How to execute decree if there is no proper identification of property?

 When in execution a question arises as to the identity of the property of which possession has to be delivered to the decree-holder obviously such a question would relate to the execution of the decree and it would be for the executing Court to decide it as required by sub-section (1) of Section 47 of the Code, since it would not be possible for the decree-holder to get it determined by a separate suit, The proposition is so obvious so as not to need any authority. But no facts similar to High ones in the present case the Alahabad High Court in Rahim Buxv. Mohammad Shafi has held that in such cases it is for the execution Court to decide the question after taking such evidence as may be necessary as to what is the property of which possession has to be delivered. In this case also the executing Court would do well to hold a proper inquiry and determine the question with regard to the identity of the room which has to be delivered, to the applicant.

Bombay High Court

Madhukar Timbak Gore vs Vasant Ramkrishna Kolhatkar on 13 September, 1982

Equivalent citations: AIR 1983 Bom 277

Bench: Ginwala

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Whether executing court can take additional evidence to ascertain identity of property?

 Mr. Lakshman Saran Sinha, appearing for the objectors, on the other hand, contended that the executing court had no jurisdiction to take additional evidence to find out the properties in suit. I do not find any force in this contention of Mr. Sinha inasmuch as the executing court is certainly entitled in law to take such steps to effect delivery of possession in terms of the decree under execution. "Such steps" would not amount to taking any additional evidence in the matter but would amount simply to ascertain and fix up the identity of the property in terms of the decree itself.
Patna High Court

Smt. Lalmuni Devi And Ors. vs Shiv Shanker Tiwary And Ors. on 27 February, 1980

Equivalent citations: AIR 1980 Pat 184

Bench: H L Agrawal, C S Sinha

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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 court can grant injunction even if property is not properly identified?

 SUIT FOR DECLARATION AND INJUNCTION - REQUIREMENT OF EVIDENCE - DUTY OF THE COURT - HELD - Unless the Court is satisfied with regard to material details in the light of the material evidence with regard to the identification of the property, no declaration and injunction can be granted.

Karnataka High Court

T.L. Nagendra Babu vs Manohar Rao Pawar on 16 December, 2004

Equivalent citations: ILR 2005 KAR 884

Bench: R Gururajan

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Whether decree is executable when property can be identified?

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 666 of 2015 (Arising out of S.L.P. (C) No. 8008 of 2009)

Decided On: 27.01.2015

Appellants: Zarif Ahmad and Ors.
Vs.
Respondent: Farooq

Hon'ble Judges/Coram:Dipak Misra and Prafulla C. Pant, JJ.

Property - Restoration of decree - Non-identifiable - Determination of nature - High Court set-aside order of First Appellate Court (FAC) and restored decree passed by Trial Court wherein it was held that Respondent-Plaintiff was owner and in possession of suit property - Hence, present appeal - Whether property in suit was not identifiable and FAC committed no error of law in dismissing suit - Held, present suit was for relief of permanent prohibitory injunction in respect of land which was described with boundaries and its municipal number - Therefore, it could not be said that decree passed by Trial Court was un-executable - High Court rightly held that there was no need on part of FAC to remit matter to Trial Court to allow parties to adduce evidence on additional issue, as neither issue on identifiability of land arose from pleadings nor evidence was lacking on record - Advocate Commissioner's report was against weight of oral and documentary evidence on record which sufficiently proved that Plaintiff was in possession over suit property and he was paying house tax - No infirmity in impugned order - Appeal dismissed.

 The object of the above provision is that the description of the property must be sufficient to identify it. The property can be identifiable by boundaries, or by number in a public record of settlement or survey. Even by plaint map showing the location of the disputed immovable property, it can be described. Since in the present case, the suit property has been described by the Plaintiff in the plaint not only by the boundaries but also by the municipal number, and by giving its description in the plaint map, from no stretch of imagination, it can be said that the suit property was not identifiable in the present case. In our opinion, the High Court has rightly held that the first Appellate Court has erred in law in dismissing the suit by holding that the land is not identifiable. It appears that the first Appellate Court has wrongly framed the additional issue as to whether the property in dispute is identifiable or not particularly when there was no such plea in the written statement. We are in agreement with the High Court that there was no need on the part of the first Appellate Court to remit the matter to the trial court as contended by the Defendants before it (High Court) to allow the parties to adduce evidence on the additional issue, as neither issue on identifiability of land arises from the pleadings nor the evidence was lacking on record

Citation; AIR2015SC1236,

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Whether plaintiff is entitled to get possession of property if he fails to prove identification of said property?

 In spite of it, application of Rule of evidence as stated in para-3 above does not entitle the respondents-plaintiffs to a decree for possession, even if the same was legally possible. On the aforesaid principle it was the burden of the respondents-plaintiffs to first help this Court in identifying the suit property. The suit property is described by Letters A.B.Q.R.S.J. & K. in the map annexed the plaint (see para-8). The attached map which now forms part of the impugned decree, however, does not describe the area by these words. The sale-deed which forms basis of the title of the respondents-plaintiffs is not on record and, therefore, it is not possible for this Court to ascertain whether this map compares with the map or descriptions of the suit plot in the sale-deed. The respondents-plaintiffs have filed several maps to clarify the situation of the suit plot i.e., Exs. P-2, P-3 and P-12. None of these maps tally with the plaint map. Plaint map indicates that the northern boundary of the suit plot is 188 ft. in length but nowhere in these maps, one can find such a northern boundary. Clearest position of the suit plot appears in map Ex. P-2 where northern boundary of the plot is much more than 188 ft. Not only the northern boundary, the eastern boundary of the plaint map Ex. P-2 doe's not tally with these maps. This discrepancy was brought to the notice of the learned counsel for the respondents at the time of the hearing of this appeal to enable him to explain and properly identify the said fact. He was, however, not able to throw any light on the subject with the help of the material on record. Indeed it appears that no effort was made to properly identify the suit plot at any time before, which in the opinion of this court, was the basic requirement. Since the resp'ondents-plaintiffs claim title based on sale deed dated 10-8-1964 and they would not be entitled to anything more than what they have purchased, it was their obligation to file the sale deed to enable this court to properly identify the suit plot and to ascertain whether they have the necessary title. They cannot hope to succeed only by pleading and proving the area of the suit plot. It is not the policy of law to leave matters vague and thereby create litigation within litigation. Then simply because the area of the two plots is the same, it cannot be held that the respondents-plaintiffs were owners of the suit plot. They have clearly failed to discharge the burden of proof which initially lay on them.

Madhya Pradesh High Court

Smt. Lalita James And Ors. vs Ajit Kumar And Ors. on 21 August, 1989

Equivalent citations: AIR 1991 MP 15

Bench: G C Gupta

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