1. This is an appeal against the judgment of the subordinate Judge, Tenali, in O. S. No. 72 of 19S6. The plaintiff is theAppellant. The suit has been filed against an adverse claim order made in I. A. 140 of 1958 in O. S. 138 of 1952.
2. The facts relevant to this appeal may be briefly stated: The subject-matter of this suit is an extent of ac. 3-16 cents in S. Nos. 29 and 30-C of Velicherla Agraharam. The said extent was attached prior to judgment in O. S. 138 of 1952 by defendants 1 and 2 as the property of the 3rd defendant, Kamepalli Kotaiah. That was a suit for money alleged to be due from the 3rd defendant. The suit was decreed and in execution of the said decree defendants 1 and 2 brought the land to sale and purchased the same in Court auction for Rs. 6,030 on 10-1-1935. It is the case of the auction purchasers that they had taken possession through Court. I have to -state in this context that the record of the original attachment and the sale certificate were not exhibited. The said Kamepalli Kotaiah originally owned in the said Veilcherla Agraharam, ac. 3-62 cents bearing S. No. 28, ac. 6-60 cents bearing S. No. 29 and ac. 4-28 cents bearing S. No. 30-C as per Ex. A-3 sale-deed. He had purchased the said land from one Korra Sriramulu by and under a registered sale-deed Ex. A-3, dated 22-8-1941. The total extent of the lands as recited in the sale-deed is ac. 14-50 cents. The said Kamepalli Kotaiah, the 3rd defendant, suffered a money decree in O. S. 55 of 1947 on the file of the District Munsif's Court, Tenali. His lands were sold in Court auction by the decree-holder. One Lanka Kanakaiah was the Court auction-purchaser. The said Lanka Kanakaiah obtained a sale certificate for the lands purchased by him in Court auction, Ex. A-1, dated 16-10-1951 and obtained delivery through Court under delivery receipt, Ex. A-2, dated 15-12-1951. In the sale certificate Ex. A-1, the schedule of properly is noted in area as ac. 12-91 cents and as forming one plot within specified boundaries:
West: Railway line.
North: Land of Nanami Punniah.
East; Irrigation channel.
South: Jonnalagadda people,The delivery receipt Ex. A-2 recited that LankaKanakaiah was put in possession of the landwithin the boundaries specified after vacatingthe judgment-debtor. It was also mentionedthere that the land formed one plot.
3. The said Lanka Kanakaiah sold away portions of the land under Ex. A-5, dated 6-11-1952. Ex. A-7, dated 6-11-1952 and Ex. A-4, dated 4-12-1952. The extents sold and the vendees were as follows: Under Ex. A-5, an extent of ac. 5-96^ cents was sold in favour of one Mopparaju Kotaiah and under Ex. A-7 an extent of ac. 3-16 cents was sold to one Kurra Hanumalah (P. W. 1) and under Ex. A-4 an extent of ac. 5-98 cents was sold to the plaintiff. It is seen that the total extent sold under these sale-deeds is an area of ac. 15-10 1/2 cents. It may at once be noticed that as against an extent of ac. 12-91 cents purchased at the Court auction by Lanka Kanakalab, he sold an extent of ac. 15-10 1/2 cents. It is said in evidence that the extent comprised within the boundaries recited in the sale certificate was about ac. 15-00. That is the evidence of P.W. 2 who attestedthe delivery receipt Ex. A-2. The question therefore, arose whether the area comprised within the boundaries prevailed over the areaspecified.
4. While so a day before Ex. A-4, dated 4-12-1952, i.e., on 3-12-1952, the defendants in [he suit out of which this appeal arises attached an undivided extent of ac. 3-36 cents in S. Nos. 20 and 30-C as belonging to the 3rd defendant, Kamepalli Kotaiah, (the original owner) on file assumption that the same was not sold in the Court auction held in execution of the decree in O. S. 55 of 1947 on the file of the District Munsif's Court, Tenali. It is said that defendants 1 and 2 brought the said extent to sale in execution of the decree obtained by them in O. S. 138 of 1952 and purchased the same for Rs. 6,030 on 10-1-1955 in Court auction and obtained possession through Court. It may be recalled that the sale certificate or the delivery receipt are not exhibited in the case. The plaintiff preferred a claim petition against the attachment, I. A. 140 of 1953 in O. S. No. 138 of 1952, and the same was dismissed. The suit out of which this appeal arises was, therefore, laid to vacate that adverse order.
5. It would appear from the judgment of the Court below that the matter was decided on the question whether Lanka Kanakaiah had purchased all the extent specified within the boundaries, which was about ac. 15-00 or that he had only a right to ac. 12-91 cents specified as the area specified in the sale certificate. It was obviously supposed that if the boundaries prevailed over the area, the plaintiff acquired title to the land sold to him under Ex. A-1, dated 1-12-1952. The learned Subordinate Judge was of the view that the area specified in the sale certificate prevailed, and so the plaintiff bad no right to the property attached and sold in Court auction to defendants 1 and 2, and dismissed the suit.
6. The question raised before me is that the learned Subordinate Judge was wrong in the view that he had taken and that whether in a private sale or in a Court sale the area within the boundaries specified prevailed over the area on the application of the principle of demonstratio falsa non nocat (false description does not vitiate). It is settled law that that is the view taken in a private sale; whether or not it equally applies to Court sales is a live question.
