JUDGMENT U.L. Bhat, J. 1. Respondents' mother, during the minority of the respondents, for herself and on behalf of the minors executed a sale deed, dated 30th January 1951 in favour of defendants 1 to 4 in regard to two items of properties. The minors filed the suit for declaration of the invalidity of the document and for recovery of possession with future mesne profits. The suit was ultimately decreed, setting aside the sale deed and directing partition and delivery of possession of 2/3rd share of item 1 with mesne profits and recovery of possession of the entire item 2 with mesne profits. The plaintiffs subsequently levied execution and recovered possession of item 2. Thereupon defendants 1 to 4 filed E. A. 91 of 1968 alleging that plaintiffs have taken excess delivery of a portion of the land and seeking re-delivery of that portion. The petition was originally dismissed but in appeal that order was set aside and the case remanded for fresh disposal. After remand, the executing court allowed the petition and ordered re-delivery. This order was set aside and re-delivery petition dismissed by the appellate court and it is this judgment which is now challenged. 2. Item 2 of the decree is described as a plot measuring 26 x 45 six feet koles with an extent of 1.06 1/2 acres being a part of R. S. No. 338/1. Item 3 is only a repetition of item No. 2. Item 2 of the decree also mentions the four boundaries of the property and they are as follows: In the execution petition, delivery of item 2 was prayed. The delivery account incorporates the same description as in the decree. The delivery account mentions both items 2 and 3 and states that they relate to the same property and what was delivered was the property within the boundaries. In E. A. 10 of 1979 the appellants allege that item 2 of the decree took in only 1.06 1/2 acres, that is the plot measuring 26 x 45 six feet koles but delivery was taken of a larger extent namely 2.13 acres. They sought re-delivery of 1.06 1/2 acres comprising two thaks measuring 8 x 60 and 26 x 15. A commission was taken out by the execution court and the commissioner has prepared a plan and report. These records are Exts. C-1 and C-2.
They sought re-delivery of 1.06 1/2 acres comprising two thaks measuring 8 x 60 and 26 x 15. A commission was taken out by the execution court and the commissioner has prepared a plan and report. These records are Exts. C-1 and C-2. A plot measuring 26 x 45 is marked as plot B and the remaining portion is marked as plot D. The plan shows a thodu near the western and southern extremities but very well inside R.S. 338/1. Both the plots are portions of this survey plot. There is a Panchayat road to the north of both the plots. On the eastern side are nilams. The question is whether the appellate court committed an error of law in holding that item 2 of the decree took in both the plots B and D and not merely plot B. According to learned counsel for the appellants, when there is conflict in description by measurements and boundaries, measurements prevail over boundaries while according to learned counsel for the respondents, the contrary is the correct position. I have been referred in this connection to the following decisions: Zamindar of Pachipenta v. Maharajah of Jeypore XXIII MLJ 97, Subbayya Chakkiliyan v. Manjan Muthia Goundan and another AIR 1924 Mad. 493, Durga Prasad Singh v. Rajendra Narain Bagehi ILR 37 Cal. 293 Kumaran Krishnan v. Ulahanna Mathai 1957 KLT 42 , Chacko Joseph v. Varghese Markose 1957 KLT 485 , Savarimuthu Nadar Chellayyan Nadar v. Kanakku Kali Pillai Padmanabha Pillai 1957 KLT 825 and Krishnamurthi Iyer v. Janaki Amma 1957 KLT 886 . 3. A golden thread runs through all the decisions referred to above. A piece of land may be described in the document or decree correctly or wrongly. Description may be given by reference to village, locality, survey number, lekhom number, extent, measurements or boundaries. At times, descriptions may tally pointing unerringly to a particular plot of land in which case there will be no difficulty in locating the plot. Sometimes the various descriptions given in a document or decree may be in conflict with each other. In such a case, the court is called upon to adjudicate on the identity of the exact plot intended to be dealt with in the document or decree. No doubt, the court will at first try to reconcile the various descriptions.
