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The Province of Bengal Vs. Maulvi Md. Yusuf and anr. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1943Cal122
AppellantThe Province of Bengal
RespondentMaulvi Md. Yusuf and anr.
Cases ReferredWatcham v. Attorney General of East Africa
- .....made under section 18, land acquisition act. the question in the appeal is whether the whole of cadastral plot no. 3127 of mouza baghail or only the northern portion thereof as depicted in the plan referred to in the declaration made under section 6 of the said act has been acquired. the award made by the collector under the act is in respect of the whole of the said plot, but that fact is not of great importance, for, it is admitted by both parties, and that is also the law, that the collector cannot acquire land which is not covered by the declaration under section 6 of the act, as published in the official gazette : gajendra sahu v. secretary of state ('08) 8 c.l.j. 39 and harish chandra neogy v. secretary of state ('07) 11 c.w.n. 875. the question involved in this appeal therefore.....

R.C. Mitter, J.

1. This appeal is directed against the judgment of the Special Land Acquisition Judge passed on a reference made under Section 18, Land Acquisition Act. The question in the appeal is whether the whole of cadastral plot No. 3127 of mouza Baghail or only the northern portion thereof as depicted in the plan referred to in the declaration made under Section 6 of the said Act has been acquired. The award made by the Collector under the Act is in respect of the whole of the said plot, but that fact is not of great importance, for, it is admitted by both parties, and that is also the law, that the Collector cannot acquire land which is not covered by the declaration under Section 6 of the Act, as published in the Official Gazette : Gajendra Sahu v. Secretary of State ('08) 8 C.L.J. 39 and Harish Chandra Neogy v. Secretary of State ('07) 11 C.W.N. 875. The question involved in this appeal therefore depends upon the construction of the declaration made under Section 6 of the Act. That declaration as published in the Calcutta Gazette is Ex. 5 (11-26). It was published on 15th October 1938. The material portion of that declaration runs as follows:

It is hereby declared that for the above purpose a piece of land comprising cadastral plot No. 3127 and measuring more or less 55 of an acre is required within the aforesaid village of Baghail....

A plan of the land may be inspected in the office of the Collector of Pabna.

2. It is admitted by the claimant that cadastral plot No. 3127 covers the whole of his tenancy which was created in his favour on 24th July 1920 when he executed the kabuliat Ex. I in favour of his landlord, that he is in possession of the whole of that plot and that the boundaries of his tenanted land have not changed since the date when he took settlement. The southern boundary, which is the material boundary, of that plot is admitted to be a dahar or water channel, which is a fixed land mark. The area of plot No. 3127 as recorded in the settlement khatian is 55 acres and as measured by the commissioner is slightly in excess of that area. The plan to which reference was made in the declaration Ex. 5, however, does not comprise the whole of cadastral plot No. 3127. It excludes a small strip, the southern part of the said plot. The dispute between the parties is in respect of this small strip. That dispute depends solely upon the question as to whether by the terms of the declaration, Ex. 5, the whole of cadastral plot No. 3127 was intended to be acquired or the acquisition was to be on the basis of the plan which was then lying in the office of the Collector, to which reference was made in that declaration. The declaration follows closely the provisions of Section 6, Land Acquisition Act. That section requires a declaration to be made in respect of the particular land proposed to be acquired, and where a plan had already been made of the land, the plan is not to be published with the declaration in the official gazette but only information is to be given by that publication as to the place where the said plan can be inspected by anyone desirous of inspecting the same. In cases of acquisition, ordinarily, the plan agrees with the description of the property intended to be acquired as given in the body of the declaration but in this case the plan does not include the whole of dag No. 3127. If the plan be not taken into account, the meaning of the declaration would be unambiguous. What was proposed to be acquired was 'a piece of land comprising cadastral plot No. 3127 and measuring more or less 55 of an acre'. The area by itself is an indeterminate factor, for that area was approximately stated. The word 'comprising' however makes the position clear. It means 'enveloping,' 'including the whole'. The text of the declaration, Ex. 5 is that the whole of cadastral plot No. 3127 was proposed for acquisition. The question therefore is whether the plan has a restricting effect or whether it has the effect of only elucidating the text. In the former case the effect would be that only so much of plot No. 3127 as is covered by the plan, and no more, would be affected by the declaration under Section 6 of the Act, and that much only could be legally acquired. In the latter contingency the plan would have to be disregarded, and the legality of the acquisition would have to be judged by the text of the declaration, which in this case includes the whole of cadastral plot No. 3127 of mouza Baghail.

