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Description by boundaries would prevail over all other descriptions in a property dispute : Karnataka High Court

True construction of a document is seen when the actual intention of the parties is made clear through it. The High Court bench consisting of J. S. Sujatha and J. Sachin Shankar Magadum set aside the Trial Court order regarding a property dispute in the matter of Dr. Jayasheela Venu & Ors. v. A. J. F. D’Souza & Ors. [R.F.A. No. 1225 of 2011 (DEC/INJ)].

Mrs. Rose D’Souza, who is the mother of the original defendant, was the absolute owner of a property to which the disputed land is attached. She secured a plan layout which was approved by the Bengaluru City Corporation which included a residential site which was the subject matter of the suit. Later, this site was conveyed to her son and daughter-in-law. Subsequently, the vendees sold the site to the plaintiffs who were minors then and the possession was also delivered. The plaintiffs, in the original suit, contended that the roads attached to the site sold and mentioned as boundaries were private roads and provided for benefit and convenience of all occupants of the sites. In the plaint, it was specifically stated that the 20ft. wide road was an internal approach road leading to the main site. They contended that since the date of the purchase, they had been enjoying the site as its absolute owners and were in uninterrupted possession and enjoyment over the disputed portion. Immediately after the purchase, the plaintiffs enclosed the road with a barbed wire fence, which the defendants allegedly tried to remove, due to which the plaintiffs were compelled to file a suit for injunction.

The court then granted temporary injunction, restraining the defendants from interfering with the peaceful possession and enjoyment of plaintiffs over the suit schedule property. The plaintiffs also apprehended encroachment from the defendants and hence, built a compound wall over the disputed property. The defendants contended that the plaintiffs have misused the court orders and are virtually in illegal possession of the disputed property. Further they specifically contended that the present suit was not maintainable since the plaintiffs were claiming title and right in respect of part of the property not belonging to them and the claim made is in excess of the extent recited in their title deed. The trial court dismissed the suit filed by the plaintiffs holding that they had failed to establish their right, title and interest over the compound wall and the disputed property and dismissed the suit. Hence, the present appeal was filed in the High Court.

The High Court framed various issued and laid the down general principles such as “It is trite law that if there is a discrepancy between the two descriptions given in respect of the immovable property, the leading description should be accepted”. The HC formulated that “If the vendor intends to sell a site which is part of a approved layout and further vendee intends to purchase site with specific boundaries, the fact that the area proves to be larger than what was stated originally by estimate would not disentitle the vendee the extent in excess of measurement reflected in sale deed more particularly when the excess area forms part and parcel of that site”. Further the HC added “The true construction of the document is that it will, as far as possible, bring several factors with one other and express more clearly the intention of the parties. When a plot is subject matter of sale transaction, no prudent man would agree to permit the vendor to retain marginal portion of the plot which cannot be utilized for any purpose”. Placing reliance on The Palestine Kupat Am Bank Co-operative Society Limited v. Government of Palestine and Others [AIR (35) 1948 Privy Council 207], the court stated that “When there is ambiguity in regard to measurement and the fact that the controversy in respect of a plot, we are of the view that the principle that description by boundaries would prevail over all other descriptions has to be made applicable to the present case at hand”. The HC held that the findings of the Trial Court are erroneous and hence allowed the appeal, passing mandatory injunction against the defendants.

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