DARPALI SADAGAR Vs. NAJIR AHMED

JUDGEMENT

(1.) This appeal arises out of a dispute between grantees of two conterminous plots of land within the khas mahal of Government. Plaintiff was given lands in the south and defendant lands in the north, the grant to both parties being from the year 1312 B.S. The dispute is regarding the boundary line between the parcels. The Courts below have decided against the plaintiff. Hence this appeal by him. The question depends upon the construction of the leases with regard to the boundary line. In the lease to the plaintiff the land is thus described--"land lying with in the boundaries as shown in the map which is in the settlement papers and appertaining to the Sudar khas mahal, etc." and again in the schedule as "4 drones 14 kanis of land in dag No. 17421/3796 of the present survey, etc." The defendants land is similarly described in his lease, "land lying within the boundaries as shown in the map which is in the settlement papers, etc." and in the schedule as "I drone 5 gandas of land in all covered by dag No. 1742/13797 of the present survey, etc." It is admitted that the reference to the map in the leases has this effect, that it should be treated as incorporated in the leases and forming part of the documents. If things stood alone, there would have been no question that each party would be entitled to the dag as shown in the map as forming his parcel and the boundary line would have been the line drawn in the map. In the map, however, at the place where the boundary line has been drawn a gopath has been depicted but as a matter of fact there is no gopath in the locality. There is, however; actually a gopath in existence further to the south of the boundary line as drawn in the map. Plaintiff's case is, that notwithstanding the fact that a gopath has been shown near the boundary line which does not exist there, he is entitled to all the lands up to the line as drawn in the map, with out reference to the actual site of the gopath. He further urges that the gopath not having been described as the boundary, the mistake in the map as to the true position of tie gopath is immaterial and no enquiry should have been directed as to its exact situation. The contention of the defendant on the other band is that the gopath having been depicted in the map, where the boundary line was drawn it was the clear intention of the parties that the boundary line should be at the place where the gopath actually is, and that the boundary ought not to be the line as drawn in the map. The question is not free from difficulty, but in my opinion having regard to the authorities the plaintiff's contention should prevail. The manner, most beneficient to the defendant, in which the lease of the plaintiff may be read incorporating the map, seems to me this, "land lying within the boundaries as shown in the map and near the northern boundary line is a gopath." The map is referred to in the leases not for the purpose of showing the site of the gopath, which is not mentioned at all but for the purpose of showing the boundary lines, and tie mistake in the drawing of the gopathstthe place is immaterial. Even if there. had been a description in the lease of the gopath in the manner I have stated, that, in my judgment, would not have affected the boundary as marked In the map, as it "would be merely a false description--a mere false demonstration, which does not effect that, which is already sufficiently conveyed. The well-known rule is " as soon as there is an adequate and sufficient definition, with convenient certainty, of what is intended to pass by a deed, any subsequent erroneous addition will not vitiate it": Parke, B., in Llewellyn V/s. Earl of Jersey (1843) 11 M. & W. 183 : 12 L.J. Ex. 243 : 63 R.R. 569 : 150 E.R. 767. In Mellor V/s. Walmsley (1905) 2 Ch. 164 : 74 L.J. Ch. 475 : 93 L.T. 574 : 53 W.R. 581 : 21 T.L.R. 591, there was a conveyance of land, the exact dimensions being stated in the parcels and marked on a plan and stated to be "bounded on the west by the seashore," which was not a fact. The majority of the Court of Appeal held that the latter words must be rejected. In Lyle V/s. Richards (1866) I.H.L. 222 : 35 L.J.Q.B. 214 : 12 Jur. (N.S.) 947 : 19 L.T. 1, the boundary of a lease hold was described as, "a line drawn from J.V.'s house to a bound stone", and the description of the parcels was followed by the words, "which said premises are particularly delineated by the map on the back of this sett." On this map the boundary line appeared to be drawn from the northeast corner of the house. The position of the house itself was incorrectly represented in the map. It was held that the map was a part of the description and that the boundary line must be taken as drawn on the map. The reasoning of these cases appear to me to be applicable to the case before us. In my judgment the northern boundary of plaintiff's land is the line drawn on the settlement map, and the fact that the gopath is erroneously delineated there does not affect the question. In this view, on the report of the Commissioner appointed for relaying the map which has not been objected to the plaintiff would be entitled to 7 kanis 2 gandas out of the disputed land, and the northern boundary of plaintiff's dag would be the line drawn by the Commissioner in accordance with the settlement map.

(2.) A question of limitation was raised by the defendants but as the leases of both parties commenced from 1312 there does not appear to be any substance in it, and no reliance can be placed by defendant on possession prior to that date in support of his plea.

(3.) I would, therefore, set a side the decree of the Court of Appeal below and decree the appeal in the terms set forth above with costs in all Courts. Walmsley, J.