The boundaries described in the sale deed prevail over the extent of land, determining ownership in property disputes.

JUDGMENT

(Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code, against the decree and judgment of A.S.No.9 of 2008, dated 22.01.2009 on the file of the Principal Sub Judge, Tenkasi, against the decree and judgment of O.S.No.163 of 2005, dated 30.07.2007 on the file of the Additional District Munsif Court, Tenkasi.)

1. The unsuccessful plaintiff in O.S.No.163 of 2005 on the file of the Additional District Munsif Court, Tenkasi, is the appellant in this second appeal.

2. The appellant filed the said suit seeking the relief of declaration that the suit second schedule property belongs to her absolutely and for removing the construction put up by the respondent in a portion of the suit second schedule property which had been described as the suit third schedule. The respondent herein filed written statement controverting the plaint averments. The respondent also raised a counter claim seeking declaration that the first schedule of the written statement is a common pathway and that the construction put up by the appellant in the said common pathway has to be removed. The appellant's construction has been shown as the second schedule to the written statement. Based on the rival pleadings, the trial court framed the necessary issues. The plaintiff / appellant examined herself as P.W.1. Ex.A1 to Ex.A3 were marked. The respondent herein examined himself as D.W.1. Ex.B1 to Ex.B3 were marked. An advocate commissioner was appointed and his report and plan were marked as court exhibits 1 and 2. The surveyor's sketch was marked as court exhibit 3. After a consideration of the evidence on record, while the suit was dismissed, the counter claim was allowed. The appellant was directed to demolish the construction put up by her. Aggrieved by the same, the plaintiff filed A.S.No.9 of 2008 before the Principal Sub Court, Tenkasi. By the impugned judgment and decree dated 22.01.2009, the decision of the trial court was confirmed and the appeal was dismissed. The court exhibit No.3 was directed to be a part of the decree. Challenging the same, this second appeal came to be filed. The second appeal was admitted on the following substantial questions of law:-

“1. Whether the courts below have failed to consider the fact that no common passage was reserved by the vendor under Ex.A1 in between the property sold to the appellant / the plaintiff and the property retained by him, leading to a perverse finding that the common passage that branches from the East-West Kutralam-Tenkasi main road extends upto the southern edge of the plaintiff's property purchased under Ex.A1?

2. Whether the recitals found in the sale deed under which the respondent / the defendant purchased the property lying on the west of the plaintiff's property showing a common passage in between the two shall be binding on the appellant/the plaintiff?”

3. Even before commencing the arguments, the learned counsel appearing for the appellant filed a memo signed by the appellant that she would be content, if the constructions put up by her are not demolished. She had also agreed that the rest of the portion of the plaint second schedule, other than the staircase already put up by her, can be used as common pathway and that she also will permit the respondent herein to do the repair works as and when required on the southern portion of his property. This undertaking given by the appellant through her counsel is placed on record. In other words, notwithstanding the outcome of the second appeal, the appellant will adhere to this undertaking.

4. Coming to the merits of the matter, it is seen that the appellant Palaniammal had purchased her property earlier in point of time. One Mookka Mooppanar sold the property covered under Ex.A1 dated 06.11.1985 in favour of the plaintiff. The plaintiff had also been granted Ex.A2 patta. The four boundary description set out in Ex.A1 is as follows:-

5. The respondent herein purchased the property on 12.10.2000 from the legal heirs of t