in Ext, Al, and so, it is not possible to accept the description of the boundaries as evidencing; the intention of the parties.

(3.) FOR the reasons stated above, the decree of the lower appellate court is confirmed and this second appeal is dismissed with costs.