Boundaries mentioned in a document will prevail over the measurement of the land, unless there is a specific extent mentioned in the sale deed.

1. S.A.No.729 of 2011 is filed against the judgment and decree dated 24.02.2011 in A.S.No.44 of 2010 on the file of the Sub-Court, Sathyamangalam, Erode District, against the judgment and decree dated 16.08.2010 in O.S.No.225 of 2007 on the file of the District Munsif Court, Sathyamangalam, Erode District.

2. Second Appeal No.730 of 2011 is filed against the judgment and decree dated 24.02.2011 in A.S.No.43 of 2010 on the file of the Subordinate Court, Sathyamangalam, against the judgment and decree dated 16.08.2010 in O.S.No.330 of 2007 on the file of the District Munsif Court, Sathyamangalam, Erode District.

3. Since the appeals arise out of common judgment and decree of the Courts below, they are disposed of by this common judgment. For the sake of convenience, the parties are referred to as they are ranked in O.S.No.225 of 2007.

4. A joint trial was conducted in O.S.Nos.225 and 330 of 2007 filed by the respective parties. O.S.No.225 of 2007 was filed by Selli Gounder and O.S.No.330 of 2007 was filed by Masayappa Gounder.

5. The plaintiff in O.S.No.225 of 2007 is the first defendant in O.S.No.330 of 2007 and vice-versa. O.S.No.225 of 2007 is filed for permanent injunction restraining the defendants from either preventing the plaintiff’s use of item No.2 of the suit property or putting up any sort of construction in item No.2. O.S.No.330 of 2007 is filed for permanent injunction restraining the defendants from disturbing the plaintiff for erecting fence in the suit property and also for permanent injunction restraining the defendants from using the suit property. The trial Court decreed O.S.No.225 of 2007 and dismissed O.S.No.330 of 2007, against which Masayappa Gounder preferred First Appeal in A.S.No.43 of 2010 and Masayappa Gounder and Muthayal preferred A.S.No.44 of 2010, which were allowed, against which, Selli Gounder has preferred these Second Appeals.

6. The Second Appeals were admitted on 17.03.2017 on the following substantial question of law:

“Whether, Masayappa Gounder, the plaintiff in O.S.No.330 of 2007, is entitled to have larger extent of land than what is mentioned in Ex.B-1 sale deed, when admittedly, there is no dispute with regard to the extent of the land owned by both the said Masayappa Gounder (O.S.No.330 of 2007) and Selli Gounder, the plaintiff in O.S.No.225 of 2007, when it is settled law that the boundaries will prevail over the extent of land mentioned in the sale deed, in the absence of measurement of the land in question ?

7. As there was dispute between the plaintiff and defendant with regard to the suit pathway, both of them have approached the trial Court with different prayers in the respective suits as noted supra. It is not in dispute that they are the neighbours and the land to the extent of 10 cents is owned by Selli Gounder and 12 cents of land is owned by Masayappa Gounder. The issue that has cropped up is that in the property of Masayappa Gounder, the extent of land is not 12 cents, but much more. With regard to item No.2 of the suit property mentioned in O.S.No.225 of 2007, the excess land to the extent of 54 links, adjusting the use of Selli Gounder, has got to be treated as common pathway, as the extent of document to which the property has been purchased, referred to the extent and area which the plaintiff and the defendant own.

8. Mr.I.C.Vasudevan, learned counsel for the plaintiff-Selli Gounder submitted that the pathway exists, which could be seen from the sale deed, through which the plaintiaff has purchased the suit property of 10 cents mentioned supra in S.No.201, vide Ex.A-1 sale deed, dated 13.05.1960 from one Karuppa Gounder. According to the learned counsel, with regard to item No.2 of the suit schedule property, on the Eastern side of suit schedule property of item No.1 mentioned in Ex.A-1 supra, there exists common pathway from time immemorial and that has got to be used by both parties, namely Selli Gounder and Masayappa Gounder and their family members.

9. Mr.N.Mano