RAJA SRIMATHU MUTHU VIJIYA RAGHUNATHA DORAISINGAM ALIAS GOWRI VALLABHA THEVAR AVERGAL, ZAMINDAR OF SIVAGANGA, REPRESENTED BY THE ESTATE COLLECTOR Vs. KARUTHAN AMBALAM

JUDGEMENT

(1.) This is an appeal from the decree of the Subordinate Judge of Sivaganga dated 23rd October, 1931, in O.S. No. 10 of 1928. The plaintiff therein was the Zamindar of Sivaganga represented by the Estate Collector, Sivaganga, and he sued for a declaration that only plots I, II and III as marked and described in Sen. A to the plaint and shown in the plaint plan constitute the lands granted on cowle by him to the first defendant on 1 February, 1916, and that the lands described in Schedule B of the plaint are not so included and belong to the plaintiff and that they were wrongly demarcated by the survey authorities as part of the holding of the first defendant. The plaintiff therefore prayed for a correction of the survey register and for recovery of possession of such portions of the lands in Schedule B as had been encroached upon by the defendants after removal of the structures thereon, such portions being particularly marked and shown in Schedule C of the plaint. At all material times the Zamindari was under the management of the Court of Wards and negotiations for the grant of a cowle started early in 1908 with an application by the first defendant on his own behalf and on behalf of several other ryots for the purpose of building houses for himself and the ryots. After inspection by one of the Estate Officials and measurement of the plots a sketch was prepared which was signed by the first defendant and it was ascertained that three plots measuring respectively 9-6-0, 27 and 2 kurukkams (1 kurukkam : 0-56 acre) respectively should be assigned on cowle to the ryots. It is alleged that in November, 1910, the Collector and Agent of the Court of Wards sanctioned the assignment of these plots on payment of the nasar calculated at so much per kurukkam, the rates being different for the different plots. The deed or cowle was however not executed till February, 1916. The plaintiff's case was that what was actually conveyed and intended to be conveyed was the specific area of 38 and odd kurukkams situated in three plots and not all the land that was included in the boundaries which were also mentioned in the description of the property in the cowle deed. This allegation of the plaintiff was disputed by the defendants and that forms the main controversy in the suit, namely, what was the land that was conveyed by the deed of 1916, Ex. B. The learned Subordinate Judge has decided the controversy in favour of the defendants, and the plaintiff appeals.

(2.) The only point that has been argued in this appeal is the point referred to above, riamely, the actual extent of land that was conveyed by the cowle deed of February, 1916. Unfortunately in this case the lower Court does not appear to have given sufficient consideration to all the evidence in the case and directed its mind to all the considerations that arise in deciding a dispute of this kind. No doubt in several places-the learned Subordinate Judge observes that on, a consideration of the entire documentary and oral evidence he has come to a certain opinion; but these general words may amount to nothing more than an unmeaning formula, and we are not satisfied that the learned Subordinate Judge considered the evidence with that amount of care which the importance of the case demanded. We have therefore had to go into all the details of the evidence ourselves and study the various plans filed in this case with some care. Before going into the details of the evidence it is perhaps desirable to say a few words on the question of law that was touched upon in the argument. A reference was made to Durga Prasad Singh V/s. Rajendra Narayan Bagchi (1913) 26 M.L.J. 25 : L.R. 40 I.A. 223 : I.L.R. 41 Cal. 493 (P.C.) and Bomanji Ardeshir V/s. Secretary of State for India (1928) L.R. 56 I.A. 51 : I.L.R. 53 Bom. 230 (P.C.) on behalf of