GANGA RAWAL GURU Vs. BHERA

JUDGEMENT

(1.) PER Shri Ram Singhthis is an appeal under sec. 224 of the Rajasthan Tenancy Act, 1955 against the judgment and decree dated 28-6-66 by the Revenue Appellate Authority, Udaipur, reversing the judgment and decree dated 23-2-66 by the S. D. O. Bheem. The present appellants had filed a suit under sec. 183 of the Rajasthan Tenancy Act against the present respondents alleging that appellant No. 1 [ganga Rawal] had sold only 17 bighas out of their land [khasra No. 196, measuring in all 47 bighas 4 biswas, but of which 4 bighas 10 biswas had been sold to another person Hazarimal Mahajan], in village Shopuri, to the respondents by a sale deed dated 28-11-55 [registered on 23-2-56]. but the latter had gradually taken possession of another 10 bighas or so within about one year of the sale. It was prayed that the respondents-defendants be ejected from this extra land and possession restored to the plaintiffs. The suit was decreed by S. D. O. against the defendants for 9 bighas 17 biswas. This figure was arrived at on the basis that they were found on evidence to be in actual possession of 30 bighas 9 biswas out of this 17 bighas was what had been sold to them, and 3 bighas 12 biswas were covered by a canal, leaving 9 bighas 17 biswas extra. On appeal, the Revenue Appellate Authority reversed the judgment mainly on the ground that the plaintiffs had been unable to identify the area, which had not been sold by them, and which they asked to be restored to them. Learned counsel for the appellants here [plaintiffs in the suit] argued that in the trial court 4 witnesses had been examined on behalf of the plaintiffs [excluding plaintiff Ganga Rawal and a Land Records Inspector]. All of them had said that only 17 bighas of land had been sold. The sale deed Ex. P. 2, he said, clearly refers to sale of 17 bighas of land. Learned counsel further invited attention to an 'iqrarnama' Ex. P. 1 dated 5-12-55, executed by the defendants in which they said that Ganga Rawal (Plaintiff No. 1] had sold to them 17 bighas of land, that they would not take possession of land more than 17 bighas, and if they do, the seller would be entitled to eject them. Witness Sohanlal P. W. 1 was the writer of the document and witness Hazarimal P. W. 3 was one of the witnesses to it. In their statements in the trial court, they confirmed respectively having written, and having witnessed the execution of, this document. Thus, learned counsel said, not only the sale deed referred to 17 bighas but a further agreement, signed soon after the sale deed, bound the defendants to taking possession of 17 bighas only. They were, therefore, entitled lawfully to keep possession only of 17 bighas. He said that the first appellate court had clearly erred in reversing the S. D. O's. judgment and decree. Learned counsel for the respondents argued that the sale deed gives the boundaries of the parcel of land sold. It also refers to physical possession having been transferred to the defendants over the land sold. This would mean that the entire land, within the boundaries indicated, was sold and possession over it given. Possession must have been given of a specific piece of land otherwise reference to physical possession would be meaningless. He invited attention to Ex. D. W. 1 which is copy of a statement by Amrit Rawal, plaintiff [appellant No. 2 here], recorded in the court of S. D. O. Bheem on 24-8-65, in a suit in respect of this very land. In this statement, referring to the land sold, witness had said as follows

