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Raja Srimathu Muthu Vijiya Raghunatha Doraisingam Alias Gowri Vallabha thevar Avergal, Zamindar of Sivaganga, Represented by the Estate Collector Vs. Karuthan Ambalam and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1938Mad525; (1938)2MLJ490
AppellantRaja Srimathu Muthu Vijiya Raghunatha Doraisingam Alias Gowri Vallabha thevar Avergal, Zamindar of S
RespondentKaruthan Ambalam and ors.
Cases ReferredWatcham v. East Africa Protectorate
Excerpt:
- - but these general words may amount to nothing more than an unmeaning formula, and we are not satisfied that the learned subordinate judge considered the evidence with that amount of care which the importance of the case demanded. ) was a case where the boundaries were perfectly clear, three of the boundaries being the boundary lines of three different mouzas as per that, the remaining fourth boundary being the boundary of another plot granted to another person. they have laid down the further principle that even where the ambiguity was not latent but patent the same principle would apply, though without in any way conflicting with the well-established principle that where the terms of a deed are clear and unambiguous the parties, what ever their intention, in fact, may have been,.....pandrang row, j.1. this is an appeal from the decree of the subordinate judge of sivaganga dated 23rd october, 1931, in o.s. no. 10 of 1928. the plaintiff therein was the zamindar of sivaganga represented by the estate collector, sivaganga, and he sued for a declaration that only plots i, ii and iii as marked and described in sen. a to the plaint and shown in the plaint plan constitute the lands granted on cowle by him to the first defendant on 1st february, 1916, and that the lands described in schedule b of the plaint are not so included and belong to the plaintiff and that they were wrongly demarcated by the survey authorities as part of the holding of the first defendant. the plaintiff therefore prayed for a correction of the survey register and for recovery of possession of such.....
Judgment:

Pandrang Row, J.

1. This is an appeal from the decree of the Subordinate Judge of Sivaganga dated 23rd October, 1931, in O.S. No. 10 of 1928. The plaintiff therein was the Zamindar of Sivaganga represented by the Estate Collector, Sivaganga, and he sued for a declaration that only plots I, II and III as marked and described in Sen. A to the plaint and shown in the plaint plan constitute the lands granted on cowle by him to the first defendant on 1st February, 1916, and that the lands described in Schedule B of the plaint are not so included and belong to the plaintiff and that they were wrongly demarcated by the survey authorities as part of the holding of the first defendant. The plaintiff therefore prayed for a correction of the survey register and for recovery of possession of such portions of the lands in Schedule B as had been encroached upon by the defendants after removal of the structures thereon, such portions being particularly marked and shown in Schedule C of the plaint. At all material times the Zamindari was under the management of the Court of Wards and negotiations for the grant of a cowle started early in 1908 with an application by the first defendant on his own behalf and on behalf of several other ryots for the purpose of building houses for himself and the ryots. After inspection by one of the Estate Officials and measurement of the plots a sketch was prepared which was signed by the first defendant and it was ascertained that three plots measuring respectively 9-6-0, 27 and 2 kurukkams (1 kurukkam : 0-56 acre) respectively should be assigned on cowle to the ryots. It is alleged that in November, 1910, the Collector and Agent of the Court of Wards sanctioned the assignment of these plots on payment of the nasar calculated at so much per kurukkam, the rates being different for the different plots. The deed or cowle was however not executed till February, 1916. The plaintiff's case was that what was actually conveyed and intended to be conveyed was the specific area of 38 and odd kurukkams situated in three plots and not all the land that was included in the boundaries which were also mentioned in the description of the property in the cowle deed. This allegation of the plaintiff was disputed by the defendants and that forms the main controversy in the suit, namely, what was the land that was conveyed by the deed of 1916, Ex. B. The learned Subordinate Judge has decided the controversy in favour of the defendants, and the plaintiff appeals.