the respondents for the purpose of showing that it was not permissible to construe the cowle deed in the light of what happened before the actual deed was granted. The learned Subordinate Judge relied on Durga Prasad Singh V/s. Rajendra Narayan Bagchi (1913) 26 M.L.J. 25 : L.R. 40 I.A. 223 : I.L.R. 41 Cal. 493 (P.C.) in coming to the conclusion that the negotiations which led up to the grant of the cowle would not be evidence in a case where the question to be decided was the construction of the terms of the deed itself. It is however necessary to point out that Durga Prasad Singh V/s. Rajendra Narayan Bagch (1913) 26 M.L.J. 25 : L.R. 40 I.A. 223 : I.L.R. 41 Cal. 493 (P.C.) was a case where the boundaries were perfectly clear, three of the boundaries being the boundary lines of three different mouzas as per that, the remaining fourth boundary being the boundary of another plot granted to another person. There was thus no difficulty in that case and no dispute even as to what the exact boundaries were. No doubt in a case where the boundaries are undisputed or can be definitely ascertained, the extent which is obviously wrong according to the boundaries can be deemed to be a falsa demonstratio and therefore ignored. In the other case, Bomanji Ardeshir V/s. Secretary of State for India (1928) L.R. 56 I.A. 51 : I.L.R. 53 Bom. 230 (P.C.) the position was indeed more clear. The question there arose whether what was granted was a yearly sum of money (Rs. 4,000) out of the two villages, Juhu and Vile Parla in the neighbourhood of Bombay, or the two villages themselves. The grant was very clear that it was in respect of the two villages named therein and it was admitted in that case that before, this deed what was being given was a money payment and it was obviously the intention of the parties to substitute the previous money payment by something else. It was therefore held that in the circumstances of the case that it was not open to the Government to rely on the previous correspondence which led up to the grant and to contend on the strength of such correspondence that what was really intended to be given was not the two villages but only a sum of money payable every year. It would therefore appear that these decisions will not give much assistance in deciding the controversy in this appeal. In construing the terms of a document it is permissible not only to look at the terms of the document but also to the surrounding circumstances with a view to discover the intention of the parties as expressed in the deed. Thus where the terms are not clear and unambiguous and there is some inconsistency between different parts of the same document the only way of solving the ambiguity, if any, is to look at the surrounding circumstances, namely, the circumstances which led to the grant, and the circumstances subsequent to the grant in order to discover whether any portion of the instrument amounts to a falsa demonstratio. The general question has been dealt within Van Diemen's Land Co. V/s. Table Cape Marine Board (1906) A.C. 92 and in a subsequent case Watcham V/s. East Africa Protectorate (1919) A.C. 533, in which the previous authorities have been reviewed. In the latter case their Lordships of the Privy Council laid down the principle that even in the case of a modern instrument in which there is a latent ambiguity evidence may be given of user to show the sense in which the parties to it used the language they have employed and their intention in executing the instrument as revealed by their language interpreted in this sense. They have laid down the further principle that even where the ambiguity was not latent but patent the same principle would apply, though without in any way conflicting with the well-established principle that where the terms of a deed are clear and unambiguous the parties, what ever their intention, in fact, may have been, on entering into it are bound by its terms, and extraneous evidence cannot be received in explanation of it.

