How to appreciate evidence regarding fact and extent of encroachment in suit for removal of encroachment?

 The Cadesteral Surveyor, therefore, will have first to ascertain the boundary marks and boundaries of undisputed and unencroached area of the land, based on undisputed boundary marks, as seen in the public record, and thereafter measure the extent of encroachment. {Para 35}

36. If such report of the Commissioner is proved, as rendered, keeping in view the requirements of rules relating to measurement and if it withstands the test of cross-examination, unless admitted document, alone can be the foundation as to proof of fact and of extent of encroachment.

37. In the present case, the procedure, as emerging from foregoing discussion, has not admittedly been adopted.

38. The Substantial Questions of Law are answered as follows:

Answers to Substantial Questions of Law Nos. [1] and [2]:

[i] Fact of encroachment may be proved partly by oral evidence;

[ii] the extent of encroachment cannot be proved in absence of public records and procedure emerging from Section 36 and Section 60 of Evidence Act;

[iii] it would be impermissible to record a finding as to the fact and extent of encroachment, if any, without ascertaining the fact and extent of encroachment by measurement, based on public record and undisputed and/or settled boundaries of respective lands and measurement of surrounding lands, as may be required.

Answer to Substantial Question of Law No. [3]:

[v] it would not be proper to dismiss the suit simply because the Court Commissioner has not adopted a correct procedure of measurement and the exercise of re-measurement, according to rules, will have to be got done through Court Commissioner again and again, if necessary, because failures of Cadesteral Surveyors are not attributable to parties to the suit.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 97 of 2009

Decided On: 04.05.2009

Vijay shrawan shende and Ors. Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

A.H. Joshi, J.

Citation: 2009 (5) MHLJ 279,MANU/MH/0370/2009.

Read full Judgment here: Click here

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Under which circumstances plaintiff can prove encroachment by oral evidence?

PROOF OF FACT OF ENCROACHMENT

24. If there be undisputed boundaries, encroachment can be a question or a matter of fact, which can be seen by a person where encroachment was witnessed. Fact of encroachment also could be a matter of oral evidence, if the admitted boundaries are destroyable, and have been destroyed in presence of witness by the party making the encroachment.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 97 of 2009

Decided On: 04.05.2009

Vijay shrawan shende and Ors. Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

A.H. Joshi, J.

Citation: 2009 (5) MHLJ 279,MANU/MH/0370/2009

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Whether the court can allow amendment of plaint to correct four boundaries of suit property after commencement of trial?

True it is that the plaintiffs have sought to

completely alter the boundaries of the suit property in

all four directions by amending the plaint. The

amendment was opposed on the ground that the

plaintiffs were trying to fill up serious lacuna in their

case. Be that as it may. Trial in the suit is yet to

progress. In such a case, plaintiffs would be at liberty

to correctly describe the suit property by removing any

error. The trial court has not committed any error while

allowing amendment application by imposing costs.

Petition is devoid of any merits. Petition stands

dismissed without any order as to costs. {Para 3}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

950 WRIT PETITION NO.7826 OF 2022

MUNICIPAL CORPORATION Vs SABIYA SULTANA MOHAMMAD HUSSAIN BABA MASTAN AND OTHERS

CORAM : SANDEEP V. MARNE, J.

Dated : November 25, 2022.

Citation: 2023 Lawweb (Bom HC ) 2.

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When a party can file suit for rectification of misdescription of immovable property in sale deed?

  He further argues that under Section 26 of the Specific Relief

Act, 1963, only in case of fraud or mutual mistake of the parties,

contract or other instrument in writing, can rectify the instrument.

He points out that in absence of pleadings relating to fraud or

mutual mistake, allowing rectification of sale-deed would be

contrary to the provision of Section 26 of the Specific Relief Act,

1963.