2. The only point that has been argued in this appeal is the point referred to above, riamely, the actual extent of land that was conveyed by the cowle deed of February, 1916. Unfortunately in this case the lower Court does not appear to have given sufficient consideration to all the evidence in the case and directed its mind to all the considerations that arise in deciding a dispute of this kind. No doubt in several places-the learned Subordinate Judge observes that on, a consideration of the entire documentary and oral evidence he has come to a certain opinion; but these general words may amount to nothing more than an unmeaning formula, and we are not satisfied that the learned Subordinate Judge considered the evidence with that amount of care which the importance of the case demanded. We have therefore had to go into all the details of the evidence ourselves and study the various plans filed in this case with some care. Before going into the details of the evidence it is perhaps desirable to say a few words on the question of law that was touched upon in the argument. A reference was made to Durga Prasad Singh v. Rajendra Narayan Bagchi (1913) 26 M.L.J. 25 : L.R. 40 IndAp 223 : I.L.R. 41 Cal. 493 (P.C.) and Bomanji Ardeshir v. Secretary of State for India on behalf of the respondents for the purpose of showing that it was not permissible to construe the cowle deed in the light of what happened before the actual deed was granted. The learned Subordinate Judge relied on Durga Prasad Singh v. Rajendra Narayan Bagchi (1913) 26 M.L.J. 25 : L.R. 40 IndAp 223 : I.L.R. 41 Cal. 493 (P.C.) in coming to the conclusion that the negotiations which led up to the grant of the cowle would not be evidence in a case where the question to be decided was the construction of the terms of the deed itself. It is however necessary to point out that Durga Prasad Singh v. Rajendra Narayan Bagch (1913) 26 M.L.J. 25 : L.R. 40 IndAp 223 : I.L.R. 41 Cal. 493 (P.C.) was a case where the boundaries were perfectly clear, three of the boundaries being the boundary lines of three different mouzas as per that, the remaining fourth boundary being the boundary of another plot granted to another person. There was thus no difficulty in that case and no dispute even as to what the exact boundaries were. No doubt in a case where the boundaries are undisputed or can be definitely ascertained, the extent which is obviously wrong according to the boundaries can be deemed to be a falsa demonstratio and therefore ignored. In the other case, Bomanji Ardeshir v. Secretary of State for India the position was indeed more clear. The question there arose whether what was granted was a yearly sum of money (Rs. 4,000) out of the two villages, Juhu and Vile Parla in the neighbourhood of Bombay, or the two villages themselves. The grant was very clear that it was in respect of the two villages named therein and it was admitted in that case that before, this deed what was being given was a money payment and it was obviously the intention of the parties to substitute the previous money payment by something else. It was therefore held that in the circumstances of the case that it was not open to the Government to rely on the previous correspondence which led up to the grant and to contend on the strength of such correspondence that what was really intended to be given was not the two villages but only a sum of money payable every year. It would therefore appear that these decisions will not give much assistance in deciding the controversy in this appeal. In construing the terms of a document it is permissible not only to look at the terms of the document but also to the surrounding circumstances with a view to discover the intention of the parties as expressed in the deed. Thus where the terms are not clear and unambiguous and there is some inconsistency between different parts of the same document the only way of solving the ambiguity, if any, is to look at the surrounding circumstances, namely, the circumstances which led to the grant, and the circumstances subsequent to the grant in order to discover whether any portion of the instrument amounts to a falsa demonstratio. The general question has been dealt within Van Diemen's Land Co. v. Table Cape Marine Board (1906) A.C. 92 and in a subsequent case Watcham v. East Africa Protectorate (1919) A.C. 533, in which the previous authorities have been reviewed. In the latter case their Lordships of the Privy Council laid down the principle that even in the case of a modern instrument in which there is a latent ambiguity evidence may be given of user to show the sense in which the parties to it used the language they have employed and their intention in executing the instrument as revealed by their language interpreted in this sense. They have laid down the further principle that even where the ambiguity was not latent but patent the same principle would apply, though without in any way conflicting with the well-established principle that where the terms of a deed are clear and unambiguous the parties, what ever their intention, in fact, may have been, on entering into it are bound by its terms, and extraneous evidence cannot be received in explanation of it.

