Judgment Chitra Venkataraman, J. 1. W.P.No.28154 of 2007 is filed by the State Bank of India against the order in M.A.No.162 of 2006 dated 08.06.2007 passed by the Debts Recovery Appellate Tribunal. The purchaser of the property has also filed W.P.No.21539 of 2007 with similar prayer. Since the facts stated in the writ petition filed by the Bank viz., in W.P.28154/2007 gives full picture about the case facts in W.P.21539/2007, it is suffice to refer the parties as stated in the writ petition filed by the Bank. 2. It is seen from the averments therein that the 7th respondent herein/a private limited company availed financial facility from the petitioner-Bank as early as in the year 1989. The property situated in No.68, Bunder Street, comprised in Survey No.11151, GT, Chennai belonging to the sixth respondent was given as a collateral security by creating equitable mortgage. Under the sale deed dated 04.03.1985, the sixth respondent had purchased this property from the 5th respondent-Gopal Naidu. On account of the default committed by the 7th respondent, a suit was filed by the Bank in C.S.No.1494 of 1992 before this Court for recovery of the defaulted amount with interest and subsequently, it was transferred to the second respondent and was numbered as T.A.No.166/1997. The claim by the Bank was allowed on 30.06.1999 and recovery certificate was issued by the third respondent-Recovery Officer. Since the Recovery certificate was not satisfied, the property was brought for the sale by the 3rd respondent on 12.06.2000, 28.01.2005 and 18.02.2004. On three occasions, for want of bidder, the auction was not successful. In the mean time, the petitioner-Bank came to know i.e., in July 2005, that i) the fourth respondent/Parthasarathi Naidu & Co., filed a suit in C.S.No.344 of 1998 before this Court, for recovery of money of a sum of Rs.3,68,480/-payable by Gopal Naidu, the 6th respondent herein; ii) it is a matter of record that pending suit there was an order of attachment made on 03.05.1988 in Application No.1534 of 1988, attaching 2nd, 3rd and 4th floors of the building iii) subsequently, the case was transferred to the City Civil Court, Chennai and taken on file as O.S.4632/96 and there was exparte decree on 18.12.1996. Thus, in respect of the decree obtained in the said suit, E.P., proceedings were taken by the 4th respondent to bring the property for sale. Thus, in respect of the decree obtained in the said suit, E.P., proceedings were taken by the 4th respondent to bring the property for sale. Taking note of this, the Bank/the petitioner herein, filed an application in E.A.Nos.3813 and 3814 of 2005 for staying the auction and releasing the property from attachment. The petitioner pointed out that the sale of the property by the said Gopal Naidu in favour of the 6th respondent was much prior to the decree. The City Civil Court granted stay of the auction proceedings. Thus the E.P., filed in 1647 of 2001 by the decree holder on the file of IX Assistant Judge, City Civil Court, Chennai was dismissed. Subsequently, the fourth respondent/plaintiff filed W.M.P.No.34109 of 2005 in W.P.No.31120 of 2005 and obtained an order of stay of further proceedings on the sale, thus, the sale by the Bank could not go on. Subsequently, in W.A.No.2310 of 2005, this Court directed the fourth respondent /plaintiff in the suit to move the Recovery Officer/third respondent for necessary relief with appropriate application. Thus, I.A.No.1/2006 in T.A.No.166 of 1997 was filed by the fourth respondent and the Debts Recovery Tribunal passed the order dated 22.02.2006 after considering the fact that the 6th respondent had purchased the entire land and the building from the 5th respondent-Gopal Naidu and that the attachment order was subsequent to the sale; thus, the claim of the fourth respondent was rejected. 3. The fourth respondent, there afterwards, filed an appeal in Appeal No.5/06 against I.A.No.1 of 2006 in T.A.No.166/97 before the Debts Recovery Tribunal, who rejected the appeal filed by the 4th respondent. In the mean time, the property was brought to sale and the 8th respondent was a successful bidder therein. Thus, 8th respondent in W.P.28154/2007 / the petitioner in W.P.21539 of 2007 was issued with sale certificate on 02.08.2006 by the second respondent/Debts Recovery Tribunal-I. As against the order of the second respondent, the 4th respondent preferred an appeal in M.A.162 of 2006 before the first respondent/Debts Recovery Appellate Tribunal. 4. On a consideration of the claims, the Debts Recovery Appellate Tribunal allowed the appeal of the 4th respondent, sustaining the attachment of the property in respect of 3rd and 4th floor and held that the creation of the mortgage in favour of the Bank was valid only in respect of ground, 1st and 2nd floor. 