KUPPUSWAMI NAIDU Vs. KRISHNASAMI NAIDU

JUDGEMENT

(1.) HAVING lost in both the Courts below, the plaintiff has filed the above second appeal. 2. The case of the plaintiff is as follows:- The plaintiff's father Alagiriswami Naidu and his brother Ayyaswami Naidu partitioned the properties on 10.10.1934. Under the said partition, the share of 5 acres 62 cents of garden lands in S.No.217/1 of Valukkuparai Village devolved upon the plaintiff's father. Out of the said land, the plaintiff's father sold 2 acres to Nanjama Naidu on 15.3.1940. After the death of the said Nanjama Naidu, his sons sold the said property to the defendant on 17.6.1982. A further partition was held among the brothers. By virtue of the same, the plaintiff got the share of the land measuring 1.81 cents in the garden land at the northern side to the property of 2 acres belonging to the defendant. Since then, the land measuring 1.81 cents has been in possession and enjoyment of the plaintiff and 2 acres has been in possession of the defendant. After the sub division, it came to be known that the defendant was in possession of 2.25 acres instead of 2 acres. Even without the knowledge of the plaintiff, the defendant occupied 25 cents belonging to the plaintiff in course of time. Therefore, the plaintiff filed the suit for recovery of possession of 25 cents. 3. The case of the defendant is as follows:- The measurements in the partition deed had not been correctly given. Similarly, the sale deed dated 15.3.1940 executed in favour of Nanjama Naidu did not contain the correct particulars. The defendant and his father purchased 2.25 acres 25 years back and they have been in possession of the same since then. Since the entire property comprised in S.No.217/1C is in possession and enjoyment of the defendant, it is not correct to contend that 25 cents have been illegally occupied by the defendant. Therefore, the suit is liable to be dismissed. 4. On the basis of the above pleadings, necessary issues have been framed. On the side of the plaintiff, the plaintiff examined himself as Pw1 and Exs.A1 to Ex.A7 were marked. On the side of the defendant, DW1 to DW3 were examined and Exs.B1 to B14 were marked. The documents C1 and C2 viz., Advocate Commissioner's Report and sketch were marked as Court documents. 5. The trial Court, on appraisal of evidence adduced by both parties, would come to the conclusion that the plaintiff is not entitled for the relief as sought for as the measurements mentioned in the sale deed executed on 17.6.1982 are only approximate and since the boundaries would prevail over the measurements, the defendant would be entitled to the possession of the suit property and consequently, the decree for recovery of possession cannot be granted. Aggrieved by that, the plaintiff filed an appeal before the first Appellate Court, which in turn, dismissed the same and confirmed the trial Court's judgment. Hence the second appeal. 6. Mr. Shanmugam, learned counsel for the appellant, while assailing the judgment impugned, would contend that both the Courts committed grave wrong in not referring to the evidence adduced by the appellant/plaintiff, which would establish that the defendant illegally occupied 25 cents which belongs to him and as such, the matter has to be remanded back to the trial Court for proper appraisal. 7. At the time of the admission, the following substantial questions of law have been formulated:- (1) Whether the finding as to adverse possession by the lower Court is based on legal evidence" (2)Whether the rule of estoppel under Section 116 Evidence Act does not apply to the defendant to deny the title of the Vendee or Vendor under Ex.A2 from whom defendant and his father got possession" (3) Whether the Courts below are right in ignoring the admission of the defendant in his evidence that he purchased only 2 acres vide Ex.B2 and paid consideration only for 2 acres while holding that the defendant has purchased 2 acres 25 cents vide the said deed particularly where the title deeds Exs.A1 and A2 show that the plaintiff is entitled to the 25 cents in dispute" 8. On these aspects, I have heard the counsel for the appellant and the respondents. I have also gone through the judgments impugned, documents and other records. I have given anxious considerations to the rival contentions urged by the parties. 9. According to the counsel for the appellant, when the appellant/plaintiff has proved before both the Courts below that the defendant purchased only 2 acres and as such, the excess of 25 cents occupied by the defendant has to be recovered from him and to be handed over to the plaintiff. 10. On the other hand, it is contended by the learned counsel for the respondent/defendant that though the sale deed was executed on 15.3.1940 in favour of the Nanjama Naidu with reference to 2 acres, the measurements and boundaries are correctly mentioned. In the subsequent sale deed, which is executed on 17.6.1982 in favour of the defendant, the boundaries mentioned in Ex.A3 would prevail over the measurements given in the sale deed executed in the year 1940. The main contention urged by the counsel for the appellant is that the lower Court as well as the Appellate Court, instead of considering the validity of the sale deed executed in favour of the defendant, had gone in to the question whether the plea of adverse possession is correct or not and as such, the judgments impugned are wrong. This contention, in my view, is untenable. Admittedly, Ex.A3 sale deed executed by the Nanjama Naidu in favour of the defendant contains the boundaries as well as the extent as 2.25 acres. The question of adverse possession, of course, is incidentally referred to by the Appellate Court. But, the trial Court would elaborately consider the point with reference to the possession of the extent of area viz., 2.25 acres by the appellant/plaintiff on the basis of Ex.A3, by observing that the measurement in Ex.A2, which was executed in favour of Nanjama Naidu, is wrongly given as 2 acres and as such, the document Ex.A3, which contains correct particulars and boundaries as well as the extent, has to be taken as true document. In order to substantiate this submission, the learned counsel for the respondent herein would cite the decision reported in (2003) 3 MLJ 327 (Ramaiya Asari Vs.Ramakrishna Naicker @ Kollimalai Naiker and another). In this context, it should be relevant to refer the observation, which is as follows :- "Whether the deed sets out the extent and measurements correctly, there can be no difficulty in determining the subject-matter of the grant. But where no measurements are given or the extent mentioned in the deed is either vague or is only a rough and ready approximation, one has to look to other indications in the deed in order to fix the identity of the property which is the subject of the grant. If the deed in question sets out the boundaries of the property conveyed, then these boundaries will have to be accepted as a clear reflection of the intention of the grantor and they will conclude not only the exact positioning of the property conveyed, but also its true extent. The boundaries given in the deed will also, in such cases, prevail over the measurement given in the deed, if these are given as approximations. This observation, in my view, would apply in all force to the present case. According to the defendant, the extent of area in Ex.A2 has been approximately given, though the boundaries were correct. The same boundaries were mentioned in Ex.A3, which was executed in the year 1982 and found as 2 acres 25 cents with the same boundaries. Under those circumstances, the plaintiff cannot claim recovery of possession, as the materials available on record would indicate that the defendant is the title holder of entire extent of 2.25 cents with these boundaries by virtue of the sale deed dated 17.6.1982. Therefore, I do not find any merit in the appeal and in the substantial questions of law. Accordingly, the appeal fails and the same is dismissed. No costs.