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1999 DIGILAW 397 (KAR)

Ernath v. Digameer

1999-07-28

H.N.TILHARI

body1999
ORDER Hari Nath Tilhari, J.—This civil revision petition arises from the judgment and order dated 20.7.1996 passed by the Civil Judge, Basavakalyan, in Miscellaneous Appeal No. 16 of 1995, arising out of the order dated 20.6.1995 passed by the Munsiff, Basavakalyan in O.S.No. 22 of 1994 on IA 1 filed under Order 39, Rules 1 and 2 of the Code of Civil Procedure. 2. The trial Court on the basis of the revenue record entries opined that the Plaintiff (revision Petitioner herein) was in possession of the suit land and granted temporary injunction. An appeal having been preferred by the Defendants before the appellate court, the Civil Judge has allowed the appeal and set aside the order of the trial Court made on 20.6.1995 taking the view that the trial Court did not taken into consideration the sale deed dated 19.1.1976 which was executed by the Plaintiff's father and his uncle. The lower appellate court opined that the boundaries of the land sold under a registered sale deed dated 19.1.1976 show that Defendant-1 appears to have purchased the land bearing Survey No. 144/7 from the Plaintiff and another. It further opined that the boundaries of the land shown in the sale deed deal with Survey No. 144/7. The lower appellate court opined that the trial court acted arbitrarily in not considering the sale deed and entirely relied on the entries in the record of rights of the suit land. It also opined that due to incorrect numbers given in the sale deed, revenue entries in the name of Defendant-1 came to be wrongly mentioned. The lower appellate court further observed that it is a well established principle of law that where description of the property by boundaries of the land and survey number of the land and there is conflict, then the property described by the boundaries to prevail. 3. Feeling aggrieved of the said judgment and order of the lower appellate court, the Plaintiff has come up before this Court in revision. 4. I have heard Sri. Manikappa Patil, learned Counsel for the revision Petitioner and Sri. K. Appa Rao, learned Counsel for the Respondent. 5. The learned Counsel for the revision Petitioner contended that the court below relying on the principle that where there is conflict in description of the property viz., description by boundaries and by number description of area the former's to prevail. Manikappa Patil, learned Counsel for the revision Petitioner and Sri. K. Appa Rao, learned Counsel for the Respondent. 5. The learned Counsel for the revision Petitioner contended that the court below relying on the principle that where there is conflict in description of the property viz., description by boundaries and by number description of area the former's to prevail. The learned Counsel contended that the court below erred in law as it is contrary to the law laid down by this Court. I am unable to accept this contention. In the case of Sheodhyan Singh and Others Vs. Musammat Sanichara Kuer and Others, AIR 1963 SC 1879 , there was misdescription and identity of the property sold was well established. The khata number and the boundaries of the property sold and Plot No. 160 tallies. Their Lordships opined after having referred to a decision in Gossain Das Kundu and Ors. Vs. Mrittunjoy Agnan Sardar and Ors. (18 CLJ 541), in which it has been laid down that where there was conflict in the description of the property sold by boundaries and by the areas the description by the boundaries will prevail over the description by the boundaries will prevail over the description by area held in that case before them. As the land tally with the boundaries and not with number the description of the property by boundaries to prevail. This principle appears to have been adopted by the learned Civil Judge in deciding the appeal. I may mention here that the real question will have to be finally decided at the trial of the suit. So the observations of the lower appellate court or whatever have been made by him will not affect nor be binding on the court below i.e., the trial Court in determining the question keeping in view of the law laid down on the subject including the decision of the Supreme Court Sheodhyan Singh and Others Vs. Musammat Sanichara Kuer and Others, AIR 1963 SC 1879 . Anyway the Court below opined that the finding having been arrived at by the trial Court after ignoring the sale deed completely suffers from arbitrariness and illegality, it had full jurisdiction to reverse the finding. In this view of the matter, in my opinion no jurisdictional error has been committed by the lower appellate Court in allowing the appeal filed by the present Respondent. 6. In this view of the matter, in my opinion no jurisdictional error has been committed by the lower appellate Court in allowing the appeal filed by the present Respondent. 6. The jurisdiction of this Court is confined within the frame work of Clauses (a), (b), or (c) of Section 115 of the Code of Civil Procedure, and not to any other error either in the appreciation of evidence or the like. The present revision petition does not raise a jurisdictional error so is hereby dismissed. 7. The trial Court is expected to decide the suit expeditiously as the suit is of the year 1994.