Boundaries given in the sale deed prevalent over extent.

R. Sengottuvelan, J.

1. This appeal has been preferred by the plaintiff in O.S. No. 831 of 1977, who lost his case before both the courts below.

2. The brief facts of the case giving rise to this second appeal are as under-The suit property, comprises an extent of 60' x 40' in S.F. No. 371/2. It was originally a blind alley, which was not used as a public road and later on, the Municipal Council after obtaining the sanction of the State Government under Exhibit B1, dated 24th July, 1972, sold the same to one Panneerselvam under Exhibit A1, dated 9th May, 1974, who sold the same under the original of Exhibit A2 in favour of Ramasubbu Iyer, representing the appellant herein. The area mentioned in the sale deed is 60' x 35' i.e., an area of 2,100 sq. ft. But the blind-alley measured 60' x 40'. The case of the plaintiff is that the sale under Exhibit A1 is by boundaries and all the land comprised within the four boundaries mentioned in Exhibit A1 passed on to the vendee, Panneerselvam under the original of Exhibit A2. On the other hand, the case of the Municipal Council as well as the other respondents herein is that only an extent of 60' x 35' was sold to the appellant's predecessor-in-title and hence, the appellant cannot lay claim to any extent more than 2,100 sq. ft., for which he has paid the value.

3. The trial court, after considering the evidence, both oral and documentary, came to the conclusion that the appellant is entitled only to the extent mentioned in Exhibits A1 and A2 and he cannot claim any right to the extent over and above 2,100 sq. ft. As against the said judgment, the appellant filed A.S. 228 of 1930 on the file of the District Judge, Trichi. The District Judge also after considering the evidence, concurred with the finding of the trial Court and dismissed the appeal As against the concurrent finding of the courts below, this second appeal is preferred.

4. Mr. T.S. Subramaniam, learned Counsel for the appellant, contends that in a case like this where both boundaries and the extent are mentioned in the sale deed, the boundaries will prevail over the extent. In support of this contention he relies upon the following decisions of this Court and of the Privy Council.

5. In Subbayya Chakkilian v. Maniam Muthiah Gounden, 46 M.L.J. 182 : 19 L.W. 245 : A.I.R. 1924 Mad. 493, a Bench of this Court held that ordinarily when a piece of land is sold with definite boundaries, unless it is 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 the measurements.

6. In Siviseshamuthu v. Gopalakrishnan , Ramakrishnan, J. has held as follows:

Where the property sold is part of a definite survey number and in the sale deed exact boundaries of the part sold are given and the area mentioned is only approximate, the description by boundaries should prevail in ascertaining the actual property sold under the document.

In P.K.A.R.C.O.S. Society v. Government of Palestine A.I.R. 1948 P.C. 207 : 62L.W. 21, it was held that in construing a grant of land, the description by fixed boundaries is to be preferred to a conflicting description by area. The statement as to area is to be rejected as false demonstration.

7. In Church of S.I.T.A. v. Raja Ambrose (1978)2 M.L.J. 620, Balasubrahmanyan, J., has held that if the deed in question sets out the boundaries of the property conveyed then those boundaries will have to be accepted as a clear reflection of the intention of the mortgagor and they will conclude not only the exact position of the property conveyed, but also its true extent. The boundaries given in the deed will also, in such cases, prevail oven the measurements given in the deed, if those are given as approximations.

8. Relying on the above said decisions, it is contended by the learned Counsel for the appellant that in the case on hand, the boundaries recited in both the documents, v