1944 Present: Howard C.J. and Wijeyewardene J.

JAYAWARDENE, Appellant, and MALAKA, Respondent.

 55-D. C. Badulla, 7,270.

Deed-Sale on a Fiscal'* conveyance-Falsa demonstratio non nocet-Application of maxim.

Plaintiff claimed a small strip of land and the house standing thereon on a Fiscal's conveyance, which conveyed to him certain premises together with the buildings standing thereon, within certain well-defined boundaries, marked lot 45 in the plan. The evidence disclosed that there were buildings on the land, which had come down but that the house claimed by plaintiff was outside lot 45.

Held, that the plaintiff was not entitled to claim the house and that the maxim falsa demonstratio non nocet did not apply to the facts of the cage-

" Where the description is made of more than one part and one part is true but the other false, then if the part which is true describes the subject with sufficient legal certainty, the untrue part will be rejected and will not vitiate the devise; the characteristic of cases within the rule being that the description so far as it is false applies to no subject at all, and so far as it is true, applies to one only ".

APPEAL from a judgment of the District Judge of Badulla.

S. Nadesan, for defendants, appellants.

C. V. Ranawaka, for plaintiff, respondent.

Cur. adv. vult.

October 13, 1944. WIJEYEWARDENE J.-

This action was instituted to obtain a declaration of title to a small strip of land of the extent of 5.5 perches and the house standing on it. The District Judge held that the plaintiff was " not entitled to the land as it was the property of the Crown but was entitled to the house on it". The defendants appeal against that judgment.

Several years ago, one Appuhamy purchased a half share of 3 acres 2 rood 13 perches of Koloman Kandurutenne. Appuhamy sold a divided lot. 200 feet by 100 feet and that lot has devolved on the plaintiff who is now in possession of lot 46 in plan X which is given in that plan as of the extent of 1 rood 33 perches. That would be the correct extent of a lot 200 feet by 100 feet. The remaining interests of Appuhamy devolved oil Juan Naide who conveyed them to his wife,, the first defendant, and Punchiappu, one of his sons. By bond P 11 of 1926 the first defendant and Punchiappu mortgaged with Barnis Silva two properties: -

(1) a portion of land called Galapitiyagodapatana, and

(2)a half share of " Koloman Kandurutenne in extent 3 acres 2 roods 13 perches (exclusive of portion of this land in extent 200 feet in length and 100 feet in breadth) bounded .... on the south by road reservation .... together with the buildings standing thereon".

The bond was put in suit and at the sale held in September 16, 1939, in satisfaction of the mortgage degree, W. H. Perera purchased the first 

property and the plaintiff, the second property. The plaintiff, thereafter, obtained his Fiscal's conveyance P 5 of 3939. The mortgage decree, the sale notice and the Fiscal's conveyance follow bond P 11 in describing the property purchased by the plaintiff.

The extent of the land conveyed to plaintiff by P 5 is found on computation to be 1 acre 3 roods 6.5 perches. That is the exact extent of lot 45 in plan X. The southern boundary of the land is given in. P 5 and the connected documents as the road reservation, and the remaining boundaries given in these documents are the same as the Northern, Eastern, and Western boundaries of lot 45 as shown in Plan X. These facts prove beyond doubt that the property mortgaged by the first defendant and Punchiappu and ultimately purchased by the plaintiff does not include the road reservation. It was also admitted by the plaintiff's Counsel at the trial that "lot 48 stands on Crown reservation". There can be no doubt that by lot 48 Counsel intended to refer and did, in fact, refer to the building in question.. The plaint itself refers in paragraph 8 to the building as th