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2019 DIGILAW 2311 (KAR)

BASAVAIAH v. MADAMMA

2019-12-17

S.R.KRISHNA KUMAR

body2019
JUDGMENT : This regular second appeal is directed against the impugned judgment and decree dated 17.06.2006 passed in Regular Appeal No.24/2001 on the file of the Civil Judge (Sr.Dn.) at T.Narasipura, whereby the appeal filed by the appellants was dismissed by the lower appellate Court thereby confirming the judgment and decree dated 17.03.1994 passed in O.S.No.4/1992 by the Trial Court which had dismissed the suit for declaration and permanent injunction filed by the appellants/plaintiffs in respect of the suit schedule immovable property. 2. For the purpose of convenience, the parties are referred to by their respective rankings in the trial Court. 3. The appellants were the plaintiffs in the suit. Respondent was the sole defendant in the suit. Incidentally, the defendant is none other than the sister of the plaintiffs. 4. It was contended on behalf of the plaintiffs that the plaintiffs and defendant were children of one late Madanaika @ Kivada. It was contended that the said Madanaika @ Kivada gifted immovable property denoted in the annexed sketch as ‘ABCD’ measuring north to south 60’ and 30’ east to west and a house situated therein in favour of the defendant under registered gift deed dated 17.05.1972. It was further contended that as per the sketch, the property delineated by the letters ‘ABCDFG’ measuring north to south 100’ and east to west 60’ was belonging to said Madanaika. Out of the said total extent of property, a portion marked as ‘ABCD’ measuring 60’ x 30’ was gifted to the defendant by the said Madanaika under the aforesaid gift deed dated 17.05.1972. It was also contended that the remaining portion of the property measuring 30’ x 40’ delineated as ‘DCBGHE’ in the sketch came to be in possession of the plaintiffs who became the absolute owners in possession and enjoyment of the same. 5. It was also contended that the defendant did not have any manner of right, title and interest or possession over the suit schedule vacant site. However, pursuant to a licence said to have been issued in her favour by the Panchayath, the defendant tried to interfere with the plaintiffs’ possession and enjoyment and tried to put up construction. 5. It was also contended that the defendant did not have any manner of right, title and interest or possession over the suit schedule vacant site. However, pursuant to a licence said to have been issued in her favour by the Panchayath, the defendant tried to interfere with the plaintiffs’ possession and enjoyment and tried to put up construction. Though the Panchayath issued a notice to the defendant calling upon her not to put up construction, the defendant continued with her illegal and highhanded acts and as such, the plaintiffs were constrained to file the present suit for declaration and permanent injunction. It was also contended that the aforesaid licence granted in favour of the defendant was cancelled by the Panchayath on 25.07.1983. 6. The defendant entered appearance in the suit and filed written statement thereby disputing/denying the plaint averments. It was contended by her that under the gift deed dated 17.05.1972, her father Madanaika not only gifted the vacant site measuring 30’ east to west and 60’ north to south consisting of four ankanas house but also the entire vacant site lying towards southern side upto the site of Ananthapadmanabhaiah. It was further contended that the said site belonging to Ananthapadmanabhaiah was sold to Nagasundara Murthy, who in turn sold it to G.Nataraj. Under these circumstances, it is contended that the sketch produced by the plaintiff is a false one. It was contended that the plaintiffs do not have any manner of right, title interest or possession over the suit schedule property since the father of the defendant did not retain any site towards the southern side up to the property of Ananthapadmanabhaiah since he had gifted the entire property in favour of the defendant under the gift deed dated 17.05.1972. It was further contended that the defendant had obtained a valid licence to put up construction and that she had obtained licence in the year 1983 which was not cancelled but she could not put up construction at that point in time and subsequently, she had put up construction over the property. The defendant further denied the right, title interest or possession of the plaintiffs over the suit schedule property. The defendant further denied the right, title interest or possession of the plaintiffs over the suit schedule property. It was also specifically contended that pursuant to the gift deed dated 17.05.1972 executed by Madanaika @ Kivada in favour of the defendant, the defendant got the katha registered in her name and was paying property tax and consequently, she was the absolute owner in possession and enjoyment of the property with its southern boundary being the property belonging to Ananthapadmanabhaiah wherein petrol bunk was situated as on the date of filing the written statement. Under these circumstances, the defendant sought for dismissal of the suit. 7. Based on the above pleadings, the trial Court framed the following issues: (i) Whether the plaintiffs have proved their ownership and title over the suit vacant site? (ii) Whether the plaintiffs have further proved their possession and enjoyment of the suit vacant site? (iii) Whether the interference by the defendant is true? (iv) What order and what decree? 