 Section 26, of course, says that it would be open to

a party to institute a suit for correcting the description

of the suit property, but the proviso to Section 26

clearly permits that where a party has not claimed any

such relief in his pleading, the court shall at any stage

of the proceeding allow him to amend the plaint on

such terms as may be just for including such claim.

From a plain reading of the provisions under Section

26 of the Act, there is no reason why the prayer for

amendment of the agreement to correct a part of the

description of the suit property from Chak No. 3 SSM

to Chak No. 3 SLM, later on converted to Chak No. 3

SWM could not be granted. In our view, it is only a

correction or rectification of a part of the description

of the suit property, which cannot involve either the

question of limitation or the change of nature of suit.

In our view, the suit shall remain a suit for specific

performance of the contract for sale and a separate

independent suit is not needed to be filed when the

proviso to Section 26 itself clearly permits either party

to correct or rectify the description of the suit property

not only in the plaint but also in the agreement

itself….”

27. In every sale transaction of land, to avoid further litigation or

any dispute, it is expected that the vendee should verify the title

deeds before entering into the agreement, visit the site and finally

after satisfying all the materials prepare draft sale deed. Therefore, it is not the only duty of vendor but it is the duty of both the parties to the contract for sale of land, to take care while mentioning description of properties in the sale-deed. Thus if there is any mistake in description of properties or boundaries in sale deed the same cannot be said to be a mistake of one party  and not of both  the parties to such contract.

28. In light of conclusion arrived at by this court that this is a

case of misdescription and not a case of mistaken identity and in a case of misdescription of the field Gat number and the boundaries, the boundaries would prevail over field Gat number, it cannot be said that the mistake in the present case is in respect of a matter which is essential to the agreement, therefore, sections 20 of Act 1872, would not apply to the present case.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR

SECOND APPEAL NO. 121 OF 2005

Sau. Varsha  Sahebrao Deshmukh Vs  Ghanshyam  Madanlal Goenka,

CORAM : ANIL S KILOR J.

DELIVERED ON: 31st JANUARY, 2020

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Whether plaintiff can get decree for possession if there is difference in boundaries mentioned in sale deed and in evidence?

The settled position of law is that for the purpose, the plaintiffs have to stand on their own and they cannot take advantage of the weakness of the case of the defendants or their omissions. The lower appellate court has found the boundaries mentioned in the sale-deed of the respective parties to be not in order and that to, the same to have been differently stated in the evidence let in by the plaintiffs. The deed i.e. the Panchayat Patra, Ext-3 having been gone through, the boundaries as mentioned therein have been taken note of. From that, the lower appellate court has taken the view against the plaintiffs in establishing the nexus between the land as described in the sale deed which is the foundation of their case and the land in suit as stated in the plaint schedule. During hearing, although, it is stated that the appellants had filed the deed in question as has been referred to in the order of the settlement authority in one objection case so as to be taken as additional evidence, in my considered view even upon acceptance of the same as additional evidence, there would not have made any such improvement in their case so as to cast any such significant impact on the conclusion as regards non-establishment of the nexus as aforesaid. The lower appellate court has further gone to examine the documents i.e. the sale-deed in favour of defendant no. 1 to 5 with reference to the boundary of the land as finds mention therein. It has further found the oral evidence to be also inadequate to reach at a conclusion/finding regarding possession. It has been said that the boundaries by different parties are differently stated in their respective sale deeds which are inconsistent and that the evidence of possession as laid by the parties do not land them in a place so as to be favoured with a conclusive finding in that regard. On going through the evidence on record, this Court does not find any reason or justification to accord its disagreement with the conclusion arrived at by the learned appellate court that the sale-deeds of the parties do not properly relate to the stated field position.

IN THE HIGH COURT OF ORISSA

R.S.A. No. 239 of 2006

Decided On: 19.11.2018

 Durga Das Dey Vs. Jatindranath Giri 

Hon'ble Judges/Coram:

D. Dash, J.

Citation: AIR 2019 Orissa 45

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Whether judgment debtor can challenge that boundaries of suit property is incorrect if he has not challenged it in written statement?

