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Judgment
A. Selvam, J.—Challenge in this Civil MiscellaneousSecond Appeal is to the order passed in CivilMiscellaneous Appeal No. 2 of 2006 by the SubCourt, Pudukkottai, wherein the order passed in Execution Application No. 264 of 2001 in ExecutionPetition No. 174 of 1999 in Original Suit No. 39 of1981 by the Principal District Munsif Court,Pudukkottai is reversed.
The Appellants herein as Plaintiffshave instituted Original Suit No. 39 of 1981 onthe file of the Principal District Munsif Court,Pudukkottai for the reliefs of declaration,mandatory injunction and alternatively forrecovery of possession, wherein an executabledecree has been passed and the same has been putinto execution in Execution Petition No. 174 of1999. During pendency of the same, the firstRespondent herein as Petitioner has filedExecution Application No. 264 of 2001 under OrderXXI, Rule 97 of the Code of Civil Procedure,1908. The Executing Court after considering theavailable evidence on record has dismissed the same. Against the dismissal order passed by theExecuting Court, the Petitioner therein asAppellant has filed Civil Miscellaneous AppealNo. 2 of 2006 on the file of the first appellateCourt.
The first appellate Court after hearingboth sides and upon reappraising the evidenceavailable on record has allowed CivilMiscellaneous Appeal No. 2 of 2006 and thereby setaside the order passed in Execution ApplicationNo. 264 of 2001 by the Executing Court andultimately allowed the petition filed inExecution Application No. 264 of 2001. Againstthe order passed by the first appellate Court,the present Civil Miscellaneous Second Appeal hasbeen preferred at the instance of the Respondents1 and 4 to 10.
In the petition filed in ExecutionApplication No. 264 of 2001, it is averred thatthe property, which has been described as ''A B CD E F'' in the plan is originally belonged to thefather of the Petitioner and the same has beenshown as ''A'' schedule. The first Respondent haspurchased the portion, which has been describedas ''A D E F'' under a registered sale deed dated22.10.1975 and the same has been shown as ''B''schedule. The property which has been shown as''C'' schedule has not been sold under theregistered sale deed dated 22.10.1975 and thesame is comprised in T.S. No. 862/2. The propertywhich has been sold under the registered saledeed dated 22.10.1975 is now comprised inT.S. No. 862/3. Now the Respondents have obtaineda decree in Original Suit No. 39 of 1981 inrespect of ''B'' and ''C'' schedules for the reliefs mentioned therein without impleading the presentPetitioner. The present Petitioner is havingright, title and interest over the same. Underthe said circumstances, the present petition hasbeen filed for the relief sought for therein.
On the side of the contestingRespondents, a detailed counter has been filed,wherein the claim made on the side of thePetitioner has been candidly denied.
As adverted to earlier, the ExecutingCourt has dismissed the petition. But the firstappellate Court has allowed the same.
The only point that has now winched tothe fore in the present Civil MiscellaneousSecond Appeal is as to whether the order passedin Civil Miscellaneous Appeal No. 2 of 2006 by the first appellate Court is perfectly correct or the same requires interference?
At the time of admitting the presentCivil Miscellaneous Second Appeal, the followingsubstantial questions of law have been formulatedfor consideration:
a) Whether the first appellateCourt in reversing the well reasoned fairand decretal order of the trial Courtwithout correctly appreciating andapplying the well settled legalpreposition that the boundaries prevailover the measurements?
b) Whether an application underOrder 21 Rule 97 lies at the instance ofthe son of the vendor when the vendorsold the property to successfulPlaintiff, when the claimant is not inpossession of the property?
c) Whether an application underOrder 21 Rule 97 CPC can besuccessfully mentioned by a person whorelies on a oral release in respect ofimmovable property, when such a releaseis prohibited under law and that too whensuch release is not proved and notsupported by consideration?
d) Whether the failure of thefirst appellate Court to consider theJudgment in Second Appeals, S.A. No. 315 of1984 and S.A. No. 1811 of 1986 in theproper perspective as per Section 13 ofEvidence Act has resulted in a legallyuntenable by the first appellate Court?
e) Whether the failure of thefirst appellate Court to frame properpoints for the consideration for thisCivil Miscellaneous Appeal has vitiated the ultimate decision in the Civil Miscellaneous Appeal?
