BABU GOURISHANKAR Vs. PATEL SHAIAMLAL

JUDGEMENT

(1.) 1. The appellant brought a suit for a declaration that he was entitled to a half share in the khudkasht and chota ghas lands in mouza Talkesli in the Hoshangabad District, and for possession of such half share on the allegation that he purchased a half share from the respondents by a sale deed dated 1st July 1920. The trial Court passed a decree in favour of the appellant, but on appeal the District Judge set aside the decree and dismissed the suit. The plaintiff has therefore preferred this second appeal.

(2.) THE case turns upon the construction of the sale-deed, which is on record as Ex. P-23. The execution of the sale-deed is admitted and it is also admitted that after the sale-deed the appellant was put in possession of the khudkasht and chota-ghas lands as given in detail at the end of the deed. The difficulty is that there is some inconsistency in the deed, namely, that in the first place the document purports to transfer definite area, i.e., 424 70 acres of sir land and half the khudkasht land. The document further states that an eight-annas share with all rights and privileges is transferred, but then goes on to state that khudkasht and chota-ghas lands of the numbers given below are transferred. Again it is later stated in the document that the purchaser and the vendor shall each have a half share in the land which may subsequently come into possession of the malguzars from the tenants, and that the sir and the eight-annas share of the village, which had been sold, have been put in the purchaser's possession.

(3.) THE learned counsel for the appellant has relied on Jalpaiguri Banking and Trading Corporation Ltd v. Samaresh Chakrabarti 1933 Cal 535, where it has been held that, where there is a sufficient description to identify the property and a later incomplete description given in a deed, the later description can be disregarded ; but to apply this principle there must first be a satisfactory description of the property sufficient to identify it. I do not think that this principle will apply to the present case, where the mere expression "a half share " is first given and then a full and detailed description of the property transferred is stated.