3. In the case before us while no doubt the events which led up to the grant which is said to have been made in 1910 though not evidenced by any deed would appear to show that the intention of the parties was that only 38 and odd kurukkams of land as delineated in the plan Ex. U were to be granted to the first defendant and the other ryots, nevertheless there is not sufficient evidence to show that what was actually intended to be granted by the deed of February, 1916, was only what was intended to be granted in 1910. Jo doubt the deed recites a letter of the agent of the Court of Wards of 8th November, 1910; but that letter has not been produced by the plaintiff though referred to in the plaint and also referred to in the first defendant's written statement. It was the first defendant's contention in the written statement that even according to what was granted to him in 1910 he was entitled to all the lands that are now claimed by him. It is possible that during this interval - between November, 1910 and February, 1916 - something might have happened which led the plaintiff's officials to grant more than what was originally granted or intended to be granted in 1910. That this is not a mere possibility is shown by the fact that a suit had been instituted in 1914 by one Palaniappa Chetti against the present plaintiff and the first defendant in respect of the western portion of the land now claimed as part of plot I by the first defendant. It is extraordinary to find that even in the plaint the history of the events which led up to the grant shows a hiatusin more than one place. In paragraph 5 of the plaint the history is taken up to 4th May, 1908, when a sketch was prepared and statements were recorded. What happened thereafter till November, 1910, is passed over in silence. As a matter of fact this silence as to the events that took place between 1908 and 1910 is suggestive; because, during this interval what happened was that though at first there was the idea of granting a cowle to the first defendant and his fellow ryots subsequently the Court of Wards decided to sell the plots' in public auction and actually sold them in public auction and one of the purchasers therein was the plaintiff in, the suit of 1914. It i$ therefore obvious that before, the Court of Wards decided to assign the lands to the first defendant and the other ryots in November, 1910, there was this difficulty in the way of the Court of Wards in making the grant brought about by these sales in auction to certain Chetti purchasers*; and it is certainly possible that this difficulty might have led the Court of Wards to grant more than what was originally intended. In any case the order of the Collector and agent to the Court of Wards dated 8th November, 1910, has not been produced and it is impossible to say in its absence what exactly was granted or intended to be granted by that order. No satisfactory explanation is forthcoming for the omission as to why this important letter has not been produced in evidence. It is not alleged that it is not available. All that is alleged is that this omission might have been due to carelessness or a belief that it was unnecessary on the part of the legal advisers of the plaintiff in the Court below. The plea of carelessness is not, at its best, a plea entitled to much weight and when the circumstances are such that it is difficult to be certain that the plea of carelessness is not put forward in order to cover up a deliberate omission, it is impossible to overlook an important omission of this kind. It is prima facie not likely that the legal advisers of the plaintiff would have failed to perceive the importance of filing this document in evidence, which was relied on by the first defendant also in his written statement. It is certainly not open to the plaintiff-appellant in these circumstances, that is, in the absence of the letter in question, to contend that that letter conveyed exactly what was described in the plan Ex. U and no more. It may be mentioned in this connection that no application was made at the time of the filing of the appeal or subsequently for permission to file this letter or order as additional evidence. The other hiatus in the plaint refers to the interval between November, 1910 and February, 1916. During this interval the suit had been filed by one of the Chetti purchasers as mentioned already and in that suit and in the defence of that suit the present plaintiff and the present first defendant who were both defendants in that suit appear to have made common cause. It is possible therefore that this cooperation in the defence of that suit might have led the plaintiff to agree to give more than what was originally intended when the deed was actually executed in 1916. It is therefore not possible to say from a consideration of the events that led up to the grant that the intention of the parties was clearly to the effect that only the extent of 38 and odd kurukkams as noted in the original plan Ex. U was to be granted and no more. If really that was the intention nothing would have been easier than to affix the plan Ex. U or a copy of it to the grant Ex. B or to refer to that plan in describing the land that was granted. This was not done; and ho reasonable explanation for this omission is forthcoming. It is not as if the plaintiff's zamindari was not well served, for it was under the management of the Court of Wards with an officer of the I.C.S. on the spot as Estate Collector; and it is difficult to believe that those who advised the plaintiff when the deed was executed in February, 1916, would not have suggested a reference to the plan if the intention had been to grant only the plots as shown in the plan. On the contrary, there is the fact that in the cowle itself there is a specific provision as to what should happen if and when it is found that there is a greater extent included in the boundaries mentioned in the cowle. The fourth clause of the grant Ex. B runs as follows:

If it is at any time found that the ryot is in possession of larger extent that the said 38-6-0 kurukkams of land the ryots shall pay the landholder for such excess within the boundaries specified hereunder proportionate rent at the rate aforesaid, but shall make over free and unencumbered to the landholders the entire excess beyond the boundaries with damages of rent at the market rate for three faslis prior to the date of such discovery.

4. It is therefore provided in the deed as to what should happen if there were more extent found within the boundaries and without the boundaries mentioned in the deed. If the excess were within the boundaries the grantee was to enjoy the land on condition of paying rent for the excess area; if the excess were outside the boundaries he took nothing and had to hand over such excess to the grantor. This seems to indicate that the intention of the parties was that the boundaries were to be looked to for the purpose of deciding what was the land that was granted or the land to which the grantee would be entitled under the grant; in other words, Clause 4 of the deed shows that, whatever the extent of the land intended to be granted by the cowle might be, the entire extent of land within the boundaries given in the cowle was to be held by the grantee subject only to the condition that, if that extent was in excess of 38-6-0 kurukkams, rent should be paid for the area in excess; it is only if excess was found outside the boundaries or, in other words, where the grantee had encroached beyond the boundaries upon the land of the grantor the grantee was bound to hand over possession of such excess with damages to the grantor. Ex. B the grant describes the land in Clause 1 as follows:

The kudi right in the holding comprised within the boundaries hereunder mentioned in the village of Devasthanam Kattunachi, hamlet of Ayan Siruvayal Village, Tirupathur Taluk and measuring 38-6-0 kurukkams of dry lands has been assigned to the said ryot under the orders of the Collector of Ramnad and agent to the Court of Wards R.O.C. No. 639 Cor. of 1910 dated 8th November, 1910, for a consideration of Rs. 2,489-10-0 subject to an annual rent of rupee one per kurukkam.

5. The third clause provides that the

Ryot shall enjoy the said land permanently at his own will and pleasure toy using the same for agricultural, horticultural and house building purposes.

6. At this point the comment may be made that whereas 38 and odd kurukkams were originally intended to be granted for building purposes only, the cowle mentions agricultural and horticultural purposes also in addition. The boundaries are described fully in the schedule and these will be considered when we come to deal with the case relating to each of the three plots. One general observation may be made before dealing with the case as regards each of the three plots, and that is, while some of the boundaries are very clear being well-defined physical boundaries others are most uncertain and vague, and unfortunately in each of these three plots one of the boundaries and that one which matters most is undefined; for instance, in plot I the eastern boundary is described as Panni Vilundan Pallam, in other words, the pond or mire in which the pigs used to wallow; in plot II the eastern boundary which is most material is described as a single palmyra tree; in plot III the western boundary, also material, is described as an oil mill.

