When boundary of land will not prevail over measurement of land?

The Madras High Court in the case of Dina Malar
Publications, A Tamil Daily, Reptd., by its Partner, R.K.
Krishnamoorthy Vs. The Tiruchirapalli Municipality, Reptd., by its
Executive Authority, The Commr., reported in (1983) 2 MLJ 340
(Madras) has held that in case of doubtful or varying extents in the
documents of title relating to the property, boundaries should be preferred
to the extent. It is held that this principle can be applied only to a case
where there is an element of doubt with reference to the extent of the
area sold. In my view, since the area of the land sold to the defendants
was absolutely clear in the sale deed itself which was duly proved by the
documentary as well as the oral evidence, the question of the boundaries

prevailing over the area of the land mentioned in the sale deed did not
arise.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.209 OF 1994

 Bhujanga Abba Patil  V Dnyanu Ramchandra Powar 

 CORAM : R.D. DHANUKA, J.

PRONOUNCED ON : 26th October 2016
Citation: 2017(1) ALLMR 110

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Whether defendants can seek execution of decree?

  There are very many instances in which a decree can be said

to be in favour of the parties to the litigation, irrespective of the fact whether


they are the plaintiffs or defendants in the suit. In such cases, the decrees

can be said to be capable of execution at the instance of any of the parties

to the suit.     Examples of such decrees are those passed in suits for

partition, specific performance of a contract, suits under Section 92 CPC,

etc. I may hasten to add that the list is not exhaustive.

          A Division Bench of the Calcutta High Court in Iswar Sridhab

Jew v. Jnanendra Nath (AIR 1960 Calcutta 718) has laid down the law

that where a scheme decree is executable and gives any rights to any

party, which can be enforced by execution, the fact that the person seeking

execution was formerly a defendant in the suit and a judgment debtor

under the decree cannot possibly prevent him from working out the decree

by execution. Learned Judges have drawn an analogy from a decree in a

suit for partition to arrive at the conclusion.

           I may immediately refer to Section 28 of the Specific Relief Act,

1963 (in short, "Act") to vouchsafe the point that under certain

circumstances, even the defendant can seek indulgence of the court for

reliefs subsequent to the decree. Section 28 of the said Act deals with the

rescission of a contract after passing of a decree in a suit for specific

performance. It is well settled that a suit for specific performance does not

come to an end on passing of a decree.             Section 28(1) of the Act

empowers a vendor or lessor to apply in the same suit in which the decree



is made to have the contract rescinded, if the purchaser or lessee, as the

case may be, does not, within the period allowed by the decree, or such

further period as the court may extend, pay the purchase money or other

sum. From this provision, it is clear that despite the vendor or lessor was a

defendant in the suit, such a person gets an opportunity to seek rescission

of the contract even after passing the decree. This principle has been

approved by the Bombay High Court as early as in 1923 in the decision in

Bai Karimabibi v. Abderehman Sayad Banu (AIR 1923 Bombay 26).

Learned Single Judge of the High Court of Patna in Kanu Charan Deep v.

Bimla Deep (II (1996) DMC 214) has held that a decree in a proceeding

under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal

rights is executable even at the instance of the respondent as the decree is

in favour of both the parties. Division Bench of the Allahabad High Court in

Ajudhia Prasad v. The U.P. Govt. through the Collector (AIR 1947 All.

390) has considered the scope of the expression "decree holder" occurring

in Section 2(3) CPC and held as follows:

                   "Now it is clear from this that a person in

             whose favour an order capable of execution has

             been made is also a decree holder. It is also evident

             from this definition that a decree-holder need not be

             a party to the suit. He may be 'any person'. ..........."