7. Sri Sastry argued that there was no difference; and that the rule equally applied to the sale certificates issued by the Court and he cited a Bench decision of the Madras High Court; Subbayya Chakilivan v. Muttiah Goundan, 78 Ind Cas 414 : (AIR 1924 Mad 493). In the said case the question was directly raised before the Bench as to what exactly was the land purchased in Court auction which described the land as lying within specific boundaries and by extent when there was variation between the two. In the course of the judgment, the learned Judges observed that the rule of interpretation was that boundaries must prevail as against the measurements. The learned Judges also observed that there was no reason to suppose that, when the judgment-creditor was putting up the property for sale in execution of his money decree, he was reserving any portion of the property to be left to his judgment-debtor and settling only a portion of the property belonging to him and that the property was a single property forming one block on the Avanasi Road. The observations, further to the statement of the rule, have impact only as the probabilities of a case; but in unmistakable terms the Bench has expressed that the rule in the interpretation of a document was that boundaries prevailed as against the measurements. It is clear from the observations of the Bench that it was the rule of interpretation of a document. The matter should rest only on the application of the rule and nothing more.
8. But it has also been ruled by the Courts that in the matter of interpretation of documents, Sections 95 and 97 of the Indian Evidence Act embody important exceptions to the general rule laid down in Section 91 of the Indian Evidence Act that when the terms of a contract have been reduced to writing, no evidence shall be given in proof of the terms of the contract except the document itself (or secondary evidence of its contents in certain cases). The illustration to Section 95 shows that if A sells to B 'my house in Calcutta', and if A has no house in Calcutta but has a house in Howrah, of which B has been in possession since the execution of the deed, these facts may be proved to show that the deed related to the house in Howrah. So the illustration to Section 97 shows that if A agrees to sell to B 'my land at X in the occupation of Y' and A has land at X but not in the occupation of Y, and has land in the occupation of Y but it is not at X, evidence may be given to show which was intended to be sold. Another common case is where land within certain boundaries is sold and is wrongly described as containing a certain area, the error in area is regarded as a mere misdescription and does not vitiate the deed. The maxim demonstrate falsa non nocet applies. Vide the decision of the Division Bench: Karuppa Goundan v. Periathambi Goundan, (1907) ILR 30 Mad 397 at p. 399. That is to say, when there is seeming inconsistency as between boundaries and the area stated in an instrument, it is permissible to have recourse to extrinsic evidence and evidence of user by acts of parties, for the purpose of gathering the real intention of the parties to the instrument. That was the view taken by a Bench in Shailendranath Mitra v. Girijabhushan Mukherji, ILR 58 Cal 686: (AIR 1931 Cal 596). That is to say, the real intention of the parties has to be gathered not merely from what ex facie is set out in the document in question but also from extrinsic evidence of user, that is to say, the evidence as to how much was taken delivery of by the auction purchaser, how much was in his actual possession and enjoyment and how much, if any, was in the possession of the original owner against whom the decree-holders sought to levy execution.
8a. Sri Dasaratharamaiah lot the respondents has submitted that the learned trial Judge has not addressed himself to this aspect of thecase and that he might be given an opportunity of adducing extrinsic evidence bearing on the question of interpretation of the document. He has relied on a judgment of Varadachariar, J. in T. Gangaramayya v. B. Ramamurthi, (1934 Mad WN 937) where the learned Judge observed that in cases in which a marked divergence between the extent given and the area comprised within the boundaries given arises, it is really the equitable principles which will govern a claim for rectification of the document that should be applied. That was also a case where such discrepancy arose in a sale certificate. The learned Judge observed at p. 939 thus:
'The lower Courts have not dealt with the case from this point of view of considering whether it will be equitable in the circumstances to regard the sale as comprising the full extent of 3 acres 94 cents apparently because both parties put forward extreme contentions and the Courts below dealt with the matter as if it depended upon the question as to whether the boundaries or the extents stated should be held to prevail. I would, therefore, set aside the decrees of both the lower Courts and send the case back to the Court of first instance to consider the question in the light of the above observations after giving the parties an opportunity to adduce such further evidence as they may think necessary from the point of view above indicated.'
9. Sri Dasaradharamaiah contended that the observations made by the learned Judge apply to the circumstances of the present case. I am inclined to agree with the said submission. The correct view to take is that even in the case of sale certificates in the first instance the area within the boundaries must be held toprevail over the extents. But under Sections 95 and 97 of the Indian Evidence Act, the parties could lead extrinsic evidence to show what was the true state of affairs, that is to say, whether the whole land lying within the boundaries described was taken possession of and enjoyed in fact or only the extent specified was taken possession of and enjoyed.
10. The matter will, therefore, go back to the trial Court for receiving relevant extrinsic evidence in the matter of construction of the recitals of the document and for a fresh disposal in the light of the observations made above.
11. In the result, the appeal is allowed. The judgment of the learned Subordinate Judge is set aside and the matter is remanded for fresh disposal according to law and in the light of the observations. The parties are at liberty to adduce relevant evidence. The court-fee paid on the memorandum of appeal will be refunded. Costs of this appeal will abide the result.