 In the instant case, the defendant decree-holder contested the suit by filing written statements without controverting the boundary given in the schedule of the plaint and accepted the same all-through out and the objection was raised only after execution of the decree. The reports of the Nazir as well as the enquiry so conducted by the learned Executing Court disclose that the decree was executed in terms of the boundary described in the plaint. In fact, neither in the objection filed by the petitioner at the initial stage nor even at the later stage of the proceeding he has challenged that the boundary of the suit property described in the plaint is different from that of the boundary described in the schedule to the decree. The consequence of such silence of the judgment-debtor is that the property which is the subject-matter of the suit falls within the boundary as provided in the decree.

IN THE HIGH COURT OF GAUHATI

Decided On: 09.08.2006

 Jonaram Das Vs.  Md. Abdul Kadir and Ors.

Hon'ble Judges/Coram:

H.N. Sarma, J.

Citation: AIR 2007 Gauhati 18

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How to execute decree if description of suit property is vague?

 These principles of law would apply to a case wherein the description of the suit property is vague or the suit property is unidentifiable and the mistake has been corrected by the executing court or the clarification has been given by the executing court which amounts to going behind the decree. Similarly, these principles of law would not apply where description of the suit property is clear and the property is identifiable. Between these two categories of cases, there could be an intermediate category where there is some doubt about description of the property. In such intermediate category of cases, the executing court can make efforts to remove the doubt by examining the pleadings of the parties and the findings recorded by the court passing the decree. Some time in such cases, there arises a conflict between the area and boundaries of the suit property. In case of such a conflict, the law is that statement as to boundaries shall prevail. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 1209 of 2018

Decided On: 05.12.2018

 Shaikh Jalil  Vs. Mohamed Rizwanul Haq and Ors.

Hon'ble Judges/Coram:

S.B. Shukre, J.
Citation: 2019(4) MHLJ 348

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Whether incorrect description of property will vitiate sale transaction?

These provisions show that the transfer of
ownership of land involves transfer of full rights and
interests of the vendor and there is characteristic of
permanency to such transfer. The transfer takes place as
soon as the document is registered. In view of the
provision of section 8, quoted above, it can be said that
not much importance can be given to the incorrect
description of the structure standing on the land. Such
incorrect description cannot vitiate the sale. If boundaries
are given and they are definite, the land that is conveyed
is the land situated within those specific boundaries along
with structure standing on it. In view of the provision of
section 8, quoted above, if the vendor had no intention to
sell some portion of the property or some part of his
rights, he needs to specifically mention about it in the sale

deed. In absence of such mention the title in the land
along with title in the structure standing on the land,
passes to the purchaser. In view of this position of law,
nothing could have been achieved by the defendant even
after making the pleadings in that regard and giving
evidence.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.1698 of 2005

 Shriram s/o Ratanlal Thakur

V
 Rameshwar s/o Shaligram Chandak

 CORAM: T.V. NALAWADE, J.
 DATE : 7th JUNE 2016.
Citation: 2016(6) MHLJ 750

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Whether court can grant declaration of title if plaintiff fails to prove identity of property sold to him?