7. We shall now deal with the evidence relating to each of the plots. Taking plot I there is no doubt about the southern or the northern boundaries. The dispute relates to the western and the eastern boundaries. The western boundary is given in the document and as Nallam Chetti Subramaniam Chetti's cowle land. If that boundary which is well defined is acted upon there can be no doubt that first defendant must succeed in his contention as regards the western boundary; or in other words Survey No. 414 will be included in the grant. This boundary therefore is one about which there is really no doubt, because it is not argued before us that the boundary as described in the deed is not as shown in the Commissioner's plan; unless the description of the western boundary is entirely ignored so far as plot I is concerned it is impossible to accept the plaintiff's assertion that Survey No. 414 was not included in the grant. There is really no reason why the boundary should be entirely ignored simply because if that boundary is acted upon the extent of the plot would be very much more than what is mentioned in the deed. No doubt if one was certain that only a certain extent was given and no more, and that the boundaries can therefore be ignored entirely the case may be different; but that is not so in the present case. The doctrine, falsa demonstratio non nocet, can be of very little use unless one can be fairly certain that any particular demonstratio is false. Now the question is, is the demonstratio or description regarding the western boundary of plot I false? There is no reason to suppose that it is false. Both parties were perfectly aware of the fact where Subramaniam Chetti's cowle lands ended on the east and that there was kudiyiruppu the east of it. There is a reference to this in the suit of 1914 and also in the previous documents, that is, the documents previous to 1910. There is also a reference to it in a subsequent document between 1910 and 1916, that is, the statement of the first defendant, Ex. T-2. We find in the deed Ex. B which was executed in 1916 the western boundary being given deliberately as Subramaniam Chetti's cowle lands. In these circumstances it is impossible to say that the description of the boundary is false and. may be ignored. It is therefore impossible not to accept the conclusion of the Court below that the western boundary is the eastern boundary of Subramaniam Chetti's cowle land as shown in the Commissioner's plan, and that therefore Survey No. 414 must be deemed to have been included in the cowle. As regards the eastern boundary the position is different. For, in the first place,, it is not a well-defined physical feature and there is a dispute about it. As mentioned already the eastern boundary is described as a pond resorted to by pigs. Obviously this cannot be a boundary line; it may indicate at the most a small pit or depression in the ground. Secondly, it is impossible to be certain where this pit or depression was. The Commissioner's report shows that there are several pits in this locality which would answer this description; and it is not the case of the defendants that any particular pit among these alone was favoured by pigs; nor is it possible to say that it is not the pit or depression pointed out by the plaintiff which-is the most western of the pits. The learned Subordinate Judge in dealing with this question has fallen into an error as to what the Commissioner had reported about these pits. He observes that the pits pointed out to the Commissioner by the plaintiff's agents came into existence when new buildings were constructed. As a matter of fact what the Commissioner reported was that it was the pit shown by the first defendant that came into existence when new buildings were constructed; in other words the pit which was shown as the eastern boundary of the plot by the first defendant was one which came into existence after the grant of the cowle. In these circumstances we have little doubt that the learned Subordinate Judge has gone wrong in placing the eastern boundary farthest east, so as to include the whole of Section No. 415-1. We find that the eastern boundary of plot I must be the boundary as shown by the plaintiff in the Commissioner's plan which cuts Section No. 415-1 into two nearly equal halves.

8. Plot II is of larger extent. There is practically no dispute so far as the southern and western boundaries are concerned. The northern boundary has been fixed by the Court below in favour of the plaintiff. It has been found to be a cart track and a channel, the cart track being the one shown in the plans A and AA-1. On this point we see no reason to differ from the conclusion of the Court below. The boundary as described is a channel and a cart track. The question therefore is to. identify the channel and the cart track. The cart track as well as the channel have been shown one in continuation of the other in the plan Exs. A and AA-1. The channel runs roughly along the northern boundary as shown in the Commissioner's plan according to the plaintiff's case and the cart track in question is a cart track which runs from east to west almost in continuation of the channel. These have been fixed as the northern boundary of this plot by the Court below and we confirm that finding so far as that boundary is concerned. As regards the eastern boundary of this plot there is considerable difficulty because of the description of the boundary in the deed itself as a single palmyra tree (othapanai). This hardly deserves the name of a boundary line, for, it is impossible to conceive of a tree being a boundary line, and the description is so vague in view of the fact that in this waste land when it was granted there seem to have been a number of palmyra trees. The first defendant-respondent's case is that this tree is somewhere in the south-western corner of Section No. 418-2, in other words, that it is one of the three trees, the stub-ends of which have been marked on the Commissioner's plans as red dots. The plaintiff's case is that the palmyra tree was situated somewhere to the east of the road that runs through this plot and to the south of the compound of one Annamalai Chetti. It is obvious that the respondent's story cannot be true; the evidence on their side itself shows that it cannot be true. Admittedly the tree in question was cut some 15 years ago or thereabouts. The karnam examined as D.W. 1 says that it was cut 20 years ago and he says that the tree was a furlong to the east of the bund of Chinnakadalai tank. The Commissioner's plan is drawn to scale, the scale being 1 inch : 132 feet. A look at the plan would show that the tree could not be where it is now sought to be located. Even otherwise the existence of other stumps of palmyra in close proximity to this alleged single palmyra shows that it could not have been described as a single palmyra. In cross-examination he admitted that he could not say in whose punja the tree stood and further that:

It is not true that at the place where the single palmyra stood two or three stub-ends of palmyra trees are even now to be found.

9. The Commissioner's plan clearly shows that there are two or three such stub-ends close to one another at the spot mentioned. The witness's evidence therefore cannot be accepted. In these circumstances, it is impossible to say that the eastern boundary has been definitely established by the respondents. On the other hand it is not possible to say that it has been established by the plaintiff beyond doubt though there is some evidence to the effect that there was a palmyra tree to the south of Annamalai Chetti's compound mentioned above. This is a case in which the boundary fails to throw light, and the extent also. For, taking the extent alone the eastern boundary would be west of the road which cuts through the plot even as admitted by the plaintiff. It is obvious therefore that the extent cannot help to locate the eastern boundary of the plot and the description in the deed of this boundary as a single palmyra tree is of so little help that it is impossible to say what the eastern boundary was intended to be at the time the deed was executed. In this state of the evidence one can only decide by actual possession some time before or after the grant; though there is some dispute as to when the construction of some of the buildings took place, it is conceded by both sides that there are a row of buildings and compounds on the east of the plot as shown by the plaintiff. These are marked in the Commissioner's plan and as these houses and compound walls must have been in existence for several years prior to the suit, there is no other way of fixing the eastern boundary except by regarding the eastern limit of these buildings and compounds as the eastern boundary line. We accordingly fix the eastern boundary of plot II as the line connecting the cart track which forms the northern boundary with the eastern limit of the compounds in this plot and continuing onwards till it meets the southern boundary about which there is no dispute, in other words, the eastern boundary as shown in the plaint of the actual encroachments in this plot will be regarded as the eastern boundary of the plot.

10. What remains is plot III. Here the eastern and southern boundaries are not in dispute. The northern boundary also is not open to dispute because it is described as 'south of tank water-spread'. The real difficulty arises in determining what the western boundary was. This is described in the document, as mentioned already, as an oil mill. There are several oil mills in this locality. Even the oil mill pointed out by the respondents as the western boundary has another oil mill in close proximity to it, as is seen from the Commissioner's plan. Besides, it must be remembered that the oil mill cannot be regarded as a boundary line. The oil mill is really in the north-western corner and even assuming that this mill is taken as the western boundary a line joining the oil mill anywhere on the southern boundary would satisfy the description of the boundaries. This would cut into two the urani recently constructed at some considerable cost by one of the respondents. In these circumstances it is not possible to say exactly where the western boundary line should be drawn, and one has to decide only on the basis of actual occupation and possession. The western boundary will be therefore the western boundary as shown by the plaintiff and a line drawn along the south of the urani up to the limit of the adjoining survey number, and thenceforward from the point of intersection northwards along the line as shown by the defendants.

11. The decree of the lower Court will therefore be modified as indicated above. In other respects the decree is confirmed and the appeal fails. The appeal abates as against respondents 2, 4, 12, 20 and 23 and so far as they are concerned the appeal is dismissed. As the appeal succeeds only in part, and that too mainly as against the first respondent, we direct that half the costs in this appeal of the contesting respondents, one set, be paid by the appellant, and that the appellant do get half his costs of this appeal from the first respondent.


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