8. The plaintiff No.2 examined himself as P.W.1 and documentary evidence as Exs.P.1 and P.2 were produced on behalf of the plaintiff. The son of the defendant examined himself as D.W.1 and one witness Jogaiah was examined as D.W.2. Exs.D.1 to D.10 were marked on behalf of the defendant. By its impugned judgment and decree, the trial Court came to the conclusion that the property transferred in favour of the defendant under the gift deed dated 17.05.1972-Ex.P.1/D.2 was the entire property measuring 100’ north to south and 30’ east to west right upto the property belonging to Ananthapadmanabhaiah. While interpreting the said gift deed, the trial Court came to the conclusion that there were ambiguities/discrepancies in the measurements found in Ex.P.1/D.2 and as such, in view of the said ambiguities/discrepancies in the measurements found in the gift deed, the boundaries of the property transferred under the gift deed would prevail and consequently, the entire property measuring 100’ x 30’ was in possession of the defendant and that the plaintiffs did not have any right over the same. The trial Court also came to the conclusion that as per the recitals in the gift deed, the donor Madanaika had not retained any portion of the vacant site to the south of the property conveyed under the gift deed and consequently, the question of plaintiffs putting forth any claim in respect of the said property that was gifted in favour of the defendant did not arise. While coming to this conclusion, the trial Court placed reliance upon a judgment of this Court reported in (NARASIMHA SHASTRY vs. MANGESHA DEVARU) ILR 1988 KAR 554 to hold that when the actual extent of land was not clear in a document, but the boundaries were clear so as to clearly identify the property, the recitals as to the boundaries would prevail. Under these circumstances, the trial Court dismissed the suit. However, it is relevant to note that while answering Issue No(ii), the Trial Court came to the conclusion that the defendant had also not produced any evidence to establish her possession and enjoyment over the suit schedule property. 9. Aggrieved by the said judgment and decree passed by the trial Court, the plaintiffs preferred an appeal in R.A.No.24/2001 before the lower appellate Court. The lower appellate Court formulated two points for consideration: (i) Whether the appellants prove that the impugned judgment and decree passed by the trial Court is contrary to the law and facts and probabilities of the case and as such the same is liable to be interfered with? (ii) What order? 10. While answering Point No(i), the lower appellate Court confirmed the finding of the trial Court that the property transferred under the gift deed dated 17.05.1972 executed by Madanaika in favour of the defendant extended right upto the property of Ananthapadmanabhaiah on its southern side. The lower appellate Court also came to the conclusion that the property transferred under the gift deed measures east to west 30’ and north to south 100’ as per the boundaries described in the gift deed. The lower appellate Court also took into account the admission made by the plaintiff (P.W.1) in his examination-in-chief to the effect that the suit schedule property had been gifted in favour of the defendant under the gift deed dated 17.05.1972. The lower appellate Court also took into account the admission made by the plaintiff (P.W.1) in his examination-in-chief to the effect that the suit schedule property had been gifted in favour of the defendant under the gift deed dated 17.05.1972. The lower appellate Court also held that the trial Court had correctly placed reliance upon the judgment in NARASIMHA SHASTRY’s case supra and thereby confirmed the impugned judgment and decree passed by the trial Court. Consequently, the lower appellate Court dismissed the appeal filed by the plaintiffs. 11. Aggrieved by the impugned judgment and decree passed by the trial Court as well as by the lower appellate Court dismissing their suit as well as their appeal, the plaintiffs are before this Court by way of the present second appeal. On 19.12.2018, this Court formulated the following substantial question of law: “Whether the principle, “boundary prevail over measurement” is applicable to a case where the measurements are specific and property is identified within the said measurement and, the excess land over and above the measurement shown in the document could be claimed on the basis of “boundary prevail over measurement” when admittedly measurements are specific?” 