3. The learned advocate for the respondent Mr. Amaresh Chandra Roy, who has shown great industry, learning and ability in arguing the ease, for which we expressed our appreciation at the close of his argument, has placed before us a number of decisions bearing upon the construction of deeds, mostly leases, and we have ourselves looked into many decisions not cited at the Bar. In our judgment the principles laid down in those decisions have an important bearing on the questions before us. We accordingly proceed to discuss the principles formulated in those decisions. The first and fundamental principle is the principle of 'falsa demonstratio non nocet.' That principle was stated in Roe v. Vernon & Vyse (1804) 5 East. 51 in the following language:

If there be a description of the property sufficient to render certain what is intended, the addition of a wrong name, or of an erroneous statement as to quantity, occupancy, locality, or an erroneous enumeration of particulars will have no effect.

4. In 1833 Parke J., formulated the principle thus:

Now the rule is clearly settled, that when there is a sufficient description set forth of premises by giving the particular name of a close, or otherwise, we may reject a false demonstration : but if the premises be described in general terms and a particular description be added the latter controls the former : Doe d Smith v. Galloway (1804) 5 East 51 at page 51.

5. In 1843 Baron Parke formulated the rule thus:

As soon as there is an adequate and sufficient definition with convenient certainty of what is intended to pass by a deed, any subsequent erroneous addition will not vitiate it : Llewellyn v. Earl of Jersey (1843) 11 M. & W. 183.

6. The principle thus formulated in the abstract is definite but its application to some concrete cases is difficult. In all cases the following elements must be ascertained from the document, where the different parts of the description of the parcel do not agree : (1) which part of the document adequately defines the subject intended to pass, and (2) which part thereof contains the erroneous description of the subject. In comparatively simple cases the application of the principle would not be difficult. Thus, where the parcels are described by divers special descriptions and nothing exists which satisfies all the descriptions but something exists which satisfies some or one of them and that is described with sufficient certainty, the other or others may be disregarded. As for instance where a named close or a close within certain boundaries is conveyed with the description that it is in the occupation of A and no part of it was in occupation of A the phrase 'in the occupation of A' would be disregarded and the close identified either by name or boundaries, as the case may be, would pass. But if in the case only a part was in the occupation of A it may be a matter for consideration whether only that part of the close which was in the occupation of A would pass. That was the type in Doe d Smith v. Galloway (1804) 5 East 51. The phrase 'now in the occupation of Richard Smallbones' was held to have no restricting effect in the case on a consideration of the texture of the whole sentence containing the description of the parcel demised. One rule, however, was formulated in that case namely that the legal maxim 'specialty, generalibus derogant' applies to the identification of parcels sought to be conveyed by an instrument.

7. Cases have occurred in which the parcel as defined by boundaries or as defined in the plan did not tally with the area stated in the instrument. There the definition as made by boundaries or as given in the plan prevailed, for that was the only definite description, as the statement of area by itself would be indefinite in locating the parcel. The type of cases which have a bearing on the case before us is where the definition by boundaries or by a definite name does not agree with the plan annexed to the instrument. To have any effect the plan must be incorporated in the conveyance. It is not sufficient that the plan is merely annexed to the instrument : Wyse v. Leahy (1875) Ir. 9 C.L.R. 384. Where, however, the plan is so incorporated, it is an important criterion, but it cannot be said as a rule of construction that in every case the delineation of the parcel as made in the plan would overrule the delineation according to boundaries as stated in the instrument, if the boundaries are certain and definite and vice versa. This was laid down by Coleridge J. in Brain v. Harris (1855) 156 E.R. 710 at p. 717. In Willis v. Watney (1882) 51 L.J. Ch. 181 the conveyance was of

the capital messuage or mansion house called Cardigan House, and all outbuildings and yards usually occupied therewith...delineated on the plan annexed to these presents, and thereon coloured green and pink and the paths brown.

8. The question was whether a stable yard passed. It was on the site plan, but that portion was not coloured green or pink, only a black line was drawn across it. It was held that notwithstanding the fact that it was not coloured green or pink it passed to the purchaser, as that stable yard was usually occupied with the said mansion house. In a very old case Wrostesley v. Adams (1558) 1 Plowd. 187 at p. 294 the principle of construction was stated thus:

And therefore there is a diversity where a certainty is added to a thing that is uncertain, and where to a thing certain. For if I release all my right in all my lands in Dale, which I have by des-cent on the part of my father and I have lands in Dale by descent on the part of my mother, but no lands by descent on the part of my father...then the release is void. And so the words of the certainty, viz., to which I have by descent on the part of my father, being added to the general words which were uncertain, (e.g., all lands in Dale), are of effect. But if the release had been in Whiteacre, in Dale, which I have by descent on the part of my father, and I had it not by descent on the part of my father, but otherwise, the release is good,...for the thing was certainly expressed by the first words, in which the addition of another certainty is not necessary but superfluous, and therefore he shall not there take an averment upon a thing, which is of no effect, be the same true or false.