The lower appellate court by the judgment dated 22-3-1982 allowed the said appeal and dismissed the suit, inter alia, on the finding that the plaintiff had failed to establish title to the suit property and possession of the same. It may be stated here that the case of the plaintiff is that the plaintiff had purchased an open plot on 22-2-1978 by registered sale deed from Bashir Khan and obtained possession of the same. The plaintiff relied on the title of the suit property on the basis of such purchase by the registered sale deed Ex. P/1 and a map also annexed to the sale deed being Ex. P/2. The boundaries were mentioned in the sale deed. The lower appellate court has indicated in the judgment that the boundaries as mentioned in the sale deed, do not tally with the boundaries mentioned in the deed of gift on the basis of which Bashir Khan, the vendor of the plaintiff had obtained the suit property from the admitted owner. In order to establish possession of the suit land the plaintiff stated that in the suit land there was a latrine. The lower appellate court has indicated that in the sale deed existence of a latrine was not mentioned. As the plaintiff failed to establish the title to the suit land and possession in respect thereof by leading convincing evidence, the lower appellate court dismissed the said suit.
Even if adverse inference is drawn against the municipality for not producing the documents in its possession, the plaintiff cannot succeed unless the plaintiff establishes the plaintiff's title to the suit property and also possession in respect of the same. In the instant case, it has been held by the lower appellate court that neither the possession of the suit property either by the predecessor-in-interest of the plaintiff or by the plaintiff nor the title to the same had been established by leading any cogent evidence. The boundaries mentioned in the document of sale and in the document of gift are different. It has not been established by any reliable evidence that the very same property was conveyed to the predecessor-in-interest of the plaintiff and the plaintiff got the same by virtue of the sale deed. The existence of a latrine was also not mentioned in the sale deed. In the aforesaid circumstances, the finding of the lower appellate court cannot be held to be perverse for which interference by the High Court in a second appeal was warranted.

Supreme Court of India

Shakir Hussain vs Administrator, Nagar Palika, ... on 17 March, 1998

Equivalent citations: AIR 1999 SC 2872, JT 1998 (9) SC 49, (1998) 9 SCC 613

Bench: G Ray, G Pattanaik

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Whether boundaries will prevail over measurement of land?

 It is well established by several decisions of courts that where the boundaries in a document are vague and indefinite, the area should prevail, but where the boundaries are specific and definite the area must be taken as given only approximately vide Bholanath Chattopadhyaya v. Mrityunjay Chattopadhya, 153 Ind Cas 532: (AIR 1934 Cal 851). A decision of our High Court in Subbaya Chakkaliyan v. M. Mutbiah Gounden, 19 Mad LW 245: (AIR 1924 Mad 493) of Krishnan and Waller, JJ. has also put the position thus:

"Ordinarily when a piece of land is sold with definite boundaries, unless it is very clear from the circumstances surrounding the sale that a smaller extent than what is covered by the boundaries was intended to be sold, the rule of interpretation is that boundaries must prevail as against measurement?."

A similar view is also expressed in the Palestine Kupat Am Bank Co-operative Society Ltd. v. Government of Palestine, AIR 1948 PC 207 "In construing a grant of land a description by fixed boundaries is to be preferred to a conflicting description by area."

Madras High Court

Dharmakanny Nadar ... vs Mahalingam Nadar Gopalakrishna ... on 20 April, 1962

Equivalent citations: AIR 1963 Mad 147

Bench: Ramakrishnan

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How to identify property if there is mistake in plot number?

 Thus the effect of this decision is that where there is no doubt as to the identity and there is only misdescription that could be treated as a mere irregularity. Another case on which reliance has been placed on behalf of the respondents is Gossain Das Kundu v. Mrittunjoy Agnan Sardar (1913) 18 C. L. J. 541. In that case the land sold was described by boundaries and area; but the area seems to have been incorrect. It was held to be a case of misdescription of the area and the boundaries were held to prevail. We are of opinion that the present case is analogous to a case of misdescription. As already pointed out the area, the khata number and the boundaries all refer to plot No. 1060 and what has happened is that in writing the plot number, one zero has been missed and 1060 has become 160. It is also important to remember that there is no plot bearing No. 160, in khata No. 97.

In these circumstances we are of opinion that the High Court was right in holding that this is a case of misdescription only and that the identity of the property ,;old is well established namely, that it is plot No. 1060.' The matter may have been different if no boundaries had been given in the final decree for sale as well as in the sale certificate and only the plot number was mentioned. But where we have both the boundaries and the plot number and the circumstances are as in this case, the mistake in the plot number must be treated as a mere misdescription which does not affect the identity of the property sold. The contention of the appellants therefore with respect to this plot must fail.

