KAMAKSHI AMMAL Vs. R. RANGANATHAN CHETTIAR AND ANOTHER

JUDGEMENT

(1.) This second appeal has been preferred by the plaintiff and arises out of a suit filed by the plaintiff for declaration of her title to the suit property, an extent of 40 cents, for recovery of possession of the property and for certain other consequential reliefs. The plaintiff alleged trespass by the first defendant on the suit property in August, 1960 and that is said to be the cause of action for the suit. The 2nd defendant in the suit is her son and he sails with the plaintiff. The trial court decreed the suit as prayed for and on appeal by the 1st defendant, there has been a modification of the decree by the learned Subordinate Judge Nagapattinam. It is this modification that is the subject of challenge in the second appeal. The disputed suit property which is coloured green in the Commissioner's plan attached the decree, forms part of the land T.S. 2788/2 -C. This property and the properties east and west of it all forming part of T.S. 2788/2 -C admittedly belonged to one Manicka Nadar, who purchased the entire extent under two sale deeds Ex. A -1 and A -2, bearing dates 14th December, 1918 and 3rd March, 1920. The total extent of land purchased by Manicka Nadar under the sale deeds as recited therein comes to 1 acre 40 cents. The documents recite that the extent may be more or less (sic). Manicka Nader's wife and son sold a portion of the property purchased by Manicka Nadar under Ex. A -1 and A -2 in the west (in the east is admitted to be a mistake) to one Nataraja Mudaliar, who has figured as P.W. 1 in the case, under Ex. A -3 on 25th April, 1952. The document gives the four boundaries of the property sold and gives the extent as 1 acre, 1 cent 'more or less'. The plaintiffs claims the suit property as part of the property included in Ex. A -3 under a settlement made by this Nataraja Mudaliar evidence by Ex. A -4 dated 7th March, 1954. Subsequent to the sale in favour of the plaintiff, Manicka Nadar's wife and his sons' widow conveyed the remaining portion of the property he purchased under Ex. A -1 and A -2 to one Noor Mohamed Rowther under Ex. B -2 dated 15th October, 1956. This document specifies the western boundary of the property sold as the property of Nataraja Mudaliar covered by Ex. A -3. This document gives the four boundaries of the property sold. The extent sold is given as 18,731 sq. ft. The present first defendant purchased under Ex. B -1 dated 11th January, 1959 the property that had been conveyed in favour of Noor Mohamed Rowther under Ex. B -2. He is the owner of the property east of the property comprised in Ex. A -1 and A -2. The trial court considered that there was no ambiguity in the description of the property scheduled in Ex. A -3, regarding the identity of the property which the vendors intended to convey and the vendees intended to purchase. Identifying the suit property as part of the property covered by the sale deed Ex. A -3 a decree was given in favour of the plaintiff. It may be stated, that, if the extent of the suit property is added in its entirety to the property which admittedly the plaintiff holds under Ex. A -3, the extent secured to the plaintiff would be greater than one acre and one cent. The trial court did not go by the extent mentioned in Ex. A -3. It took the view that the vendors of Ex. A -3 having parted with the property by describing the particular boundaries, the plaintiff got the entire extent within the said boundaries and the first defendant as subsequent purchaser could claim no title to any portion of the property enclosed within the four boundaries of Ex. A -3.

(2.) On appeal, the learned Subordinate Judge examined the extents of the several blocks comprised in the purchases by Manicka Nadar under Ex. A. 1 and A. 2 in respect of which claims have been made by the plaintiff and the 1st defendant. The Commissioner who prepared a plan of the locality has given the extent of the respective blocks. His report and the plan have not been the subject of any challenge. In the Commissioner's plan, the portion in the west marked 'yellow' admittedly belong to the plaintiff. Immediately east of it there is a channel portion, marked, 'blue'. Then comes the disputed area coloured 'green'. East of this is the extent marked 'brown' which admittedly belongs to the 1st defendant. The learned Subordinate Judge takes up for consideration the relative extents of the various blocks the title to which was admitted. The total extent which ought to have been owned by Manicka Nadar, it is found, comes to 65,282 sq. ft. i.e., 2515 sq. ft. in excess of 1 acre 40 cents stated to have been purchased by him. We must here member that the extent stated in Ex. A. 1 and A, 2 is only 'more or less'. The portion marked 'yellow' which admittedly belongs to the plaintiff by virtue of the conveyance from Manicka Nadar's heirs measures 42066 sq. ft. The channel immediately east measures 1344 sq. ft. The measurement or the ridges in the west of the yellow coloured portion is also given by the Commissioner. The extent which admittedly belongs to the first defendant measures only 8258 sq. ft. much less than what is purported to be conveyed to him. The learned Subordinate Judge, having regard to measurements, starts on his decision of the case observing that the brown coloured portion alone does not cover the extent purchased by the 1st defendant under Ex, B 1. After stating this, he observes: - -

(3.) But why should be it not accepted ? What happens if his vendors had no title to move ? No reasons are given. After briefly referring to the contention of the plaintiff and the 1st defendant, the learned Subordinate Judge proceeds to observe: - -