(3.) In the case before us while no doubt the events which led up to the grant which is said to have been made in 1910 though not evidenced by any deed would appear to show that the intention of the parties was that only 38 and odd kurukkams of land as delineated in the plan Ex. U were to be granted to the first defendant and the other ryots, nevertheless there is not sufficient evidence to show that what was actually intended to be granted by the deed of February, 1916, was only what was intended to be granted in 1910. Jo doubt the deed recites a letter of the agent of the Court of Wards of 8 November, 1910; but that letter has not been produced by the plaintiff though referred to in the plaint and also referred to in the first defendant's written statement. It was the first defendant's contention in the written statement that even according to what was granted to him in 1910 he was entitled to all the lands that are now claimed by him. It is possible that during this interval - between November, 1910 and February, 1916 - something might have happened which led the plaintiff's officials to grant more than what was originally granted or intended to be granted in 1910. That this is not a mere possibility is shown by the fact that a suit had been instituted in 1914 by one Palaniappa Chetti against the present plaintiff and the first defendant in respect of the western portion of the land now claimed as part of plot I by the first defendant. It is extraordinary to find that even in the plaint the history of the events which led up to the grant shows a hiatusin more than one place. In paragraph 5 of the plaint the history is taken up to 4 May, 1908, when a sketch was prepared and statements were recorded. What happened thereafter till November, 1910, is passed over in silence. As a matter of fact this silence as to the events that took place between 1908 and 1910 is suggestive; because, during this interval what happened was that though at first there was the idea of granting a cowle to the first defendant and his fellow ryots subsequently the Court of Wards decided to sell the plots in public auction and actually sold them in public auction and one of the purchasers therein was the plaintiff in, the suit of 1914. It i$ therefore obvious that before, the Court of Wards decided to assign the lands to the first defendant and the other ryots in November, 1910, there was this difficulty in the way of the Court of Wards in making the grant brought about by these sales in auction to certain Chetti purchasers.; and it is certainly possible that this difficulty might have led the Court of Wards to grant more than what was originally intended. In any case the order of the Collector and agent to the Court of Wards dated 8 November, 1910, has not been produced and it is impossible to say in its absence what exactly was granted or intended to be granted by that order. No satisfactory explanation is forthcoming for the omission as to why this important letter has not been produced in evidence. It is not alleged that it is not available. All that is alleged is that this omission might have been due to carelessness or a belief that it was unnecessary on the part of the legal advisers of the plaintiff in the Court below. The plea of carelessness is not, at its best, a plea entitled to much weight and when the circumstances are such that it is difficult to be certain that the plea of carelessness is not put forward in order to cover up a deliberate omission, it is impossible to overlook an important omission of this kind. It is prima facie not likely that the legal advisers of the plaintiff would have failed to perceive the importance of filing this document in evidence, which was relied on by the first defendant also in his written statement. It is certainly not open to the plaintiff-appellant in these circumstances, that is, in the absence of the letter in question, to contend that that letter conveyed exactly what was described in the plan Ex. U and no more. It may be mentioned in this connection that no application was made at the time of the filing of the appeal or subsequently for permission to file this letter or order as additional evidence. The other hiatus in the plaint refers to the interval between November, 1910 and February, 1916. During this interval the suit had been filed by one of the Chetti purchasers as mentioned already and in that suit and in the defence of that suit the present plaintiff and the present first defendant who were both defendants in that suit appear to have made common cause. It is possible therefore that this cooperation in the defence of that suit might have led the plaintiff to agree to give more than what was originally intended when the deed was actually executed in 1916. It is therefore not possible to say from a consideration of the events that led up to the grant that the intention of the parties was clearly to the effect that only the extent of 38 and odd kurukkams as noted in the original plan Ex. U was to be granted and no more. If really that was the intention nothing would have been easier than to affix the plan Ex. U or a copy of it to the grant Ex. B or to refer to that plan in describing the land that was granted. This was not done; and ho reasonable explanation for this omission is forthcoming. It is not as if the plaintiff's zamindari was not well served, for it was under the management of the Court of Wards with an officer of the I.C.S. on the spot as Estate Collector; and it is difficult to believe that those who advised the plaintiff when the deed was executed in February, 1916, would not have suggested a reference to the plan if the intention had been to grant only the plots as shown in the plan. On the contrary, there is the fact that in the cowle itself there is a specific provision as to what should happen if and when it is found that there is a greater extent included in the boundaries mentioned in the cowle. The fourth clause of the grant Ex. B runs as follows: If it is at any time found that the ryot is in possession of larger extent that the said 38-6-0 kurukkams of land the ryots shall pay the landholder for such excess within the boundaries specified hereunder proportionate rent at the rate aforesaid, but shall make over free and unencumbered to the landholders the entire excess beyond the boundaries with damages of rent at the market rate for three faslis prior to the date of such discovery.