The main legal point established in the judgment is that in a specific performance case, the description of the property in the agreement must be certain, and boundaries will prevail over extent in determining the property to be sold.

1. This Second appeal is focussed by the original defendant animadverting upon the judgment and decree dated 28.09.2005 passed in A.S.No.99 of 2003 by the learned Subordinate Judge, Dharmapuri, confirming the judgment and decree of the learned District Munsif, Arur in O.S.No.6 of 1998. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.

2. The merits relating to the factual matrix as stood exposited from the records lie within a narrow compass which could tersely and briefly be set out thus:

(a) The plaintiff filed the suit seeking the following reliefs:

"(i) To order specific performance of the agreement of sale dated 18.10.1997 against the defendant and direct him to execute the sale deed in favour of the plaintiff;

(ii) In case of the default by the defendant act aforesaid prays this Hon'ble Court may be pleased to execute the sale deed in favour of the plaintiff for and on behalf of the defendant;

(iii) Granting permanent injunction in favour of the plaintiff restraining the defendant from executing the sale deed or creating any encumbrance over the third parties.

(iv) For costs." (extracted as such)

(b) The defendant filed the written statement resisting the suit.

(c) Whereupon issues were framed by the trial Court.

(d) The plaintiff-Sardar examined himself as P.W.1 along with P.W.2-Alibaba and Exs.A1 to A9 were marked. The defendant examined himself as D.W.1 and Ex.B1 was marked.

3. Ultimately the trial Court decreed the suit ordering specific performance with reference to an extent of 14 feet from north to south on either side so as to make good the total extent of 1-1/4 cents as envisaged in Ex.A1. Being aggrieved by and dissatisfied with the same, the defendant preferred appeal for nothing but to be dismissed confirming the judgment and decree of the trial Court.

4. Challenging and impugning the judgments and decrees of both the Courts below, this Second Appeal has been filed on various grounds inter alia to the effect that quite antithetical and contrary to the terms and conditions as found set out in Ex.A1 the agreement to sell, the Courts below simply decreed the suit assuming as though the plaintiff was entitled to, by all means an extent of 1/1-4 cent, despite the Agreement to sell-Ex.A1 specifically contemplated, that over and above 10 feet from north to south on either side alone was not intended to be sold.

5. The following substantial questions of law are found suggested in the grounds of appeal:

"(1) Is not the Ex.A1, is a sham and nominal document made only for the purpose of security for the loan obtained by the Appellant from the Respondent, when Ex.A1 prima facie establishes that it is a sham and nominal document?

(2) Whether the courts below were right in holding that the Respondent is entitled for relief of specific performance as per Ex.A1, when the same is affected by doctrine of non est factus."

(extracted as such)

6. After hearing both sides, I am of the considered view that the following substantial questions of law could be framed:

(1) Whether in the facts and circumstances of the case, the description of property in Ex.A1 could be held to be bad for want of certainty and if so, whether on that ground the suit was not maintainable?

(2) Whether boundaries will prevail over extent or vice versa in this case?

(3) Whether there is any perversity or illegality in the order passed by both the Courts below?

7. All the aforesaid substantial questions of law are taken together for discussion as they inter linked and inter woven with one another.

8. The learned counsel for the appellant/defendant would set forth and put forth his arguments, the gist and kernel of them would run thus:

(a) At no point of time the defendant agreed to sell any extent over and above 10 feet from north to south on either side of the property concerned.

(b) Simply because the appellant/defendant is owning lands to the north of the property described in Ex.A1, he is no