12. I have heard the learned counsel for the appellants as well as the learned counsel for respondents. 13. Learned counsel for the appellants submits that both the Courts below committed a serious error of law in placing reliance on the principle that boundaries prevail over measurements thereby dismissing the suit filed by the plaintiffs. Elaborating his submissions, learned counsel for the appellants would submit that the said principle would be applicable only if there are ambiguities/discrepancies found in the measurements in the gift deed and if no such ambiguities/discrepancies are found in the measurements in the gift deed, the said principle “Boundaries prevail over Measurement” will have no application. He drew my attention to the recitals contained in the gift deed- Ex.P.1/D.2 wherein the donor Madanaika has specifically/categorically stated that what was being gifted measured east to west 30’ and north to south 60’ without there being any ambiguity/discrepancy with regard to the measurements whatsoever. He drew my attention to the recitals contained in the gift deed- Ex.P.1/D.2 wherein the donor Madanaika has specifically/categorically stated that what was being gifted measured east to west 30’ and north to south 60’ without there being any ambiguity/discrepancy with regard to the measurements whatsoever. It was therefore contended that neither the said principle emanating from Sections 93 to 97 of the Indian Evidence Act dealing with latent and patent ambiguity nor the judgment of this Court in NARASIMHA SHASTRY case supra will have any application to the facts of the instant case, in relation to the gift deed dated 17.05.1972 executed in favour of the defendant. 14. Secondly, it was contended that a perusal of the judgment of this Court in NARASIMHA SHASTRY case supra will also indicate that in the facts of the said case, there were clear ambiguities/discrepancies with regard to the extent of property conveyed under the sale deed and in that context, this Court came to the conclusion that where the sale deed mentioned specific boundaries but the recital with regard to the extent of the land were not clear, the recitals as to boundaries should prevail over unclear, discrepant and ambiguous measurements. In other words, it was contended that the said judgment was rendered in a fact situation where the actual extent or measurement of land sold under the document were not clear thereby leading to ambiguities and discrepancies with regard to the extent of land conveyed under the document and it was only if these preconditions are fulfilled that the principle, “Boundaries prevail over Measurements” can be made applicable. It was contended that in the facts of the instant case, a plain reading of the recitals of gift deed Ex.P.1/D.2 will indicate that the actual extent of land transferred under the gift deed was completely and totally clear, certain, definite, specific and without there being any ambiguity, discrepancy or inconsistency with regard to the extent or measurement and consequently, the said principle has no application to the facts of the instant case. On the other hand, he places reliance on the judgment rendered by the Bombay High Court in the case of Bhujanga Abba Patil (since deceased) through his legal heirs Smt.Bayanabai Bhujanga Patil and others, 2017 (1) Mh.L.J and the Madras High Court in Mahaboova Beevi Vs. Nataraja Chettiar, (MB 1995 (1) CTC 224). On the other hand, he places reliance on the judgment rendered by the Bombay High Court in the case of Bhujanga Abba Patil (since deceased) through his legal heirs Smt.Bayanabai Bhujanga Patil and others, 2017 (1) Mh.L.J and the Madras High Court in Mahaboova Beevi Vs. Nataraja Chettiar, (MB 1995 (1) CTC 224). He invited my attention to Para No.43 of the judgment of the Bombay High Court wherein it is clearly held that only if the area of the plot was not mentioned clearly in the document, the principle with regard to boundaries prevailing over measurements would be of some relevance and not otherwise. Similarly, the Madras High Court has observed that so long as the extent of property conveyed under a document was clear, the principle that boundaries prevail over measurements cannot be made applicable to such a document. 15. Lastly, it was contended that a reading of the gift deed at Ex.P.1/D.2 will clearly indicate that what was sought to be conveyed was only small house measuring 4 ankanas (400 square feet) situated at the extreme northern end/side of the property along with the vacant land which was immediately abutting and being part and parcel of the house. It is therefore contended that the house and abutting property transferred under the gift deed at Ex.P.1/D.2 should be understood to mean the small house measuring 400 square feet along with the adjacent/abutting vacant sites which by no means can extend the said vacant site beyond an extent of 60’ north to south particularly when it is described as a vacant space belonging to the said house which is admittedly only 400 sq.ft. situated on the extreme northern end. Under these circumstances, learned counsel submitted that the findings recorded by both the Courts below by blindly applying the principle “Boundaries prevail over Measurements” without appreciating the said principle does not apply to the facts of the instant case and the same are based on no evidence and are arbitrary, capricious, perverse and require interference at the hands of this Court. 