On the side of the Appellants thefollowing additional substantial question of lawhas been raised for consideration:
a) Whether the application underOrder 21, Rule 97 CPC is legallybarred for the reason that the suit filedby the applicant in O.S. No. 282 of 2001 onthe file of Sub Court, Pudukkottai for the very same purpose was not pressed andno permission was obtained from the trialCourt to file an application under Order21, Rule 97 CPC and in suchcircumstances whether present applicationunder Order 21, Rule 97 CPC is barredunder Order 23, Rule 1 of CPC r/w.Section 141 of CPC and on the principles of estoppel and general principle of res-judicata?
Before contemplating the rivalsubmissions made on either side, it would beapropos to look into the following admitted factsand also the main contentions mentioned in thepetition filed in Execution Application No. 264 of2001.
It is an admitted fact that ExecutionApplication No. 264 of 2001 has been filed underOrder XXI, Rule 97 of the Code of CivilProcedure, 1908. It is also equally an admittedfact that the contesting Respondents asPlaintiffs have filed Original Suit No. 39 of 1981for the reliefs declaration, mandatory injunctionand alternatively for recovery of possession,wherein an executable decree has been passed and the same has been put into execution in ExecutionPetition No. 174 of 1999. During pendency of thesame, the petition in question has been filedunder Order XXI, Rule 97 of the Code of CivilProcedure, 1908.
In the petition filed in ExecutionApplication No. 264 of 2001, it has been clearlystated that on 22.10.1975, the father of thePetitioner has executed a sale deed in favour ofthe first Respondent, viz., Brahadambal. Thespecific contention of the Petitioner is that thesale deed dated 22.10.1975 does not cover thedisputed property, which has been shown as ''C''schedule in the plan, which has been annexed withthe petition.
The Executing Court has rejected thecontention urged on the side of the Petitioner.But the first appellate Court has accepted thecontention putforth on the side of thePetitioner.
The learned Counsel appearing for theAppellants has laconically contended that thedeceased first Respondent viz., Brahadambal haspurchased the entire extent of originalT.S. No. 862 under a registered sale deed dated22.10.1975 and since the owner of T.S. No. 863 hasdenied her title and also put up someconstruction, Original Suit No. 39 of 1981 hasbeen instituted for the reliefs of declaration,mandatory injunction and alternatively forrecovery of possession, wherein an executabledecree has been passed and the same has been putinto execution in Execution Petition No. 174 of1999 and further in the sale deed dated22.10.1975, one Chinnammal @ Lakshmiammal has been shown as western boundary owner and herproperty is comprised in T.S. No. 863 and thereforethe vendor of the sale deed dated 22.10.1975 hasnot retained any portion in the western side andthe disputed property is nothing, but strip ofland situates in the western side of OriginalT.S. No. 862 and the Executing Court afterconsidering the clear four boundaries given inthe sale deed dated 22.10.1975 has rightlydismissed the petition, but the first appellateCourt without considering the clear fourboundaries given in the sale deed dated22.10.1975 has erroneously allowed the petitionand therefore the order passed by the firstappellate Court is liable to be interfered with.
In order to fizzle out the contentionurged on the side of the Appellants, the learnedcounsel appearing for the first Respondent has also equally contended that even though in thesale deed dated 22.10.1975 the said Chinnammal @Lakshmiammal has been shown as western boundaryowner, clear east-west measurement has been givenas 28 feet 3 inches and the disputed property hasbeen shown as ''C'' schedule in the plan and thesame is nothing, but a strip of land, whichsituates in the portion of Original T.S. No. 862and the Executing Court without considering theeast-west measurement given in the sale deeddated 22.10.1975 has erroneously dismissed thepetition, but the first appellate Court afterconsidering the east-west measurement in the saledeed dated 22.10.1975 coupled with other evidencehas rightly allowed the petition and thereforethe order passed by the first appellate courtneed not be interfered with.