4. On a consideration of the claims, the Debts Recovery Appellate Tribunal allowed the appeal of the 4th respondent, sustaining the attachment of the property in respect of 3rd and 4th floor and held that the creation of the mortgage in favour of the Bank was valid only in respect of ground, 1st and 2nd floor. Consequently, the 4th respondent was held as entitled to bring the 3rd and 4th floor of the subject property for sale, for the realisation of the amount due as per the decree obtained in C.S.344 of 1988. Aggrieved by the said order, the present writ petitions have been filed by the Bank (W.P.28154/2007) and the auction purchaser (W.P.21539/2007). The auction purchaser is the 8th respondent in the writ petition filed by the Bank. 5. Considering the fact that learned counsel for the parties herein raised a serious dispute as regards the existence of the 4th and 5th floor in the building for any order of attachment to survive and since according to all counsel – viz., the Bank, the Purchaser and the decree holder, the factual position as to the existence of the floors (4th & 5th) would clear all the issues and in order to ascertain the true facts, at the request of the parties, this Court thought it fit to appoint an Advocate Commissioner to visit the property and report as to the existence of the 4th and 5th floors and the same was ordered on 04.01.2013. This Court appointed Mr. MA.P. Thangavel, Advocate of this Court, as Advocate Commissioner to visit old door No.27, New No.68, Bunder Street, Madras-1 and report as to the existence of 4th and 5th floors, which are the subject matter of the property, pursuant to the decree obtained by the 4th respondent. 6. Accordingly, in the presence of the parties, learned Advocate Commissioner visited the property and filed the report stating that the building at Old No.27, New No.68, Bunder Street @ Guruvappa Street, Chennai-1, consists of ground floor, 1st floor, 2nd floor and partially constructed with open area in 3rd floor. It is also stated that the 1st floor and the 2nd floor have built-up area of an extent of 1383 sq.ft each ; that the 3rd floor of the building consists of built-up area of 800sq.ft. It is also stated that the 1st floor and the 2nd floor have built-up area of an extent of 1383 sq.ft each ; that the 3rd floor of the building consists of built-up area of 800sq.ft. and an open area of 583 sq.ft., approximately; that the said 583 sq.ft., remains as open space on the 3rd floor; above that, there is no 4th floor in existence; it is an open terrace for around 800 sq.ft., and above the built-up area in the 3rd floor, on the 4th floor, there is a water tank built-up on 250 sq.ft and there is no 5th floor in existence. 7. In the background of the above stated facts, learned Senior counsel appearing for the purchaser/8th respondent/Writ Petitioner in W.P.21539/2007 and the learned counsel appearing for the petitioner-Bank submitted that the Appellate Tribunal had committed serious error in not taking into consideration the sale deed executed by Gopal Naidu/5th respondent in favour of Sancheti Leasing Ltd/6th respondent herein, as early as 04.03.1985, much prior to the attachment by the Civil Court and hence, the order is perverse and the order of the Tribunal rested on declaration contained in Form 1-A attached to the sale deed, which was relevant for the purpose of valuation only. He pointed out that when the sale declaration clearly pointed out that the entirety of the property and the building therein was sold and when it was not the intention of the party to retain any undivided share vis-a-vis, the 3rd floor, the Tribunal ought to have considered the intention of the parties as disclosed in the sale deed and the Schedule annexed thereto and not to decide the rights of the parties based on the declaration in Form 1-A. 8. Countering the said submissions, learned counsel appearing for the fourth respondent pointed out that merely because the sale deed does not refer to the retention of undivided share, one cannot presume that the land owner had not retained to himself any undivided share and that nothing be assured on this. In the circumstances, when the Schedule read with annexure clearly point out that the sale deed was with reference to an area of 1383 sq.ft. In the circumstances, when the Schedule read with annexure clearly point out that the sale deed was with reference to an area of 1383 sq.ft. in the ground floor and 1,383 sqft in 1st and 2nd floor and there being no mention about the 3rd floor, it stands to reason that the sale deed could be only read as relating to sale of first and second floor and nothing beyond. Thus going by the Schedule in the sale deed, no perversity could be read into the order of the Tribunal. In any event, this would be the matter for consideration before the Civil Court. 