Skip to content


Nagendra Bala Devi, Wife of Saroj Nath Bagchi Vs. Baidyanath Chakravarty - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1938Cal225
AppellantNagendra Bala Devi, Wife of Saroj Nath Bagchi
RespondentBaidyanath Chakravarty
Cases ReferredMellor v. Walmesley
Excerpt:
- .....alongside the eastern boundary of plot a as already stated but lying more towards the north. baidyanath's case is that plot b is really limited on its southern and eastern sides by the walls of the kitchen and that nagendra bala has by projecting the southern and eastern cornices of her two-storeyed building on this plot beyond these limits encroached on his land. schedule ga of his plaint shows this alleged encroachment. he also complains of the opening of certain windows on the east on the first floor of the two-storeyed building at plot b. as regards plot c he says that it is continuous with plot b going from south to north at right angles to its northern boundary and as already stated alongside the eastern boundary of plot a. it is common case that nagendra bala's predecessor-.....
Judgment:

Biswas, J.

1. These two appeals arise out of two connected suits which were heard together and are governed by the same judgments. The plaintiff in the one was defendant in the other. To avoid con. fusion I shall refer to the parties by their names. The earlier suit (Title Suit 1148 of 1933) was by Baidyanath Chakrabarty and has given rise to appeal from Appellate Decree No. 1426 of 1936, and the other suit (Title Suit 1538 of 1933) which was filed about ten months later, was by Nagendra Bala and corresponds to appeal from Appellate Decree No. 1427 of 1936. Nagendra Bala lost both the suits in the Courts below. Hence these two appeals by her. There are three plots of land involved in the present dispute which I shall refer to as plots A, B and C. Plot A is dag No. 101 of the last Howrah Town Survey of 1914-15. It is admitted that Nagendra Bala is the present owner of all the three plots having acquired them by purchase under two conveyances both bearing the same date 24th November 1932. The question at issue between the parties is substantially one as to the extent of plots B and C which passed under these documents. Nagendra Bala's case is that these two plots are of the following dimensions:

Plot B-14ft. east to west by 7ft. northto south.Plot C-12ft. north to south by lft.east to west.

2. Plot B is to the south of plot A and adjoins its southern boundary, east to west, from the eastern extremity of it, while plot C is contiguous to plot A and adjoins its eastern boundary. It is said that according to these dimensions, plot B would extend on the south about six inches beyond the existing pucca wall of a kitchen standing on the plot and on the east about 15 inches beyond the wall of the same kitchen on that side. As to the plot C, it is said to be disconnected with plot B being a detached piece of land running alongside the eastern boundary of plot A as already stated but lying more towards the north. Baidyanath's case is that plot B is really limited on its southern and eastern sides by the walls of the kitchen and that Nagendra Bala has by projecting the southern and eastern cornices of her two-storeyed building on this plot beyond these limits encroached on his land. Schedule Ga of his plaint shows this alleged encroachment. He also complains of the opening of certain windows on the east on the first floor of the two-storeyed building at plot B. As regards plot C he says that it is continuous with plot B going from south to north at right angles to its northern boundary and as already stated alongside the eastern boundary of plot A. It is common case that Nagendra Bala's predecessor- in- interest, Sm. Such aruhashini opened a door along the eastern boundary of plot A at a point 'nya' shown in the sketch map annexed to the plaint in Nagendra Bala's suit which Baidyanath is said to have closed up. According to Nagendra Bala this door is outside plot C while according to Baidyanath it would be inside this plot. On the judgments of the Courts below and on the arguments of both sides before me, it seems that the question in controversy will have to be determined by reference to the documents. It is necessary therefore to examine them.

3. We need not go further back than 1910. On the 29th June of that year, one Sm. Sucharuhashini purchased plot A from some Burmans. This is not disputed. The sale deed is Ex. E and its importance lies in the fact that a plan is annexed to it showing the existence of pucca walls on the eastern and southern boundaries of the land sold. A little over 3 years later, on 28th August 1913, Sm. Suoharuhashini took a 12 years' lease of the two adjoining plots B and C from Baidya Nath's father, Kedar Nath Chakrabarty. The lease is a registered instrument, Ex. C, and it is a very important document in the case, being really the sheet anchor of Nagendra Bala. In this document, the two plots are described not merely by reference to boundaries, but by giving their exact dimensions as stated by Nagendra Bala in her plaint. If therefore at the date of the lease, the eastern and southern boundaries of plot A were fixed or capable of being definitely ascertained by reference to some prominent land marks like the pucca walls shown in the sketch map annexed to Ex. E, it would be the easiest thing to determine the outer limits of the plots which were demised by Ex. C on the south and on the east. It would be merely a question of taking a measuring tape and laying it across for the requisite distance from these fixed boundary lines.

