Terms of documents describing property as unencumbered, controls interpretation of schedule.

The dispute in this second appeal relates to an extent of 5 cents of land. The defendant who has failed in both the Courts below, is the appellant. One Subbaraya Reddiar was the owner of S. No. 2215/5D1 of an extent of 1 acre and 10 cents in Moolaikaraipatti Panchayat limits. Under Exhibit A-1 dated 4th November. 1951, he othied an extent of 90 cents in S.No. 2215/5D1 in favour of one Subbammal and another for Rs. 1,000. Under Exhibit B-1, dated 25th September, 1954, the defendant purchased an extent of 25 cents in the southern portion of the property for a sum of Rs. 700. The plaintiff’s have purported to purchase under the registered sale deed Exhibit A-2 dated 14th November, 1960 the extent of 90 cents, usufructuarily mortgaged to Subbammal and another, for a sum of Rs. 1,500. Under Exhibit A-3 dated 17th November, 1960, the plaintiffs discharged the usufructuary mortgage. The plaintiffs have filed the suit claiming that they are entitled to the entire 90 cents in the north and the defendant’s claim for 25 cents in the survey field is untenable. According to the plaintiffs, the defendant is entitled only to 20 cents in the south and no more. The plaintiffs charge the defendant with attempting to encroach to an extent of 5 cents on land which they redeemed from the usufructuary mortgagees, by virtue of their title to 90 cents under the sale deed Exhibit A-2. The Courts below have granted the plaintiffs declaration of their title to the entire 90 cents in the north in S.No. 2215/5 D1 and issued the consequential injunction prayed for. The defendant’s purchase has been limited to 20 cents.

There is no dispute that the total extent of S. No. 2215/5 D1 is 1 acre and 10 cents, and Subbaraya Reddiar has only this extent in his enjoyment. It is the finding of the Courts below that the northern 90 cents out of 1 acre and 10 cents had been in the possession of the usufructuary mortgagees under Exhibit A-2 till redemption. At the time of the sale in favour of the defendant, Subbaraya Reddiar had been in possession of only the remaining 20 cents in the south. The case of the defendant that the land of an extent of 25 cents in the south was measured and possession of it was given to him, has been found against, quite properly, as the mortgagees had possession of 90 cents. The ultimate observation of the appellate Court shows the approach of the Courts below to the determination of the case. It is observed: ‘D.W. 1 (defendant) confesses that at the time of Exhibit B-1, Exhibit A-1 was still subsisting, that the in mortgagees were in possession of the 90 cents (covered by Exhibit A-1) and that remaining property was lying vacant at the time of his purchase. This admission.........conclusively establishes that Exhibit A-1 property was in the possession of the mortgagees and under their cultivation and that it is exactly this property of the northern 90 cents which Subbaraya Reddiar sold to the respondent under Exhibit A-2, to the exclusion of the remaining land of 20 cents, which was vacant and which he sold to the appellant as per Exhibit B-1...... ‘The Court below would hold that, notwithstanding the fact that Exhibit A-2 is later in point of time and fact than Exhibit B-1, it takes precedence over Exhibit B-1. The emphasis which the Courts below would place is on the fact that the entire extent of 90 cents was under the usufructuary mortgagees and Subbaraya Reddiar could have sold free of encumbrance, only the remaining 20 cents.

Learned Counsel for the appellant contends that the Courts below have not borne in mind the principles applicable in a case of this kind. The appellant has purchased the specific extent of 25 cents in the south. His vendor was entitled to convey that extent to him, notwithstanding that there was an outstanding encumbrance over a part of it, and the same was in the possession of the usufructuary mortgagees Learned Counsel submits and rightly that, when a specific extent of property is conveyed and the ve