(2.) EX. D-1 esa tks im+ksl ntz gs muds chp esa tehu izfroknh ua- 1 o 2 ds dcts esa gs] c;ukes esa tks Ex. 1 gs tks im+ksl ntz gs os oks gh gsa im+kslks ds chp dh tehu 17 ch?kk ls T;knk gs] blfy, T;knk tehu tks c;ukesa ls os'kh gs og esa ysuk pkgrk gwwa tehu tc osph ml odr jk[km Fkh izfroknhx. k us dqvk [kksnk gs tehu esa ls>km+ oxsjgk fudky dj 17 ch?kk tehu lq/kkjh gsaa 6 ch?kk tehu esa rks ugj fudy xbz gsa This shows that the plaintiffs were not clear about the measurements of the land sold but identified it by boundaries and that the boundaries given in the sale deed were correct He also said that earlier the plaintiffs had taken the stand that there had been no clear demarcation of the land between them and the defendants, and it was held jointly and on that basis had filed a suit for division of holding. In the judgment dated 30-11-64 in that suit, the S. D. O. held that although purporting to sell 17 bighas of land, actually more land was somehow transferred into the possession of the defendants according to the boundaries indicated and they could not discover this fact on the spot. tks gn gnwn 17 ch?kk vkjkth dks eqrfdyh ds cryk;s x;s gsa] muls fdlh dnj os'kh jdck 'kgd esjk o c/kk pyk x;k ftldk fd bye eksds ij oknh xaxk dh ugha gqvka He emphasised on the basis of all this that what was intended to be sold was the land circumscribed in the boundaries indicated. The measurement was loosely mentioned as bighas. No particular care was perhaps taken to measure it, as it was not then valuable land. Possession was, however, given of the entire land intended to be sold. It was, he said, an after-thought to claim return of land in EXcess of bighas, after the defendants had developed the land, investing considerable money. He then argued that this was at best a case of discrepancy between the boundaries and measurements of the land mentioned in the sale-deed. It is a well-settled principle of law that when there is a discrepancy between measurements and boundaries, the area within the boundaries, whether it be more or less than the measurements mentioned, will be the criterion for determining property conveyed, according to law, and the measurements will be rejected as 'falsa demonstration'. He cited the following rulings in support: (i) Nandlal v/s Ghulam Ahmad (AIR 1937 Lahore 940) (ii) T. Rajlu Naidu vs. M. E. R. Malak (AIR 1939 Nagpur 197), (iii) M. Delli Gramani vs. C. R. Ramchandran (AIR 1953 Madras 769 ). He proceeded to say that the defendants had been in possession since 1955. The burden to prove when EXactly they unlawfully dispossessed the plaintiffs and of what parcel of land would be on the plaintiffs. They had not discharged it. He cited the Board's judgment in Thakurlal vs. Bala (1957 R. L. W. R. S. 21) to support his contention that the plaintiffs had to prove the act of dispossession. No evidence had been led by the plaintiffs to show of what parcel of land they were dispossessed and when. All the evidence produced is to show that the defendants possess more land than 17 bighas. This does not mean unlawful dispossession or trespass but only that the actual measurements of the land transferred on the basis of boundaries differed from the measurements mentioned in the sale deed. Regarding the Iqrar Nama Ex P. 1 he said that this did nothing more than repeat the measurements in the sale deed and made no difference. If it was intended to be a modification of the sale deed, it should have been registered. As it is, the document was without value, in regard to the suit. In his rejoinder, learned counsel for the appellants said that the Iqrar Nama has been proved by the evidence of the person who made it and that of one of the witnesses to its EXecution. It has, therefore, to be relied upon as evidence of the intention between the parties, notwithstanding it being unregistered. He referred in this connection to sec. 49 of the Indian Registration Act under which an unregistered document may be received as evidence for a collateral matter. He also said that since no modification of the sale deed, but only further confirmation of it its contents, was involved, the document did not require registration u/s. 17 of that Act. He said that possession by the defendants of more than 17 bighas was wholly unlawful. We have given the most earnest consideration to the matter. It is quite clear from the evidence on record that while the sale deed mentioned 17 bighas, boundaries were also given and the fact of transfer of physical possession was also mentioned in it. This means that some area was actually transferred. That the plaintiff seller did not care to measure it, or did not care to be EXact about the measurements would not alter the fact of actual transfer. As held in the rulings cited by learned counsel for the respondents, where there is discrepancy between the area indicated by the boundaries and the measurements, the former must prevail, and the area indicated by the boundaries must be deemed to have been conveyed. Moreover, the sale deed was EXecuted on 28-11-55 and the transfer of possession obviously took place on that date. The 'iqrar Nama' is dated 5-12-55. On the other hand, the sale deed was registered on 23 2 56. If on 5-12-55 the plaintiff-were in some doubt that possession had been given to the defendants over more land than intended, there was nothing to prevent them from making suitable correction in the sale deed regarding the description of boundaries and from taking back the EXtra land before the sale deed was registered. Whatever may be the position, the plaintiffs Woke up to the discrepancy after several years. By that time, in the belief that they had lawful possession of the land, the defendants had invested money and developed the land. The plaintiffs are unable to indicate the identity of the land of which they claim to have been unlawfully dispossessed. Nor are they able to indicate the date or dates of dispossession. The process is alleged to have been completed gradually over a period of one year since 5 12-55 (the date of the Iqrar Nama) as if the defendants started encroaching immediately after they signed the Iqrar Nama and continued the process without the plaintiffs knowing about it. In the absence of specification of the land under the alleged trespass, a decree for ejectment, if given against the defendants, would be wholly vague and would be incapable of EXecution, as the question would remain from what part of the land the defendants are to be ejected. In view of the circumstances discussed in para 13, we agree with the conclusion of the R. A. A. that the suit under sec. 183 of the Rajasthan Tenancy Act by the plaintiffs must fail. The appeal is in consequence rejected. The plaintiff-appellants will, of course, be free to sue for any other relief, if so advised, in an appropriate court. .