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Judgment
K. Sampath, J.—The plaintiff is the appellant. He filed suit O.S.No.56/88 before the District Munsif Court, Thiruthuraipoondi, against the
respondents herein for a permanent injunction restraining them from interfering with his possession and enjoyment of the suit property alleging as
follows:
He purchased the suit property of an extent of 54 cents out of 2 acres 34 cents in S.No.223/2 under Ex.A-1 on 8.8.1971 from one, Aravamudha
Iyengar. In the same Survey Number, he bought a further extent of 1 acre 22 cents from one Ahamed Sultan Rowther under Ex.A-2 on
22.4.1979. Ever since the purchase, he had been in possession and enjoyment by cultivating them. There was a kanni vaikal (Channel) to the north
of 54 cents may covered by Ex.A-1 and also 30 Palmyrah trees. Of the palmyrah trees, 20 were old trees and 10 were tender ones. After the
purchase of the 54 cents, the appellants had been in possession of the palmyrah trees and also the channel. He had been using the channel for
irrigating his lands covered by Exs.A-1 and A-2. While so ,the second respondent, who was the owner of S.No.224, and his father, the first
respondent herein, due to enmity with the appellants husband started annexing the northern bund of the channel to the second respondent''s
property. With a view to prevent further annexation, the appellant applied to the Revenue Department, had the property in S.No.223/2 measured
and got a new survey number in respect of 1 acre 76 cents under S.No.223/2-B. Survey stones were also planted for the appellant''s property on
14.9.1992. Just prior to the planting of the survey stones the first respondent through his henchmen cut and carried away 10 Palmyrah trees. In
respect of this the appellant lodged a complaint with the police of Thiruthuraipoondi, but they did not take any action. Even after the planting of the
survey stones, the first respondent and his henchmen had been obstructing the enjoyment of the appellant of the channel and the 20 palmyrah trees.
The appellant lodged a complaint with the Revenue Department several times and also to the police. But, no action was taken. On 24.10.1982, the
appellant caused a lawyer notice to be issued to which the first respondent sent a reply through his lawyer on 19.1.1983. Thereafter, the
appellant''s husband gave petitions to the Revenue Department and obtained an order stating that the channel on the northern side and the
Palmyrah tress thereon were in S.No.223/2-B belonged to the appellant. So far as the complaint given to the Police Department was concerned,
the appellant was instructed to take civil. proceedings. In view of the indifferent attitude of the Police and the Revenue Department, the appellant
moved the Vacation Civil Court at Nagai by filing a suit in O.S.No.222/84 and obtained an order of ex parte interim injunction on 24.5.1984. The
appellant also filed a caveat before the Vacation Civil Court at Nagapattinam under Caveat Petition No.4/84. The suit was transferred to the
District Munsif''s Court, Thiruthuraipoondi and renumbered as O.S.No.236/84. The temporary injunction continued. The first respondent had
stated that though S.Nos.224/3, 6 and 7 belonged to the second respondent, only he was managing the property. This prompted the appellant to
seek injunction in O.S.No.236/84 against the first respondent alone. The first respondent contended that the suit had to be dismissed for non
joinder of necessary party, viz, the second respondent. The appellant had filed the necessary application for impleading the second respondent as
party in O.S.No.236/34. So far as the respondents were concerned, they did not dispute the title of the appellant with regard to the lands, but
disputed the title only in respect of the channel and the palymrah trees claiming that they were in possession and enjoyment of the same for a long
number of years. In view of the stand of the respondents that the channel on the north and the 20 palmyrah trees did not belong to the appellant, a
suit seeking declaration and permanent injunction had become necessary to be filed. Due to the formal defects in O.S.No.236/84 the appellant
withdrew the suit under Order 23 Rule 1(3) with permission to file a fresh suit on the same cause of action. The appellant was entitled to
S.No.223/2-B and he had obtained the plan and patta in respect of the said survey number. In that survey plan, the channel had been shown as the
northern boundary. The suit had therefore been filed for declaration of ownership with regard to the northern channel and also the 20 palmyrah
trees to the north of the channel. The respondents resisted the suit contending inter alia as follows:
The appellant did not obtain permission while withdrawing the suit O.S.No.236/84 to file a fresh suit on the same cause of action. The suit on the
same cause of action by including the second respondent as a party, was not maintainable and it was liable to be dismissed in limine. The second
respondent was adopted son of one K. Krishnaswamy Mudaliar and still the appellant had deliberately shown the second respondent as the son of
the first respondent. This had been done with some ulterior motive. The Channel referred to did not belong to the appellant at all. All the northern
and other southern owners were using the channel for irrigating their lands. This had been suppressed by the appellant. It was not true to say that
the channel was situate in the appellant''s property. In the sale deed Ex.A-1 dated 8.8.1971 it was clearly stated that the property was situate to
the south of the channel. Even the parent deed of the appellant showed only that. The predecessor in title of the appellant did not claim any right or