4. It appears that Sm. Sucharuhashini did not give up the lands in plots B and C on the expiry of her lease. This led to an ejectment suit by Baidya Nath (Title Suit No. 535 of 1925) against her, and a decree for ejectment on 10th March 1927. Sm. Sucbaruhashini's interest in plot A was subsequently sold away in execution of a mortgage decree and purchased by one Haripada Dutt on 12th January 1932. On 24th November 1932, Haripada in his turn conveyed this plot to Nagendra Bala. On the same date Nagendra Bala took another conveyance from Baidya Nath in respect of the two adjoining plots B and C. This conveyance is Ex. B and is also a document of great importance in this case. This conveyance expressly recites the lease of 28th August 1913 (Ex. C) as well as the ejectment decree obtained by Baidya Nath against Sm. Sucharuhashini, and the recitals are dear enough to show that the lands conveyed were taken to be identical with the lands which were the subject matter of the lease and of the ejectment decree. No dimensions of the plots were however given in the conveyance similar to those given in the lease. At the foot of the document was appended a schedule, in which the boundaries of the lands sold were given, following the descriptions previously given in the lease. It is Nagendra Bala's contention that the dimensions, though not expressly stated, must be deemed to be incorporated in the conveyance by reason of the reference to the lease in the body of the document. It appears however that there is a rider added at the end of the schedule to this effect:

Beyond the existing walla to the east and south of the lands sold (i.e. the outer walls of the kitchen standing on plot B, there is no other land, and you (i.e. the vendee Nagendra Bala) will not be entitled to use the same,

and it is further stated that the annual rent of two annas in respect of the said lands is payable in the office of Shib Chandra Dhang, this being the annual rent also stated in the lease The question in these appeals really turns on the effect of this rider. Was it intended to out down in any way the dispositive part of the conveyance as contained in the recitals in the body of it? In other words, did the rider amount to a reservation in favour of the vendor of any strip or strips of land out of the lands previously described, that is to say, was it meant to limit the extent of the lands conveyed on the southern and eastern side by the 'existing walls', irrespective of actual dimensions? Or, on the other hand, was the rider intended merely to indicate with precision the southern and eastern boundaries on the footing that it was quite consistent with the recitals in the body of the document, and necessarily therefore consistent with the dimensions given in the previous lease referred to therein? In either case, it is to be observed, there is no dispute that according to the recitals in the body of the conveyance, the lands conveyed are the identical lands as had been demised under the lease Ex C.

5. The learned advocate for Baidya Nath frankly stated that his case was not that any reservation was intended, but that the rider was added by way of confirming the dispositive part of the conveyance. The case therefore comes under the second of the alternatives set out before. It so turns out however whatever the parties might have intended, that actual measurements disclose a repugnancy between the rider and the rest of the document. If the plots are taken to be of the dimensions stated in the lease and measurements are made from the fixed land marks being the pucca walls or remains of the walls shown in the sketch map attached to Ex E it is admitted that the plots will extend beyond the kitchen walls referred to in the rider both on the south and on the east.

6. The question is, whether in such circumstances the rider will prevail over the recitals in the body of the conveyance. In my opinion, the answer must be in the negative. On the facts stated, it is quite clear that in any view, the rider cannot be said to have correctly expressed the intention of the parties, if and in so far as it' seeks to effect a reduction of the dimensions of the plots. That being so, it must] be held that the lands which were conveyed to Nagendra Bala by Ex. B were the same as had been previously leased out under Ex. C. This conclusion would be quite in accordance with the true principle of construction of deeds in such circumstances. As Shadwell V. C. put it in In Re: Webber's Settlement (1850) 17 Sim 221 at p. 446:

The rule In construing a deed was that the first words were the controlling ones, and if therefore the second portion was inconsistent with the first, it must be disregarded.

7. To the same effect is the observation of Willes J. in Bateson v. Gosling (1872) LR 7 CP 9 at p. 12:

The rule of law is clear, that if there be two clauses or parts of a deed repugnant one to the other, the first part shall be received and the latter rejected, except there be some special reason to the contrary.

8. The repugnancy in the present case, as I have shown, turns out to be a case of misdescription in the rider : the misdescription must therefore be rejected. Reference may be made in this connexion to the case in Wilkinson v. Malin (1832) 2 Cr & J 636 at p. 649 where Lynd-hurst J. delivering the judgment of the Court said this:

By the deed of 1807, the land upon which the school house was afterwards built was conveyed, and the words of the deed of 1807 and 1827 arc the same. Looking at the two deeds, it is impossible not to say that there was an intention to convey the same property precisely in 1827 as had been conveyed in 1807. But then it is said, there is a misdescription as to the occupation. No doubt the description of the occupation is incorrect; but as the words are sufficiently large to convey the whole of the property, we think the description as to the occupation will not vitiate. This opinion may be supported on the authority of several cases.