9. We do not agree with the submissions of the learned counsel appearing for the fourth respondent. It is seen from the documents placed before this Court that as early as 21.09.1981, Gopal Naidu -5th respondent herein in the writ petition filed by the Bank, created a mortgage dated 21.09.1981 in favour of (1) Sri. N.V. Padmanabhan, (2) Sri. N.V. Subramaniam, (3) Sri. N.V. Hariharan, (4) Sri. N.V. Ramakrishnan, (5) Sri. N.V. Sreenivasan and (6) Sri. N.V. Gopalakrishnan over the property situated in Bunder Street for the amount borrowed by the said Gopal Naidu. The Schedule of the property given therein referred to the building as five storeyed house and land with an extent of 1,383 sq.ft. On the sale consideration of Rs.5 Lakhs paid by the 6th respondent to the mortgager, free from encumbrances, the 6th respondent purchased the said property under sale deed dated 04.03.1985. In contrast to the description in the mortgage deed of the property having five floors, we have the sale deed executed by Gopal Naidu in favour of the sixth respondent dated 04.03.1985. In contrast to the description in the mortgage deed of the property having five floors, we have the sale deed executed by Gopal Naidu in favour of the sixth respondent dated 04.03.1985. Referring to the discharge of the loan on the mortgage created over the said property and the property is stated to be free from all encumbrances, the sale deed reads as under: "The vendor doth hereby covenant with the Purchaser that he is the sole and absolute owner of the Property described in the Schedule hereunder and that none is entitled to any right over the same and that the Vendor has absolute rights to execute this Deed of Sale in favour of the Purchaser." The Schedule to the property annexed therein is given as under:- "that piece and parcel of land together with House bearing New Door No.68, old No.27, Bunder Street, alias Guruvappa Street, G.T.Madras-1, bearing R.S.No.11151 with an extent of 1,383 sq.ft., ...on the North by House and Ground bearing Door No.69, Bunder Street, South by House and bearing Door No.67, Bunder Street, West by inhabitant's House and East by Bunder Street, situated within the Registration Sub-District of Sowcarpet and within the Registration District, North Madras." However, Form 1-A, which is a declaration on the value of the property gives description of the building and other details on the building, as follows:- "III. Extent of the site: 1,383 sq.ft. IV. Built up area: Each type of construction involved in each floor. : 1,383 sq.ft., floor : In Ground floor : R.C.C. Roof : 1,383 sq.ft. In First Floor: 1,383 sq.ft. In second floor – In Third floor:- Area of separate cargate and of construction involved if any : NIL " 10. Thus, as against the mortgage deed of 1981, executed by Gopal Naidu referring to the property as having 5 floors, the sale deed clearly refers to the existence of three floors. The deed also evidences the intention of the vendor to sell the property absolutely without retaining any part therein. Thus, as is evident from the narration in the sale deed, the said Gopal Naidu sold the entire extent of land together with house in favour of the sixth respondent. The Schedule gives the extent of the land and the built-up area. Thus, as is evident from the narration in the sale deed, the said Gopal Naidu sold the entire extent of land together with house in favour of the sixth respondent. The Schedule gives the extent of the land and the built-up area. Thus read in the context of the sale deed, the schedule and the present report by the learned Advocate Commissioner, it is evident that there is no 4th and 5th floors. Apart from this, when the said Gopal Naidu had already sold the property as early as 04.03.1985, there could be no attachment over a property, which did not belong to Gopal Naidu as on that date. Consequently, the attachment order passed by this Court in Application No.1534 of 1988 in C.S.No.314 of 1988 dated 03.05.1988 could have no consequence over the said property, which has only three floors alone, on account of the sale of the said property on 04.03.1985 in favour of the sixth respondent. 