For the said reasons, there cannot be any dispute that the decree passed



in a suit for fixation of common boundary of the plaintiff and defendant,

being one intended to put an end to the dispute between the parties and to

achieve the object of common good, should be allowed to be executed by a

defendant in the suit too. According to me, the sum and substance of the

legal principles to be borne in mind regarding the terms "decree holder"

and "holder of a decree" can be stated like this. The term "decree holder"

denotes a person (i) in whose favour a decree has been passed (ii) in

whose favour an order capable of execution has been passed and (iii)

whose name appears in the decree, either as plaintiff or defendant, and the

following conditions are satisfied:

       (a) the decree must be one capable of execution and

       (b) the said person, by the terms of the decree itself or from its

nature, should be legally entitled to seek its execution.

Similarly, the term "holder of a decree" takes in not only the "decree

holder", but other rightful persons like transferee of a decree, legal

representative, etc.

          Therefore, I am of the definite opinion that the view taken by

the executing court that a decree for fixing common boundary of the

properties of the plaintiffs and defendants cannot be demarcated in an

execution proceeding moved at the instance of the defendants is clearly

illegal and hence unsustainable.

IN THE HIGH COURT OF KERALAAT ERNAKULAM

                                                         PRESENT:

                            THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                      FRIDAY, THE 26TH DAY OF JUNE 2015.

                                                CRP.No. 321 of 2013 

        SOMAVALLY  Vs  PRASANNA KUMAR

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When court can grant right of way from boundary of field of another person?

Equivalent Citation: 2011(5)ALLMR62, 2011(6)BomCR66, 2011(5)MhLj345

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 55/1995

Decided On: 30.06.2011

 Manikrao S/o Narayanrao Bhoge and Ors.
Vs.
 Shri Maheshkumar S/o Bansilal Vyas and Shri Mahadeorao S/o Nathuji Ugale

Hon'ble Judges/Coram:
A.B. Chaudhari, J.

Property - Injunction - Easementry Right - Present appeal filed against order by which lower Appellate court reversed judgment and decree passed in Appellant's suit filed for declaration for right or way and for perpetual and mandatory injunction in relation to way shown by letters A1 to A7 for approaching to their respective fields - Held, there was so many other fields in between point A-1 to A-6 - Way passes over boundaries of other fields which includes other relevant field - However, owners of these fields must have not objected to user and therefore, they are not arrayed as Defendants in this suit - This also supports Appellant's case - Said owner have tacitly admitted Appellant's right of way and therefore, they did not raise objection - It was clearly established right acquired by Appellants by prescription and first appellate Court committed error in recording finding that there was no easementary right by way of prescription - Finding recorded by first appellate Court that they had alternate available to approach their respective fields by crossing big Nullah appears to be perverse since trial Court has clearly held that Nullah is big Nullah - It is difficult to believe that farmers would be able to go to their respective fields with bullock carts and luggages during rainy season when Nullah would flow - It cannot be said that that was matter of mere convenience of Appellant - Hence, said prescriptive right ought to have been granted by appellate Court - For these reasons, Second Appeal allowed - Judgment and decree passed by lower appellate Court is set aside - Judgment and decree passed by trial Court is restored

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Whether in case of conflict between area and boundary,description of boundary shall prevail?

 Reference may be made to the cases of Gossain Das in (1913) 18 Cal LJ 541, 59 Cal LJ 532 at p. 534 : (AIR 1934 Cal 851 at p. 852) and 52 Cal WN 719 at p. 722 : (AIR 1948 PC 207 at p. 209) to show that in case of conflict between the area and the boundary, the description of the boundary will prevail. It will be pertinent to point out that the Bench decision of our Court in (1909) 10 Cal LJ 570 was set aside by the Judicial Committee in the case in (1913) 40 Ind App 223 (PC) on a different point and not on the question of conflict between the area and the boundary. So this branch of the appellant's arguments is not accepted.
Calcutta High Court

Roy And Co. And Anr. vs Sm. Nani Bala Dey And Ors. on 31 August, 1978

Equivalent citations: AIR 1979 Cal 50

Bench: B Maitra

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