Along with the present petition, a Rough Plan has been appended with. The entireproperty has been shown as ''A'' schedule and theproperty alleged to have been sold under the saledeed dated 22.10.1975 is shown as ''B'' scheduleand the disputed property is shown as ''C''schedule. In the plan, it has been mentionedthat the property mentioned in the sale deeddated 22.10.1975 is now comprised in T.S. No. 862/3and likewise the disputed property is nowcomprised in T.S. No. 862/2.
A certified copy of the sale deeddated 22.10.1975, which stands in the name of thedeceased first Respondent viz., Brahadambal hasbeen marked as Ex.A.1. Under Ex.A.1, theproperty comprised in T.S. No. 862 has been sold.Further in Ex.A.1 clear four boundaries have beengiven. On the southern side, a channel is inexistence, on the northern side, a drainage is situate, on the eastern side the property of oneSaroja is situate and on the western side theproperty of Chinnammal @ Lakshmiammal is situate.
It is seen from the records thatoriginal T.S. No. 862 has been subsequently dividedas 862/1,2 and 3. The disputed property iscomprised in T.S. No. 862/2. The contention of thefirst Respondent/Petitioner is that the propertymentioned in Ex.A.1 is now comprised inT.S. No. 862/3 and the same does not include thedisputed property, which is comprised inT.S. No. 862/2.
It has already been stated that inEx.A.1 clear four boundaries have been given.Now the only factual aspect is whether the vendorof Ex.A.1 has intended to sell the entire extentcomprised in Original T.S. No. 862 in favour of the deceased first Respondent viz., Brahadambal.Admittedly, in Ex.A.1 both clear four boundariesas well as east-west and north-south measurementshave been given. Since in Ex.A.1 clear fourboundaries as well as measurements have beengiven, the Court has to look into or infer thereal intention of the vendor.
At this juncture, it would be condignto look into the decision in Kamakshi Ammal v. R. Ranganathan Chettiar and Anr. reported in 82 L.W. 142, wherein this Court has dealt with asimilar question.
It is a pristine and also archaicprinciple of law that if in a document in disputeclear four boundaries have been given, fourboundaries would prevail over area. In thedecision referred to earlier, it has been held like thus:
If the deed of conveyance givesboth the extent and the boundaries, theCourt will have to determine what theintention of the parties was at the timeof the grant, having due regard to thelaw of evidence. The problem can ariseonly when there is inconsistency and boththe area and the boundaries are specific.First, we have to ascertain if there isreal inconsistency between the boundariesand area, or is the inconsistency onlyseeming? There can be No. hard and fastrule in a matter of this kind that whenboth the boundaries and area are givenand both cannot stand together, theintention was to convey the entire extentcovered by the boundaries. Equally,reference to the area, particularly when it is not precise, cannot falsify theconveyance by boundaries. One test is,which of them is precise and capable ofidentification and easy location on theground, for the attempt should be to giveeffect to the grant according to terMs. We have to find out which of them may bediscarded and which taken foridentification of the grant, as thegoverning mark or the substantial or truepart of the description.
Even from a cursory look of thedecision referred to supra, it is made clear thatin a deed in question, both extent and boundariesare given, the Court has to determine the realintention of the parties at the time of grant.The specific stand taken on the side of the firstRespondent/Petitioner is that his father has not sold the property, which has been mentioned as''C'' schedule in the plan. But as stated earlierone Chinnammal @ Lakshmiammal (owner ofT.S. No. 863) has been shown as western boundaryowner in Ex.A.1. If really, the father of thefirst Respondent/Petitioner has not intended tosell the disputed property (''C'' schedule) underEx.A.1, definitely some recitals would have foundplace in Ex.A.1. But instead the said Chinnammal@ Lakshmiammal (owner of T.S. No. 863) has beenshown as western boundary owner. To put it innutshell, at the time of executing Ex.A.1, thefather of the first Respondent/Petitioner has notintended to retain any portion of the land inOriginal T.S. No. 862. Simply because in Ex.A.1,the east-west measurement has been given as 28feet 3 inches, as per the dictum given by thisCourt, which has been referred to earlier, it ishighly impossible to come to a conclusion that the disputed property (''C'' schedule) mentioned inthe plan has not been included in Ex.A.1. Admittedly, Ex.A.1 has been executed by thefather of the first Respondent/Petitioner,wherein clear four boundaries have been given.Since clear four boundaries have been given inEx.A.1, the four boundaries given in Ex.A.1 wouldprevail over area.