Sometimes the various descriptions given in a document or decree may be in conflict with each other. In such a case, the court is called upon to adjudicate on the identity of the exact plot intended to be dealt with in the document or decree. No doubt, the court will at first try to reconcile the various descriptions. If that be not possible, one or more of the descriptions may have to be rejected and the decision rested only on the other description or descriptions. When one of the descriptions is vague and uncertain and another description is definite and certain, the latter may be preferred. If none of the descriptions is vague or uncertain, that description which is more certain and stable and least likely to have been mistaken or inserted inadvertently must be preferred if it sufficiently identifies the subject matter of the transaction and the other descriptions must be rejected as erroneous or inaccurate. This is not a rule of law and therefore is not inflexible in character; it is a mere rule of construction which appears to be safe and almost an infallable guide. 3A. In the re-delivery petition, the appellants stated that item 2 of the decree comprised only the plot comprised within the measurements given namely the plot demarcated later by the commissioner as plot B. At the same time, it was not stated in the re-delivery petition that the boundaries given were uncertain or vague or inaccurate. There was no contention raised in the re-delivery petition that the boundaries took in more extent or a bigger plot and the boundaries were erroneous. The Commissioner noticed the boundaries of the plots and marked the same in his plan. Neither party filed objections to the commission records. At the stage of evidence, the appellants tried to establish that the adjoining west and south of plot B there was formerly a thodu and the thodu was filled up a few months after delivery. If that be so, one would have expected the appellants to bring it to the notice of the court immediately and to take out a commission to notice the traces of filling up the thodu. What is crucial in this stand taken at the stage of oral evidence is that the appellants accepted as correct the description of the western and southern boundaries given in the decree as thodu.
What is crucial in this stand taken at the stage of oral evidence is that the appellants accepted as correct the description of the western and southern boundaries given in the decree as thodu. That was why they tried to establish that formerly there was a thodu adjoining the western and southern boundaries of plot B. Even the executing court has pointed out the failure of the appellants to take out a commission to notice these features. But the executing court did not record a specific finding in this regard. The first appellate court held against this contention and that finding is supported by the evidence and circumstances of the case. In this view, the contention now urged on behalf of the appellants that the mention of thodu as the western and southern boundary is erroneous and the boundaries take in a larger area than the area intended to be covered by the decree of the prior documents, is rendered very weak. 4. The commissioner's report will show that the description by extent is wholly erroneous. A plot with measurements 26 x 45 six feet koles can only have an extent of 97 1/2 cents. But the item mentions the extent as 1.06 1/2 acres. Plot D has measurements of 8 x 55 and 28 x 15 six feet koles. The total area works out to be 71 and odd cents. The total area of plots B and D would be about 1.69 acres. According to the averments in the re-delivery petition, the total area is 2.13 acres. Thus, there can be no doubt that the description by extent or area is wholly erroneous. Description by extent and the description by kole measurements themselves are irreconcilable. 5. The northern and eastern boundaries are not decisive in the sense that they would be consistent with the case put forward by either side. The crucial boundaries are those on the west and south. Southern and western boundary is thodu. The thodu is demarcated by the commissioner as lying adjoining not to plot B but lying adjoining plot D. Going by boundaries, it is clear that item 2 of the decree takes in both the plots B and D in which case the measurements would not be 26 X 45 six feet koles and area would not be 1.06 1/2 acres. These boundaries are visible to the eye.
These boundaries are visible to the eye. The parties who entered into transactions prior to the decree must normally be presumed to have seen these physical boundaries. It is wholly unlikely that the parties would have committed any error in describing the thodu as the boundary on the south and the west. If the intention of the parties in those transactions was to include in the transactions only a part of the land comprised within the boundaries, they could have very well stated so. The appellants have no case that those documents contain any such recital. In fact, none of those documents is before the court. Learned counsel for the appellants requested that the parties may be given an opportunity to produce those documents and for that purpose the matter may be remanded. It is too late in the day to make such a request. I do not think there are any bona fides in the request. In the light of what is stated above, the view taken by the appellate court that the description by boundaries is more certain and reliable and least likely to have been mistaken or inserted advertently appears to be correct. Item 2 of the decree is the entire land covered by the boundaries. The appellants have failed to make out that there was any excessive delivery. The appellate finding is confirmed and this appeal is dismissed with costs.