11. Leaving aside the question of the subject matter of attachment, in paragraph 8 of the Appellate Tribunal's order, it is pointed out that the building purchased under the sale deed was ground floor, 1st and 2nd floors. The sale deed Schedule showed the 3rd floor as having separate cargate and of construction involved if any as Nil. The Tribunal pointed out that the fourth respondent/decree holder was able to prove that on the date of the order of attachment, there were 2nd, 3rd and 4th floors. Thus, according to the Tribunal, while the fourth respondent/decree holder had attached 2nd, 3rd and 4th floors, the fifth respondent sold only the ground, 1st and 2nd floors; in the circumstances, the Appellate Tribunal held that the attachment order made in favour of the fourth respondent would hold good in respect of the 3rd and 4th floors, though not in respect of 2nd floor, as it had already been sold out. 12. As already pointed out, during the pendency of the writ petitions, this Court ascertained through the learned Advocate Commissioner's report that there is no 5th floor available therein and the 4th floor is only a terrace with a overhead water tank only. Thus, we can say that on physical verification, there are only three floors and the 1st and 2nd floor consisting of built up area of 1383 sq.ft. Thus, we can say that on physical verification, there are only three floors and the 1st and 2nd floor consisting of built up area of 1383 sq.ft. land and that the 3rd floor is partially built up and that the 4th floor in the terrace, there is only overhead tank. As already seen, when the sale deed dated 04.03.1985 says that the sale was in respect of the property with land in entirety and the building therein, merely because, Form 1-A description had shown only up to the 2nd floor and not the 3rd floor, it does not lead to an automatic inference that the 3rd and 4th floors were retained as an undivided share by the Gopal Naidu available for attachment by the fourth respondent The absence of reference as to the 3rd floor in Form 1-A, however, cannot go against the intention of the parties as disclosed in the sale deed for sale of the entirety of the property and built up area, which is already mentioned in the Schedule. Thus, going by the purport behind the filing of Form 1-A, which is only for the purpose of arriving at the value for stamp duty purposes, the number of floors and the extent of the property conveyed cannot be decided on the strength of Form 1-A. Further, Form 1-A cannot say anything about the intention of the parties which is, in fact, spoken to only in the sale deed and the property specifically described in the Schedule therein. 13. The approach of the Debt Recovery Appellate Tribunal in ignoring the sale deed conveying the property in entirety as stated in the Schedule and placing emphasis on Form 1-A, thus has resulted in a wrong order being made recognising the right of the Decree-holder to attach 3rd and 4th floors. 14. Learned counsel appearing for the decree-holder placed much reliance on the mortgage deed referring to 5 floors. We do not think under what circumstances, mortgage deed contained such reference. The factual report by the learned Advocate Commissioner betray such description. 15. 14. Learned counsel appearing for the decree-holder placed much reliance on the mortgage deed referring to 5 floors. We do not think under what circumstances, mortgage deed contained such reference. The factual report by the learned Advocate Commissioner betray such description. 15. As already pointed out, the intention of the parties has to be gathered from the sale deed recitals and the description of the property in the Schedule and not from declaration in Form 1-A. When the intention of the fifth respondent was to sell the property in entirety with land and built up area, the attachment order in favour of the fourth respondent cannot be sustained. Thus, we have no hesitation in setting aside the order of the Debt Recovery Appellate Tribunal as prayed for by the Bank and the purchaser. In the result, the Writ Petitions are allowed holding that the sale in favour of the sixth respondent has to be taken as given in the sale deed and going by the factual report by the learned Advocate Commissioner, the purchaser/Writ Petitioner in W.P.21539 of 2007 has rights in respect of ground, 1st, 2nd together with 3rd floor with terrace in the 4th floor. There is no built-up area in the 4th floor, which is only a terrace and there is no 5th floor. Consequently, the order of the Appellate Tribunal stands quashed. 16. At the time of appointment of learned Advocate Commissioner, this Court directed the writ petitioner in W.P.21539 of 2007/auction purchaser to pay a sum of Rs.20,000/-as initial remuneration to the learned Advocate Commissioner. Having regard to the prompt report filed by the learned Advocate Commissioner, the writ petitioner in W.P.21539 of 2007 has agreed to pay a further sum of Rs.20,000/- (Rupees Twenty thousand only) as an additional remuneration as a full and final settlement. Accordingly, the writ petitioner in W.P.21539 of 2007 is directed to pay the said sum to the Advocate Commissioner without delay. Accordingly, W.P.Nos.21539 and 28154 of 2007 are allowed. No costs. Consequently, connected MPs are closed.