At this juncture, the Court has tolook into Section 17 of the Indian Evidence Act,1872 and the same reads as follows:
Admission defined.-An admissionis a statement [oral or documentary orcontained in electronic form], whichsuggests any inference as to any fact inissue or relevant fact, and which is madeby any of the persons, and under the circumstances, hereinafter mentioned.
In the instant case, in Ex.A.1 clear four boundaries have been given, wherein it hasbeen specifically mentioned that the property ofChinnammal @ Lakshmiammal is situate on thewestern side of the property conveyed therein.It has already been pointed out that the fatherof the first Respondent/Petitioner has notretained any portion of Original T.S. No. 862. Ifreally, he has retained any portion in thewestern portion of T.S. No. 862, definitely thesame would have been mentioned in Ex.A.1. Further he has clearly admitted in Ex.A.1 by wayof giving clear four boundaries that the propertyconveyed under Ex.A.1 is situate immediately onthe eastern side of the property of Chinnammal @Lakshmiammal. Under the said circumstances, theCourt can very well come to a conclusion that thefather of the first Respondent/Petitioner hasmade clear admission u/s 17 of theIndian Evidence Act, 1872. Therefore viewing from any angle, the Court cannot come to aconclusion that Ex.A.1 does not cover thedisputed property, which has been described as''C'' schedule in the plan.
The executing Court after consideringthe four boundaries given in Ex.A.1 coupled withother evidence has rightly dismissed thepetition. But the first appellate Court withoutconsidering the correct legal position involvedin the present case and also on the basis ofnebulous evidence has set aside the order passedby the Executing Court. In view of thediscussion made earlier, this Court has foundconsiderable force in the contention urged on theside of the Appellants and the contention urgedon the side of the first Respondent/Petitioner isreally sans merit and further the substantialquestions of law raised on the side of the Appellants are really having substance andaltogether the present Civil Miscellaneous Second Appeal is liable to be allowed.
On the side of the first Respondent/Petitioner, an inert attempt has been made to theeffect that Ex.A.2 is nothing, but a blue printsubmitted on the side of the contestingRespondents, wherein also east-west measurementhas been given as 28 feet 3 inches and on thatscore also the contention of the firstRespondent/Petitioner can be accepted.
It has already been discussed in manyplaces that in Ex.A.1, Chinnammal @ Lakshmiammalhas been shown as western boundary owner. As perthe decision referred to supra, the intention ofthe vendor as well as vendee has to beascertained on the basis of four boundaries given in the document in question. In the instantcase, since in Ex.A.1, the said Chinnammal @Lakshmiammal has been shown as western boundaryowner, the vendor of Ex.A.1 has not retained anyportion in Original T.S. No. 862. Probably inEx.A.2 without knowing the east-west measurementof middle portion of Original T.S. No. 862, east-west measurement might have been given as 28 feet3 inches and that itself would not militate thecontention urged on the side of the contestingRespondents. Therefore the residual attack madeon the side of the first Respondent/Petitioneralso goes out without merit.
In fine, this Civil MiscellaneousSecond Appeal is allowed without costs and theorder passed in Civil Miscellaneous Appeal No. 2 of 2006 by the Sub Court, Pudukkottai is setaside and the order passed in Execution Application No. 264 of 2001 in Execution Petition No. 174 of 1999 in Original Suit No. 39 of 1981 by the Principal District Munsif Court, Pudukkottai is restored.