Supreme Court of India

Sheodhyan Singh And Others vs Musammat Santchara Kuer And ... on 4 May, 1961

Equivalent citations: 1963 AIR 1879, 1962 SCR (2) 753

Bench: Wanchoo, K.N.

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Supreme Court: Identification of property by boundaries will prevail over description of property

The High Court has also upheld the title claimed by the plaintiff over the plot, Plot No. 1301/1 Ba. Once we accept the identification made by the Commissioner as was done by the first appellate court, it is clear that the plaintiff has the right to have the disputed construction removedand the well filled up. That a property can be identified either by boundary or by any other specific description is well established. Here the attempt had been to identify the suit property with reference to the boundaries and the Commissioner has identified that property with reference to such boundaries. Even if there was any discrepancy, normally, the boundaries should prevail. There was no occasion to spin a theory that it was necessary in this suit to survey all the adjacent lands to find out whether an encroachment was made in the land belonging to the plaintiff. In this situation, we are satisfied that the judgment and decree of the High Court calls for interference. We are also satisfied that the lower appellate court was justified in affirming the decree granted in favour of the plaintiff on the pleadings and the evidence in the case.

Supreme Court of India

Subhaga & Ors vs Shobha & Ors on 7 July, 2006

Bench: S.B. Sinha, P.K. Balasubramanyan

           CASE NO.:
Appeal (civil)  2836 of 2006

Citation:2006(5) SCC 466

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Whether failure to give description of suit property by giving boundaries etc. in the plaint is fatal?

 In a decision of the Hon’ble Apex Court reported in (2003)2 SCC 330, Pratibha Singh & another vs. Shanti Devi Prasad & another, it has been held in paragraph 17 as follows :-
“17. When the suit as to immoveable property has been decreed and the property is not definitely identified, the defect in the court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 CPC is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47 CPC depending on the facts and circumstances of each case – which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected u/s 152 CPC by the Court which passed the decree by supplying the omission. Alternatively, the exact description of decreetal property may be ascertained by executing court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. In the facts and circumstances of the present case, we think it would be more appropriate to invoke Section 47 CPC.”

14. Relying upon the said decision of the Hon’ble Apex Court this Court has held in the case of Monoranjan Dutta vs. Narayan Dhar, reported in 2006 (4) GLT 160 that the failure to give a description of the suit property by giving boundaries etc. in the plaint is not fatal and can be cured at a later stage. It has been held that providing those descriptions are only optional to the plaintiff and not obligatory one.
15. From a plain reading of the provisions of Order VII Rule 3 CPC it is evident that the underlying object is to ensure that a decree involving immovable property can be executed with proper identification of the suit property and therefore the said provision is directory in nature. If there arises any confusion in identifying the property the court would be entitled to call for additional particulars and such lacunae, if any, would be curable in nature. It is not the case of the defendant/respondent that the plaintiff has deliberately suppresses the factual particulars to his knowledge despite directions passed to that effect by the Court to furnish the same. The suit not being one for recovery of immovable property, Order XX Rule 9 CPC will not have any application in the facts of the present case.
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT AT GUWAHATI
(CIVIL APPELLATE JURISDICTION)
R.S.A.No. 139 of 2001
APPELLANT :
Shri Dwaraka Prasad Agarwalla,

-Versus-

On the death of sole respondent
Sri Nil Kamal Bezbarua, his legal heirs :-
1. (a) Smti. Sarada Bezbarua (wife)
(b) Sri Prabhat Bezbarua (son)
(c) Sri Kamal Kishore Bezbarua (son)

BEFORE
HON’BLE MR. JUSTICE SUMAN SHYAM
Read original judgment here;click here
Citation;AIR 2015 Gauhati high court33

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