16. Per contra, learned counsel for respondents submits that both the Courts below have come to the correct conclusion that the property conveyed in favour of the defendant under the gift deed extended right upto the property of Ananthapadmanabhaiah on its southern side. 17. 16. Per contra, learned counsel for respondents submits that both the Courts below have come to the correct conclusion that the property conveyed in favour of the defendant under the gift deed extended right upto the property of Ananthapadmanabhaiah on its southern side. 17. Learned counsel submits that a perusal of the gift deed does not indicate that what was conveyed under the gift deed was restricted to 30’ x 60’ and in the absence of any restriction put in the gift deed with regard to the extent of land conveyed under the gift deed coupled with the undisputed recitals in the boundary upto Ananthapadmanabhaiah’s house on its southern side, the only inference that can be drawn in the facts and circumstances of the case is that the intention of Madanaika was to give the entire property right upto the southern boundary comprising of Ananthapadmanabhaiah’s side. It was also contented that in the absence of any recital in the gift deed which would indicate that Madanaika had retained any property on the southern side after executing the gift deed, the gift deed includes the entire property measuring 30’ x 100’ and the same is not restricted to the property measuring 30’ x 60’ as contended by the appellants. He therefore contended that the impugned judgment and decree passed by the Courts below are correct and proper and the same do not warrant interference by this Court. 18. I have given my careful consideration to the rival submissions and perused the material on record. 19. In order to appreciate the rival contention, it is necessary to extract the recitals found in the gift deed dated 17.05.1972-Ex.P.1/D.2: xxxxxxxxxxxxxxxxxxxxxxxxxxxx 20. A perusal of the said schedule to the gift deed will indicate that in the first portion of the gift deed, the boundaries of the property are mentioned. However, in the subsequent portion of the gift deed, the recitals are very specific, categorical, unambiguous and unequivocal with regard to the measurements and extent of the property that was transferred under the gift deed. It is specifically stated in the gift deed that an extent of land measuring 30’ east to west and 60’ north to south comprising of a house measuring 400 sq.ft on the northern side together with the vacant site belonging/abutting/adjacent to the said house was the subject matter of the gift deed. It is specifically stated in the gift deed that an extent of land measuring 30’ east to west and 60’ north to south comprising of a house measuring 400 sq.ft on the northern side together with the vacant site belonging/abutting/adjacent to the said house was the subject matter of the gift deed. A perusal of the other recitals in the document will also indicate that the extent of property is not found anywhere else in document so as to create an improbability, ambiguity, discrepancy or a dichotomy with regard to the extent or measurements. The recitals regarding measurements of 30’ x 60’ are clear, specific, definite, categoric and unambiguous and in the absence of any other recital which would throw a doubt with regard to the said recital, it cannot be said that there exists any ambiguity or discrepancy with regard to the extent of land transferred under the gift deed. The donor is very categoric and clear when he declares in the gift deed that he intends to convey an extent of land measuring 30’ east to west and 60’ north to south. The fact that his intention was to convey only a site measuring 30’ east to west and 60’ north to south is also established by the subsequent recital regarding description of the property that he purported to transfer to the effect that it is a house measuring 400 sq. ft and a vacant space immediately abutting/ belonging/adjacent to the house. 21. It is inconceivable that along with the house measuring only about 400 sq.ft. situated at the northern end of property measuring north to south 100’ that the donor also intended to convey the adjacent/abutting vacant space measuring about 100’ north to south by describing the same as a property being part and parcel of the house. On the other hand, the recitals in the gift deed are very clear and unambiguous not only with regard to the extent of property measuring 60’ x 30’ purported to have been transferred under the gift deed but also with regard to the intention of the donor with regard to the extent of property he intends to transfer comprising of house and the vacant space which was abutting/adjacent and part and parcel of the house. In other words, it was only the space situated adjacent/abutting and belonging to the house which was undisputedly situated at the extreme northern end of the property measuring 30’ east to west and 100’ north to south which cannot be said to have included the entire extent of almost 100’ north to south and 30’ east to west excluding the house which undisputedly measures about 400 square feet. In fact, rather than any ambiguity being found in the gift deed at Ex.P.1/D.2 with regard to the extent of property transferred under the gift deed, the recitals in the gift deed in particular the extent of property and the nature of properties sought to be transferred make it abundantly clear that the property conveyed under the document was limited and restricted to an extent of 30’ east to west and 60’ north to south. 22. As rightly contended by the learned counsel for the appellant, the judgment of this Court in NARASIMHA SHASTRY case supra or judgments of several other Courts including the Apex Court in relation to the principle, “Boundaries prevail over Measurements” would apply only if there was any ambiguity or discrepancy with regard to the extent of the land or if the actual extent of land which was subject matter of a document was not clear. In the instant case, the recitals in the gift deed-Ex.P.1/D.2 clearly establish that there was absolutely no ambiguity/discrepancy with regard to the extent of property conveyed under the document and consequently that the principle “Boundaries prevail over Measurements” cannot be made applicable to the facts of the instant case. 23. In the instant case, the recitals in the gift deed-Ex.P.1/D.2 clearly establish that there was absolutely no ambiguity/discrepancy with regard to the extent of property conveyed under the document and consequently that the principle “Boundaries prevail over Measurements” cannot be made applicable to the facts of the instant case. 23. The legal principles underlying the principle “Boundaries prevail over Measurements” can be summarized as hereunder: (a) The principle “Boundaries prevail over Measurements” relates to construction/interpretation of deeds and documents; (b) The said principle is not an universal principle and does not have universal application in relation to all documents; (c) Applicability of the said principle depends on the facts and circumstances of the case and there is no straight-jacket formula regarding applicability of the said principle; (d) The said principle will not apply if the measurement/extent given in the document is clear, definite, specific, unambiguous and certain; (e) The said principle is applicable only if there is ambiguity or discrepancy or uncertainty with regard to measurements or extent of the property sought to be conveyed under the said deed/document; (f) The said principle is not an absolute principle and the same by itself is not sufficient to decide the controversy between the parties. (g) Before drawing an inference arising out of the said principle, it is necessary that the other material on record should also corroborate the said inference in the facts and circumstances of the case. 24. One more circumstance that would go a long way in falsifying the claim of the defendant that she was gifted the entire property measuring 30’ east to west and 100’ north to south under Ex.D.1 is the fact that except the gift deed, the defendant has not produced any other evidence to establish the actual extent of the property gifted in her favour. It was incumbent upon defendant to produce legal and acceptable evidence to establish that not withstanding the clear, definite and certain measurements found in Ex.D.1, the extent of property transferred under the gift deed measured 100’ x 30’. Unfortunately, as stated supra except the recitals in the gift deed, there is no other material produced by the defendant to show that an extent of 30’ east to west and 100’ north to south had been gifted in her favour under the gift deed. Unfortunately, as stated supra except the recitals in the gift deed, there is no other material produced by the defendant to show that an extent of 30’ east to west and 100’ north to south had been gifted in her favour under the gift deed. So also the defendant had not produced any material to establish that she has exercised right, title, interest and possession over an area in excess of 30’ x 60’ subsequent to the gift deed. In fact as rightly held by the trial Court which was not challenged by the defendant before the lower appellate Court or before this Court, the trial Court recorded a categorical finding of fact that the defendant was not in possession or enjoyment of the disputed suit schedule property while dealing with Issue No(ii) in the suit. Under these circumstances, the defendant having not placed any material to show her alleged title or possession over the suit schedule property, both the Courts below clearly misdirected itself in blindly applying the principle “Boundaries prevail over Measurements” without appreciating that so long as there no ambiguity or discrepancy with regard to the measurements in the gift deed, the said principle would have no application to the gift deed or to the facts of the instant case. 25. As rightly contended by the learned counsel for the appellant, both the judgment of the Madras High Court and Bombay High Court supra would indicate that unless there is some ambiguity either in the document or some other evidence with reference to the measurements it was only then the principle “Boundaries prevail over Measurements” would apply. 