9. As Parka B. again put it in Llewellyn v. Earl of Jersey (1843) 11 M & W 183 at p. 189:

Then the other rule of law applies, that 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 according to the maxim falsa demonstratio non nocet.

10. The rule was again laid down in this way by Romer J. in Cowen v. Truefitt Ltd. (1898) 2 Ch 551 at p. 554:

In construing a deed purporting to assure a pro-party, 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 enumeration of particulars will have no effect.

11. In another case, Mellor v. Walmesley (1904) 2 Ch 525, Swinfen Eady J. said at p. 533:

Any erroneous statement as to dimensions or quantity or any inaccuracy in the plan will not vitiate the description or have any effect.

12. It is not necessary to multiply authorities which leave the matter in no doubt, and I repeat accordingly that it is not possible to read the words in the rider to the schedule of Ex. B as in any way limiting the extent of the plots conveyed to the 'existing walls' of the kitchen on plot B as suggested therein. On the other hand, I hold that the plots must be taken to have been conveyed according to the dimensions mentioned in the lease Ex. O. Nagendra Bala's contention in these appeals must therefore prevail. It is pointed out by Mr. Chatterjee that there is no finding as to the exact extent of the lands beyond the kitchen walls on the south and the east which in the view I have taken must be regarded as comprised in Nagendrabala's conveyance Ex. B. The extent of the alleged encroachment beyond the walla was however shown by Baidya Nath in schedule 6a of his plaint, and the case appears to have been fought oat in the Courts below on the basis that this would be an encroachment only if the limits set out in the rider prevailed, not if the plots were held to have been conveyed according to the dimensions given in the lease. In that view, I do not think a remand would be justified or is necessary for a finding. It is enough to say that Baidya Nath's claim as to the alleged encroachment must fail. As already stated, Baidya Nath also complained about certain windows on the first floor of Nagendra Bala's building at plot B, but this part of the case was not pressed in the Courts below.

13. The result is that Baidya Nath'a suit, T.S. 1148 of 1933, fails in its entirety and is dismissed with costs in all the Courts. S.A. 1426 of 1936 is accordingly allowed, As regards Nagendra Bala's suit T.S. 1538 of 1933, which is the subject matter of S. A. 1427 of 1936, as a result of my decision in the other suit her claim as to the window on the ground floor in the eastern wall on plot B at point 'na' in the sketch map annexed to her plaint must succeed, and there will be a declaration of her right in respect thereof and a decree against Baidya Nath for removal of all obstruction therefrom. As to the door on the east at-point 'nya', which had been opened out by her predecessor -in-interest, Sm. Sucharuhashini, the position is this. As I have pointed out already, this door would be upon her own land in plot C, if plot C is held to be continuous with plot B and as the door was opened while Sm. Sucharuhashini was holding the land as lessee, there could be no question of her acquiring any right of way through this door over her lessor's land to the east by prescription. She could prescribe against Baidya Nath's father or Baidya Nath only if the door was opened on land other than that held by her under the lease. As to this, it appears that the learned Munsif found plots B and C were contiguous, and though the learned Subordinate Judge did not come to any express or unequivocal finding on the point, I am satisfied that ha came to no contrary finding, and that the finding of the learned Munsif is correct. It follows therefore that so far as this door is concerned, this being upon Nagendra Bala's own land in plot C, she will be entitled to keep it open but her right of way through and by way of this door to Baidya Nath's land lying to the east of plot C must fail. She will also not be entitled to project the eaves or any part of the door on Baidyanath's land. There is no finding if the door is along the boundary line between plot C and Baidya Nath's land on the east: if so, Baidya Nath would no doubt be entitled to put up a hoarding or wall on his own land to prevent egress from the door. If, on the other hand, the door is on Nagendra Bala's land some distance away from the eastern boundary of plot C he will certainly not be entitled to obstruct access through it to her land, but he will be entitled to take all reasonable steps to prevent access to his land, but without encroaching on the land of plot C. Nagendra Bala's claim to rights of way over Baidya Nath's land through this door must be and is therefore dismissed. So far as the rights of way claimed by her on the east of the kitchen in plot B are concerned, that must also fail beyond the strip which has been found to be part of her own land under Ex. B. The result is that the relief she will obtain in her suit will be limited to what has been adjudged to her in Baidyanath'a suit. The suit therefore succeeds in part, and so also S. A. 1427 of 1936. But in view of what I have stated, there will be no order as to costs in this suit or appeal: each party must bear her or his costs throughout. Leave to appeal under Section 15 of the Letters Patent is refused.

14. After further hearing the parties, I would add that the question as to the precise limits up to which the lands in plots B and C adjudged to Nagendra Bala by this judgment extend on the south or on the east is left open.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //