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Judgment
Arnold White, C.J.
In this case I am unable to adopt the view which has been taken by the District Judge. I turn first to the order made by the Collector u/s 12 of
the Surveys and Boundaries Act IV of 1897. There I find this passage: ""Unfortunately absolute certainty is not possible in this case owing to the
shifting character of the riverbed and the disappearance of land marks referred to."" Later the order goes on ""I accordingly record my decision that
the line indicated in that plan as the line indicated and intended by the Panchayatdars be accepted as the true dividing line between the two villages
and that it be demarcated, the excess area of 109 acres odd referred to by the renter falling beyond the line being clearly an accretion to the land
appertaining to the Gopalpur Zamindari,
Then I find in the written statement put in by the defendant these allegations in paragraph 9: ""The plaintiff is entitled only to that land which was
therefore enjoyed as part of Sidhantam lanka, subject to the changes due to the shifting character of the river-bed incidental to all lankas. He is put
to the proof of his allegation that the suit land was leased to him."" Paragraph 5: ""The defendant submits that it is a well-known fact that the lankas in
the bed of the river Godavari are subject to frequent changes both in shape, extent and surface soil by the action of the river."" Paragraph 6: ""The
lanka land measuring acres 109 odd alleged to have been encroached upon by the Gopalpur proprietor is a gradual accretion to his lanka."" In the
pattah which was granted to the plaintiff by the Collector the land leased to him is described in paragraph 1 as lanka called Sidhantam lanka of
Sidhantam village. The name of the lanka is given as Sidhantam lanka. The extent of the lanka given under the heading boundaries, is acres 777
cents 64. Than the boundaries are set out;.and the northern boundary is Gopalapuram Badeva Lunka, (exhibit A). In, the muchilika which was
given by the plaintiff (exhibit IV) the name Sidhantam lanka is given and the area is given as 777 odd acres under the heading ""approximate extent.
It has been argued on behalf of the respondent that having regard to the shifting character of these boundaries as found by the Collector in his
proceedings under the Surveys and Boundaries Act and as alleged by the defendant in his .written statement, the extent stated in the pattah may be
disregarded and that it must be taken that when the plaintiff took the lease of Sidhantam lanka he knew he was taking a lease of a lanka the
boundaries of which were, for physical reasons, liable to shift from time to ''time. I cannot draw from the fact that the boundaries were of a shifting
character the inference which the Government Pleader invited me to draw. I think the fact that the boundaries are of a shifting character and the
property leased is liable either to diminish or increase by a process of accretion entitles the man who is contemplating taking the lease to rely upon
the area stated in the lease; and it seems to me in drawing that inference I am only proceeding in accordance with the well-known canon of
construction which is laid down in the case of Raja Durga Prosad Singh v. Rajendra Narain Bagchi (1909) 10 Cri.L.J. 570. The passage to which
I refer is on pages 583 and 584 and runs as follows: Consequently the result is that the quantity specifically stated in the lease is 400 bighas,
whereas the area contained within the boundaries mentioned therein is 275 bighas odd only. Returning now to the question of the true construction
of the subject matter of this lease, the primary canon of interpretation of a deed of grant where there is a conflict between the description of the
boundaries of the land conveyed and the description of the quantity, unquestionably is that the description of the boundaries, if it is precise and
accurate, dominate the description of the quantity. See Llewellyn v. Earl of Jersey (1843) 11 M. & W. 183: 63 R.R. 569, Jack v. M lntyrs (1845)
12 Cl. & F. 151, Cowen v. Truefitt, Ld. (1898) 2 Ch. 551; (1899) 2 Ch. 309, and M.C. Juer v. Walker (1819) 4 Wheat W.R. 444. On the
other hand, there is a supplementary canon equally well established, though instances of its application are much less frequent than those of the
other, that if the description of the boundaries is vague and uncertain, it yields to the description of the quantity. See Harrick v. Sixby (1867) L.R.
I.P.C. 436; Davis v. Sheperd (1866) L.R. I. Ch. App. 412; Miller v. Walmesby (1905) 2 Ch. 164; Home v. Struben (1902) A.C. 454; Mewson
v. Prijar''s Lessee (1822) 161 U.S. 229; 7 Wheaton U.S. 7. I do not mean to suggest that he is entitled to say, ""I claim the physical possession of
the precise I area mentioned."" He does not put his case higher than this: ""those boundaries being admittedly of a shifting character and the area
being stated, I am entitled to be put in possession of an area which approximates to the area which is mentioned in the leasa.
Then it was suggested on behalf of the respondent that the case made here is not the case which was made in the plaint or which was presented
before the learned Judge in the Court below. Mr. Seshagiri Aiyar, on behalf of the appellant, puts his case alternatively. He said if the Collector
was wrong in his order in the proceedings under the Survey and Boundaries Act and this land belongs to Government, I am entitled to be put in
possession of the 109 acres odd. If, on the other hand, he is right and Government are not in a position to put me in possession of the 109 acres
odd because it belongs to somebody else, then I am entitled to damages for breach of the covenant to put me in possession of the land which was
leased. I think he is entitled to put his case in that manner. Mr. Napier suggested that taking leases of this character partakes of the nature of
gambling and that the lessee takes his chance whether by accretion or washing away during the currency of his lease he gets more or less than the
extent provided for in the lease. I can quite understand that, but the gambling seems to me to be with reference to what happens after he has got
possession of the land under the lease, not with-reference to the area stated in the lease being approximately correct or otherwise.
Then Mr. Napier took the point of limitation and said that assuming the time to run from the date of the muchilika which is, of course, later in
date than the pattah, the plaintiff''s claim was time-barred under Article 116 of the second schedule to the Limitation Act. No question of limitation
was raised before the District Judge. However, Mr. Napier is, of course, within his rights in taking it here and the law requires that we should deal
with it. But as I have come to the conclusion that the case must go back to the District Court, I think the proper order with regard to the plea of
limitation now raised is that the defendant will be at liberty to amend his written statement by raising the plea of limitation.
It seems to me that, subject to this plea of limitation, if, when the suit was brought, the Government was not able to put the plaintiff into
possession of 777 acres or thereabouts which is the extent given of the lanka, they are liable to compensate the plaintiff by way of damages. A
party who lets premises agrees to give possession, and if he fails to do so the lessee may recover damages against him. Sea Coe v. Clay (5) Bing.
440: 30 R.R. 699. I say nothing as to the measure of damages. I leave that to be dealt with by the Court below.
For the reasons which I have stated I hold that the decree of the District Court must be set aside and the case must go back to that Court to be
dealt with in accordance with those observations. Costs will abide the event.
Abdur Rahim, J.
I agree in the order proposed by the learned Chief Justice.