title in either the channel or the trees on the northern boundary. Aravamudha Iyengar did not sell the channel or the trees to the north to the
appellant. He did not have possession. The channel irrigated lands in several survey numbers. The lands in S.Nos.224/3, 6 and 7 were originally
owned by one Thiyagaraja Mudaliar and his son T.V. Ramalingam from whom the second respondent''s adoptive father Krishnaswamy Mudaliar
purchased them under three sale deeds Exs.A-7 to A- 9, all dated 30.9.1959 along with the palmyrah trees. In a family partition on 6.4.1970
those lands were allotted to the second respondent and ever since the second respondent was in possession and enjoyment. All the trees to the
north of the channel belonged to the second respondent and his predecessors-in-title and they were in possession and enjoyment of the same. The
appellant did not enjoy either the palmyrah tree or the channel at any time. Even conceding without admitting that the northern bund and the trees
thereon belonged to the appellant, the second respondent and his predecessors-in-title had been in possession and enjoyment of the same for well
over the statutory period and had prescribed for title by adverse possession. The title claimed by the appellant was barred by limitation. The suit
properties did not belong to the appellant nor were they in his possession. The appellant could not maintain the suit. The'' respondents were not
aware of the alleged sub division and the planting of the survey stones. They did not have notice of any such proceedings. The surveyor could not
have measured the effected sub division and planted the trees. The respondents were not bound by the same. It was not correct to say that the
respondents cut ten Palmyrah trees. The trees which caused obstruction for cultivation were cut by the second respondent. The appellant had given
false complaint to the Police Department and false information to the Revenue Department. The Revenue proceedings were subsequent to the
earlier suit. There was no cause of action for the suit. The first respondent was an unnecessary party. The suit was liable to be dismissed.
The trial Court framed the necessary issues and held as follows:
The appellant had cause of action. There was no mis-joinder of the first respondent. The suit was maintainable. The suit channel was not in the
appellant''s property nor was he in possession. The appellant had not enjoyed the palmyrah trees on the north of the channel. The respondents
were in possession and enjoyment. The plaintiff was not entitled to any relief, so holding, by his judgment and decree dated 9.8.1995 the learned
District Munsif, Thiruthuraipoondi, dismissed the suit with exemplary costs of Rs.1000/-. Aggrieved the appellant filed an appeal in
A.S.No.125/96 before the Principal Subordinate Judge''s Court, Nagapattinam, and the learned Subordinate Judge by her judgment and decree
dated 5.12.1996 confirmed the decision of the trial court and dismissed the appeal. Aggrieved the present Second Appeal has been filed.
Notice of motion was ordered and the respondents appeared through Counsel and the main Second Appeal itself was taken up.
The following substantial questions of law are framed for decision in the Second Appeal:
(1) When the Commissioner''s report and, the issue of patta by the Deputy Tahsildar, Thiruthuraipoondi, clearly show that the suit channel is situate
within the plaintiff''s S.No.323/2-B, Whether the lower Appellate Court erred in dismissing the suit for declaration and injunction of the plaintiff?
and
(2) In view of the extent of the property being specified and the measurement is also clearly stated, will not the description of the area prevail over
the boundary description?
The learned Senior Counsel Mr. K.Chandramouli for Mr. A.Muthukumar, learned Counsel for the appellant submitted that the Commissioner''s
report and the Surveyor''s plan clearly showed the suit property its the property of the appellant and the courts below erred in finding against the
appellant. The learned Senior Counsel referred to the appellant''s document Ex.B.-2, which is only a registration copy of the sale deed by one
Arumughapadayachi in favour of the appellant''s vendor Aravamudha Iyengar. In the said document, the learned Senior Counsel referred to the
description which runs as follows:
From this the learned Senior Counsel wants the Court to infer that the channel is also part of the property conveyed under Ex.B-2. The learned
Senior Counsel also relied on the decision of this Court in Mahalingam v. A.S.Narayanaswamy Iyer and others (1996-I L.W.443) in support of
his argument. He further submitted that the suit channel and the trees on the north of it were acquired in S.No.223/2-B belonging to the appellant
and that therefore she was entitled to the relief prayed for in the suit. The learned Senior Counsel also submitted that the respondents did not claim
any right in the suit channel, but only contended that they were entitled to the trees on the northern bank of the channel. It is his contention that
under Ex.B-2, the land having been described as one situate on the south of the channel and in the enjoyment of the vendor, it would clearly show
that the appellant''s predecessors-in-title were entitled to the channel and consequently the appellant would be entitled to the same. According to
the learned Senior Counsel, all that the appellant prayed for was only a declaration that the suit channel belonged to her, though at the same time
she did not dispute that the suit channel also irrigated the lands of the respondents and other land owners. The learned Senior Counsel placed great
stress on the resurvey which clearly showed that the channel was in the appellant''s property.
