PEMMARAZU VENKIAH Vs. SECRETARY OF STATE FOR INDIA

JUDGEMENT

(1.) In this case I am unable to adopt the view which has been taken by the District Judge. I turn first to the order made by the Collector under Section 12 of the Surveys and Boundaries Act IV of 1897. There I find this passage: "Unfortunately absolute certainty is not possible in this case owing to the shifting character of the riverbed and the disappearance of land marks referred to." Later the order goes on "I accordingly record my decision that the line indicated in that plan as the line indicated and intended by the Panchayatdars be accepted as the true dividing line between the two villages and that it be demarcated, the excess area of 109 acres odd referred to by the renter falling beyond the line being clearly an accretion to the land appertaining to the Gopalpur Zamindari,"

(2.) Then I find in the written statement put in by the defendant these allegations in paragraph 9: "The plaintiff is entitled only to that land which was therefore enjoyed as part of Sidhantam lanka, subject to the changes due to the shifting character of the river-bed incidental to all lankas. He is put to the proof of his allegation that the suit land was leased to him." Paragraph 5: "The defendant submits that it is a well-known fact that the lankas in the bed of the river Godavari are subject to frequent changes both in shape, extent and surface soil by the action of the river." Paragraph 6: "The lanka land measuring acres 109 odd alleged to have been encroached upon by the Gopalpur proprietor is a gradual accretion to his lanka." In the pattah which was granted to the plaintiff by the Collector the land leased to him is described in paragraph 1 as lanka called Sidhantam lanka of Sidhantam village. The name of the lanka is given as Sidhantam lanka. The extent of the lanka given under the heading boundaries, is acres 777 cents 64. Than the boundaries are set out;.and the northern boundary is Gopalapuram Badeva Lunka, (exhibit A). In, the muchilika which was given by the plaintiff (exhibit IV) the name Sidhantam lanka is given and the area is given as 777 odd acres under the heading "approximate extent."

(3.) It has been argued on behalf of the respondent that having regard to the shifting character of these boundaries as found by the Collector in his proceedings under the Surveys and Boundaries Act and as alleged by the defendant in his .written statement, the extent stated in the pattah may be disregarded and that it must be taken that when the plaintiff took the lease of Sidhantam lanka he knew he was taking a lease of a lanka the boundaries of which were, for physical reasons, liable to shift from time to time. I cannot draw from the fact that the boundaries were of a shifting character the inference which the Government Pleader invited me to draw. I think the fact that the boundaries are of a shifting character and the property leased is liable either to diminish or increase by a process of accretion entitles the man who is contemplating taking the lease to rely upon the area stated in the lease; and it seems to me in drawing that inference I am only proceeding in accordance with the well- known canon of construction which is laid down in the case of Raja Durga Prosad Singh v. Rajendra Narain Bagchi (1909) 10 C.L.J. 570 at pp. 583, 584. The passage to which I refer is on pages 583 and 584 and runs as follows: Consequently the result is that the quantity specifically stated in the lease is 400 bighas, whereas the area contained within the boundaries mentioned therein is 275 bighas odd only. Returning now to the question of the true construction of the subject matter of this lease, the primary canon of interpretation of a deed of grant where there is a conflict between the description of the boundaries of the land conveyed and the description of the quantity, unquestionably is that the description of the boundaries, if it is precise and accurate, dominate the description of the quantity. See Llewellyn V/s. Earl of Jersey (1843) 11 M. & W. 183: 63 R.R. 569, Jack V/s. M lntyrs (1845) 12 Cl. & F. 151, Cowen V/s. Truefitt, Ld. (1898) 2 Ch. 551; (1899) 2 Ch., 309, and M.C. Juer V/s. Walker (1819) 4 Wheaton W.R. 444. On the other hand, there is a supplementary canon equally well established, though instances of its application are much less frequent than those of the other, that if the description of the boundaries is vague and uncertain, it yields to the description of the quantity. See Harrick V/s. Sixby (1867) L.R. I.P.C. 436; Davis V/s. Sheperd (1866) L.R. I. Ch. App. 412; Miller V/s. Walmesby (1905) 2 Ch. 164; Home V/s. Struben (1902) A.C. 454; Mewson v. Prijar's Lessee (1822) 161 U.S. 229; 7 Wheaton U.S. 7. I do not mean to suggest that he is entitled to say, "I claim the physical possession of the precise I area mentioned." He does not put his case higher than this: "those boundaries being admittedly of a shifting character and the area being stated, I am entitled to be put in possession of an area which approximates to the area which is mentioned in the leasa."