26. In view of the aforesaid discussion, I answer the substantial question of law in favour of the appellant and hold that if the extent or measurements of a property described in a deed/document is clear and unambiguous without there being any discrepancy, the principle “boundaries prevail over measurements” would not be applicable and consequently, excess land over and above the said measurements cannot be claimed on the basis of the said principle. Accordingly, the extent of property transferred in favour of the defendant under the gift deed dated 17.05.1972-Ex.P.1/D.2 is only to an extent of 30’ east to west and 60’ north to south and the same does not include the plaint schedule property. 27. Accordingly, the extent of property transferred in favour of the defendant under the gift deed dated 17.05.1972-Ex.P.1/D.2 is only to an extent of 30’ east to west and 60’ north to south and the same does not include the plaint schedule property. 27. Consequent upon my finding that the gift deed in favour of the defendant was only in respect of an area measuring 30’ east to west and 60’ north to south, it is hereby declared that the said property to the south of the suit schedule property involved in the present suit measuring 40’ north to south and 30’ east to west which is situated in between the gifted property and the property of Ananthapadmanabhaiah is a joint property of the appellants, the respondent as well as the other heirs of Madanaika and all of them are deemed to be in joint possession and enjoyment of the plaint schedule property. I have arrived at this conclusion regarding the plaint schedule property being joint property in the light of the undisputed fact that except the gift deed Ex.P.1/D.2, defendant has no other claim over the suit schedule property. 28. The next question that arises for consideration is whether the plaintiffs who have filed a suit claiming to be the absolute owners of the suit schedule properties are entitled to the relief of declaration of their title in view of my finding that the plaintiffs, defendant and other heirs of Madanaika are joint owners in joint possession of the suit schedule property. This question need not detain this Court any longer in view of the well settled principle of law that when a party approaches the Court for a higher/larger relief and the Court comes to the conclusion that he is entitled to a lower/lesser relief, the Court is entitled to mould the relief and grant a lower/lesser relief when the plaintiffs are not entitled to such higher/larger relief. In the facts of the instant case, though the plaintiffs claimed absolute title and possession over the suit schedule property, in view of the finding recorded herein before that the plaintiffs, defendant and other heirs of Madanaika are joint owners in joint possession and enjoyment of the suit schedule property, I deem it appropriate to invoke the provisions contained in order VII Rule 7 CPC as well as order 41 Rule 33 CPC and mould the relief thereby granting a decree for declaration that the plaintiffs are joint owners of the suit schedule property and in joint possession and enjoyment of the suit schedule property along with the defendant as well as the other legal heirs of Madanaika. 29. Both sides submit that the suit schedule property was a vacant site as on the date of institution of the suit and that there exists a residential house on the property as on today. Under these circumstances, the plaintiffs are entitled to constructive joint possession of the suit schedule property along with defendant and other legal heirs of Madanaika. 30. In view of the aforesaid discussion, I pass the following: ORDER (i) This Regular Second Appeal is hereby partly allowed; (ii) The Impugned judgments and decrees passed in O.S.No.4/1992 dated 17.03.1994 by the Court of the Munsiff and JMFC, T.Narasipura and R.A.No.24/2001 dated 17.06.2006 are hereby set aside; (iii) The suit filed by the appellants/plaintiffs is partly decreed; (iv) The appellants/plaintiffs are hereby declared as joint owners in joint constructive possession and enjoyment of the suit schedule property along with the respondent and other heirs of Madanaika. (v) Liberty is hereby reserved to both sides to avail such further remedies/reliefs in respect of the suit schedule property as may be available to them in accordance with law.