As against these contentions;, Mr. T.P.Manoharan, learned counsel for the respondents, submitted as follows:
The surveyor''s report also showed the channel only as Government channel and once the document relied on by the appellant showed the channel
as Government channel, it was not open to the appellant to claim independent title to the same. The learned Counsel also submitted that there was
a clear misreading of the boundaries in the documents by the appellant.
Let us now first see whether the suit channel was also covered by the appellant''s sale deed. The sale deed Ex.A-1 shows the channel as the
northern boundary. The channel is not the subject matter of sale. It is also pertinent to note that the earlier'' document under which the appellant''s
vendor claimed title was filed only on the side of the respondents and marked as Ex.B-2. We should draw a line after the words and then read the
boundaries as given. It starts by saying ""What the document says as in the enjoyment of the vendor is what is contained within the stated
boundaries and the northern boundaries is the channel. It is not possible to read the document as saying that the kanni was in the exclusive
enjoyment of the vendor of the appellant. In my view, that is only the logical reading of the document. As rightly pointed out by the learned Counsel
for the respondents, the kanni is described as Government kanni in the Commissioner''s report. That apart, the appellant''s sale deed does not refer
to any palmyrah tree. No palmyrah trees to the north of the kanni are mentioned in the sale deed. The title of the appellant''s predecessor to the
channel and the palmyrah trees has not been established. The lower Appellate Court has also not accepted the Commissioner''s report on the
ground that the newly planted stones did not bear any revenue mark and that it was very unsafe to rely on them and that measurement had also not
been properly taken. The appellant files a suit, withdrawn it and then gets stones planed. Therefore a new suit is filed. The Advocate Commissioner
and the surveyer go there and lake measurement as per the newly planted stones. The Courts below have rightly rejected the case of the appellant
on this aspect.
The decision of this Court in Mahalingam v. A.S.Narayanaswamy Iyer and others (1996-1-L.W.443) relied on by the learned Senior Counsel
for the appellant cannot be taken as supporting the appellant''s case. In that decision, the learned Judge Srinivasan, J. as he then was, referred to
the earlier decision of this Court in The Church of South India Trust
Association v. Raja Ambrose 1978 - II MLJ 620. In that earlier decision, Justice V. Balasubrahmanyan observed as follows:
The subject matter of the grant would depend on the intention of the parties as expressed in the relevant conveyance deed. Where the deed set out
the extent and measurements correctly, then: can be no difficulty in determining the subject matter of the grant. But where no measurement was
given or the extent mentioned in the deed in order to fix the identity of the property which is the subject of the grant, if the deed in question sets out
the boundaries of the property conveyed, then these boundaries will have to be accepted as a clear reflection of the intention of the grantor and
they will conclude not only the exact positioning of the property conveyed, but also its-true extent. The boundaries given in the deed will also, in
such cases, prevail over the measurements given in the deed, if these are given as approximations.
As observed by the learned judge, the question depends upon the intention of the parties as expressed in the relevant conveyance deed. In the
instant case, it is not possible to hold that the property subject matter of the sale in favour of the appellant included the channel on the north and
palmyrah trees on the northern bund of the channel. Thus, from the stated boundaries themselves, it is clear that the appellant did not purchase and
could not have purchased the northern kanni and the palmyrah trees on the northern bund of the channel. In as much as it has been clearly found
that the property covered by the sale deed in favour of the appellant did not include the channel on the north and the palmyrah trees further north,
the appellant is not entitled to the reliefs prayed for by her in the suit. The decision of the courts below is therefore unassailable. The substantial
questions of law raised are answered against the appellant and the Second Appeal is dismissed. However, there will be no order as to costs.
Consequently, the injunction petition C.M.P.No.5553/97 is also dismissed. RR/VCS.