1. The facts are these: By a sale-deed of the 23rd December 1896 Musammat Moti Begam the plaintiff in the suit sold to Ahbab Ali the defendant in the suit a plot of land. The material portion of the sale-deed is as follows:-- 'Out of the land to the South of that house, land measuring 16 builder's yards East and West, by 12 builder's yards North and South, together with, foundations of the Southern wall and the well towards the south with a pair of doors and frame, the boundaries of which are set forth below was sold by me etc., etc..' The plaintiff on the basis of the above sale-deed brought an action against the defendant to have it declared that she sold only a portion of the plot lying to the South and measuring 16 by 12. The case of the defendant was that the entire plot within the boundaries was sold and that the specification of the area was immaterial; he further resisted the claim on the ground of equitable estoppel.
2. The Court of first instance found that there was no estoppel and constructing the sale-deed to mean that the specific area was sold gave the plaintiff a decree. The defendant appealed but the plea of estoppel was not taken in the memorandum of appeal. The lower appellate Court reversed the decree of the Court of first instance, finding that the intention of the parties was to sell whatever land was included in the boundaries. In support of this, reliance is placed on Abdul, Ghani v. Tajamb-ul-Husain A.W.N. (1883) 38. The plaintiff has preferred a second appeal and it is argued by her learned Advocate that, on a right interpretation of the sale-deed, the portion of the land lying to the South of the house measuring 16 by 12 was sold, and that the boundaries may not be regarded as perfectly certain boundaries of the property sold. In support of his contention the learned Advocate relies on the cases of Kumar Rameshar Malio v. Ram Tarak Hazra 14 C.W.N. 268 and Durga Prasad Singh v. Rajendra Narain Bagchi 37 C. 293 and on the Laws of England, Volume 3, page 138. The learned Vakil for the respondent in answering the contention of the learned Advocate for the appellant argues, that, as the boundaries given in the sale-deed are certain, the specification of the area must be deemed as a mere misdescription. He relies on Sheeb Chander Mahneeah v. Brojo Nath Aditya 14 W.R. 301, Kazee Abdul Mannah v. Barola Kant Banerji 15 W.R. 394, Baboo Pahlwansingh v. Maharajah Moheshur Buksh Singh 16 W.R. 5, Virjivandas and Madhavdas v. Mahomed Ali Khan Ibrahim Khan 5 R. 208.
3. As I read the sale-deed in question, I feel no doubt that the intention of the parties was that out of the land lying to the South of the house mentioned in the sale-deed only a portion was to be sold. The words 'out of' (minjumla) very distinctly show that it was never the intention to sell the whole area but only a portion of it. The specification 16 by 12 which follows minjumla' is another reason showing that that specific area was to be sold. Then the expression 'the four boundaries' may refer to the boundaries of the property sold or to the boundaries of the property of the entire plot.
4. Having regard to the facts that the specification of the area is made first and that the boundaries are stated afterwards, I feel no doubt that the boundaries are the boundaries of the entire plot and not of the specific area sold. The Northern boundary in the sale-deed is stated in the following terms: North wall of my (the seller's) second house and two pernalas of my roof discharging their water on this side.' The mention of the permalas discharging their water of this side, to my mind, was made to indicate that a narrow strip of land was reserved for the discharge of the water. Had it not been so, the mention of the permalas would be meaningless. I am of opinion that in the case before me, as the quantity of the land sold was exactly described and as the boundaries set forth may be bound aries of the entire plot, and not of the plot sold, the intention of the parties was to sell the specific area of land measuring 16 by 12 builder's yards. For these reasons the plaintiff is entitled to succeed. The result is, that I set aside the decree of the lower appellate Court, and restore that of the first Court.
5. The learned Vakil for the respondent, however, urges that there was no finding by the lower appellate Court of the plea of equitable estoppel. The defendant appealed to the lower appellate Court and that plea was not raised in the memorandum of appeal. I, therefore, do not allow him to raise that plea now. The contention of the learned Vakil that the 5th plea in the memorandum of appeal which is to the effect that the plaintiff's claim is wholly groundless covers this plea, is futile. That allegation is too vague to cover any specific plea.