9. The substantial rule is no doubt as in all English precedents mixed up with old technical rules of pleading but the rule itself in our judgment is a sound one and ought to guide us in interpreting documents of the nature which we have before us. That rule in its substantial form was applied by the Privy Council in Horn v. Struben (1902) 1902 A.C. 454. There a farm had been granted in the early part of the 19th century on 'loan lease.' Its name had acquired a reputation as to its extent. Under the proclamation of 6th August 1843, all the lands held on 'loan lease tenure' could be granted in perpetual tenure at a quit rent. In 1843 that farm was converted to a perpetual tenure at a quit rent. The description of the parcel in the grant was in the following terms:

A piece of land containing 2520 morgens situate in the division of Stallenbosch Field Cornetcy of Hottentots Holland being the loan place of Kogel Baay or Langgerzocht extending west to the seashore, south, south-east and east to the mountains, and north to the Steenbrazen River, as will further appear by the diagram prepared by the surveyor.

10. The diagram was attached to the instrument of grant. The respondent who acquired the farm by a subsequent purchase sued the Surveyor-General of the Colony of Good Hope and the Secretary of Agriculture in the Colonial Government for declaration of his title to all lands up to the sea shore and the river. The diagram did not show the western boundary extending up to the high water mark of the sea but further inland and the northern boundary did not coincide with the river bank. The Crown contended that the plaintiff would be entitled to claim only according to the diagram. The dispute between the parties was accordingly with regard to the western and northern boundaries. The diagram supported the Crown but the text supported the plaintiff. Lord Robertson first observed that the area given in the grant would not tally either with the plaintiff's or the defendants' case but that it would be approximate more to the plaintiff's case. Dealing with the western boundary he observed thus:

Now as a matter of construction, this is merely an appeal to the diagram for further elucidation of the text and not a subordination of the text to the diagram. If in a matter not requiring elucidation the diagram is repugnant to the text, this merely shows (what in the present instance is abundantly proved by other circumstances) that the diagram is not exact, and affords only a rough delineation of the farm.

11. He then went to show in what respect the diagram was inaccurate. The fact that the diagram was inaccurate was introduced parenthetically in the above passage only to end additional weight in that particular case to what the general rule of construction led to. The case in Lodna Colliery Co. Ltd. v. Bepin Behary Bose ('20) 7 A.I.R. 1920 Pat. 383 does not lay down any new rule, which we have not taken into consideration, and is in no way inconsistent with the view we are taking. Keeping in view the principles of construction which we have discussed above, we are of opinion that the plan to which reference had been made in the declaration (EX. 5) cannot restrict the operation of the acquisition to only such portion of cadastral plot No. 3127 as would be covered by the said plan. The plan is admittedly inaccurate in the sense that it does not depict the whole of the said plot. Section 6, Land Acquisition Act, requires the land proposed to be acquired to be specified but it does not require a plan to be prepared at that stage and made a part of the notification. It only says that, where a plan had already been prepared at that stage, information should be given in the notification as to the place where the plan is lying. The declaration (Ex. 5) clearly states that the whole of cadastral plot No. 3127 was to be acquired. That plot had a definite location, for, in the locality, there are natural boundary marks, hedges, rows of trees and a water channel. The southern boundary which if the only boundary material to the controversy is clearly defined in the locality being a dahar or natural water channel. In these circumstances we hold that the plan can only be referred to for elucidation, where elucidation is necessary, but cannot subordinate the text of the declaration. We accordingly hold that the whole of cadastral plot No. 3127 of village Baghail has been validly acquired. In this view of the matter it is not necessary to consider another line of cases of which Watcham v. Attorney General of East Africa (1919) 1919 A.C. 533 is the leading authority. If Ex. 5 had been ambiguous, contemporaneous evidence and evidence of conduct would have been admissible. That evidence conclusively establishes that the intention was to acquire the whole of cadastral plot No. 3127.

12. The appeal is accordingly allowed, but we think that in the circumstances of the case the parties should bear their respective costs throughout. The cross-objection was not pressed. It is dismissed but we make no order as to costs.

Khundkar, J.

13. I agree.

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