B MARIAMMA Vs. O ANTHONY AMMAL AND ORS

JUDGEMENT

(1.) The present second appeal is directed against the judgments and decrees of the Courts below, raising the following substantial questions of law:-

(2.) The brief facts leading to the present second appeal may be stated as follows. The plaintiff-appellant, who claims to be the owner of the property in dispute, made her claim on the basis of the description in the two documents, namely, Ex.A1-Settlement deed dated 5.2.75, executed by Ragamma in favour of Kamalamma and Ex.A5-Sale deed dated 28.3.85, mentioning the description of property as having an extent of 1101 sq.ft., of land. But the extent mentioned in both the documents, namely, Ex.A1 and Ex.A5 being different, the problem was brought before the trial Court by filing the suit for a declaration that the plaintiff-appellant is the owner of the suit property and for a consequential direction to the defendants-respondents to handover vacant possession of the suit property to the plaintiff and as well for permanent injunction restraining the defendants from putting up any construction in the suit property. Though in the plaint, the plaintiff has traced her title from the order of allotment made by the Corporation of Chennai in favour of one Mr.O.Paul in the year 1950-51 under a scheme called "Periamedu Cheri's Slum Improvement" followed by the Ex.A1-settlement deed dated 5.2.75 and Ex.A5-sale deed dated 28.3.85, it was the admitted case of the plaintiff all through the proceedings that when the original settlement deed dated 5.2.75 took place between Ragamma and Kamalamma correctly mentioning the four boundaries of the property at Door No.12, Kapilakananathar Koil Street, Old Slaughter House Road, Royapuram, Chennai, the same description has been clearly and categorically mentioned in the subsequent sale deed, Ex.A5 dated 28.3.85 also. But the extent of land has been shown more than the one shown in the settlement deed, Ex.A1 dated 5.2.75. In the settlement deed dated 5.2.75, only 800 sq.ft., has been mentioned, whereas in the subsequent document, Ex.A5-sale deed dated 28.3.85, the extent has been mentioned as 1101 sq.ft. Therefore, the case of the plaintiff-appellant before the Courts below was that when the plaintiff-appellant being the owner of the property is in possession as per the description of boundaries shown in both the settlement deed and sale deed, by merely mentioning the wrong extent in one document viz., Ex.A1-settlement deed as 800 sq.ft., the relief cannot be declined. The trial Court decreed the suit only to the extent of 800 sq.ft., and refused the relief of recovery of possession. An appeal in A.S.No.81 of 2003 was filed and the learned First Appellate Judge also dismissed the appeal. Aggrieved by the same, the present second appeal has been preferred.

(3.) The learned counsel for the appellant has submitted that the trial Court, while considering the correctness of the documents, namely, settlement deed and sale deed in Ex.A1 & Ex.A5, should have analysed clearly what is the correct description of property to be given to the plaintiff-appellant. This exercise has not been properly discharged by both the Courts below. The learned counsel for the appellant also submitted that the trial Court has at least considered the case of the plaintiff by taking into account the report of the Advocate Commissioner, but the First Appellate Court has not even correctly approached the issue. Therefore, he pressed before this Court to follow the settled principles of law on the ground when there has been a conflict between the extent of land and the description of property, only the latter will prevail over the former. In support of his submissions, the learned counsel relied upon a Division Bench judgment of this Court in Kannu Reddiar v. T.Palanirajan and 4 others, 1995 2 LW 169. He also relied upon two other judgments of this Court in Thiruvengadachari rep.by his Power of Attorney Agent R.Villalan v. Nagarajan and another, 2007 1 CTC 57 and in Second Appeal No.648 of 1999 dated 17.9.2010 (Samayana Thevar v. Abdul Razack).