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PETITIONER: SMT. ISHWARI DEVI

       Vs.

RESPONDENT: SMT. SARLA  DEVI & ORS.

DATE OF JUDGMENT14/12/1994

BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) SINGH N.P. (J)

CITATION:  1995 SCC  Supl.  (2)  86 JT 1995 (1)   175  1994 SCALE  (5)291

ACT:

HEADNOTE:

JUDGMENT: R.M. SAHAI, J.: 1.     The dispute in this appeal relates to  interpretation of  a sale deed. It is not disputed that one Churu  Ram  was the  owner  of the property in dispute. He executed  a  sale deed  on 28th December 1976 in favour of the  appellant  the relevant portions of which are extracted below:                    "And whereas the Vendor is the owner  and               in possession of a two storey building  called               ’Anand  Bhawan’ built in four sets  which  are               old and in dilapidated conditions over a  land               Khewat 1qo.32, Khatauni No.48,  Khasra  No.613               admeasuring 4 Biswas, Gair Mumkin, situated in               Kethu  No.7, Teh. & Distt. Shimla and  entered               into revenue records as per Jamabandi for  the               year 1970-71;               NOW THIS SALE DEED WITNESSETH AS UNDER:                     That  the Vendor, as per the above  sale               agreement,    has   transferred    his    land               admeasuring  4 Biswas, Khewat No.32,  Khatauni               No.48,  Khasra No.613 over which a two  storey               building  called  ’Anand  Bhawan’  is   built,               situated  in  Village Kethu, Tehsil  &  Distt.               Shimla  for  Rs.  13,000/-  (Rupees   Thirteen               Thousand only) with all its title,  ownership,               road   water,   airlight,   including    other               amenities,  fittings,  fixtures,  drains   and               other  rights  whatsoever the  Vendor  has  in               respect  of  the said land and the  house,  in               favour   of   the   Vendee   completely    and               permanently.                   The  possession  of the property  and  the               land  sold has been handed over to the  vendee               today.  The possession of one set is with  the               husband  of the vendee and the  possession  of               rest  of  the property is  given  through  the

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             tenants.  The  tenants  living  in  the  above               property  are - (1) Sant Ram, (2)  Salig  Ram,               (3) Bali Ram and (4) Amogh Chand." Prior  to construing the sale deed and finding  out  whether what was transferred was entire Anand Bhawan owned by Churu Ram  or  only 4 biswas of Khasra no.613 it is  necessary  to mention  few  facts  not  with a view  to  decide  title  of appellant but to emphasise that things were not as they have been  made out by the District Judge which has  resulted  in not only in grave error of law but even gross miscarriage of justice.  The appellant is the wife of Amogh Chand  who  was tenant  of  one of the sets and was  mentioned in  the  sale deed at no.4. The respondent is the daughter-in-law of  Sant Ram  who  was also tenant of one set and  was  mentioned  as no.l.  In’ 1979 the appellant filed a petition for  eviction of Sant Ram. It was contested by him. He denied ownership of the  appellant. Therefore, the appellant to prove her  title filed  the  sale  deed and jamabandi, that  is  the  revenue extract of 1970-71. The entry in it is as under: 177 "Khewat  Khautani  Name of  Name of  Khasra Posse-  Revenue  No.     No.       owner    culti-   No.            ssion                    with      vator                    address   with                              address 32      48        Chum        Self in      613   0- 4  0- 5                   Ram s/o     possession                   Ramdinu     with the                   Mall        permission         Lehri                   s/o         of owner.          Bhawan                   In                             O- 1                   posse-                         Bungalow                   ssion                          0 - 3                   owner                   Ganga Ram                   Manderja                   Khewat                   No.29                   Successor                   Shyamlal Deh." On this entry Sant Ram claimed that the area of Anand Bhawan was 7 biswas out of which 4 biswas was transferred in favour of  the  appellant. The Rent Control Officer held  that  the claim  was  based  on misapprehension as the  details  of  4 hiswas  mentioned in the Khasra was added up to submit  that total  area was 7 biswas. What is necessary to be  mentioned that Sant Ram never claimed that only a part of Anand Bhawan was  sold and the portion in his occupation continued to  be with Churu Ram or his successor. In 1981 the application for eviction was allowed, only, to the extent that Sant Ram  was found in arrears from 28.12.1976 to 31.8.1979 at the rate of Rs.86  p.m. But Sant Ram was probably aware that  the  total area  over  which the building was standing  was  7  biswas. Therefore  in  the  same year,  that  is  1980-81  something unexplainable happened. Apart from one extract repeating the entry  of  Jamabandi as it was in 197071 another  entry  was made  in  name of Churu Ram over Khasra  no.491.  The  exact entry is reproduced below: "Khautani Name of   Name of  Khasra Posse-  Revenue Remarks   No.     owner     culti-   No.    ssion           with      vator           address   with                     address 239      Churu       Owner        491   0 - 3   468          Ram         in                 Unauthorised

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        s/o         posse-             Bungalow          Ram         ssion.          Ritu Mal          Wasi Deh" 178 If  Churu  Ram  was owner how could he  be  in  unauthorised occupation.  The two do not go together. That is why to  put at  the  mildest the entry was purposive. It  is  surprising that  conscience of none of the courts below was stirred  by such entry and the District Judge or the High Court did  not care to ascertain as to how such entries came to be made  in the  revenue record and did not consider it  appropriate  to take  action  against the officials concerned. All  this  is being  said not because anything tums on it so far title  of the  appellant is concerned but only to emphasise  that  the courts below should have been more vigilant. 2.     Reverting  to the narration of facts Sant  Ram  being armed  with  entry  of  198081,  procured  probably  at  his instance,  obtained power of attorney from the two  sons  of Churu Ram who of course had nothing to loose and within  one month  as  holder of power of attorney he sold 3  biswas  in favour  of his daughter-in-law, the respondent. In 1987  the appellant  filed another eviction petition against Sant  Ram which  was  contested  and now ownership  of  the  flat  was claimed  with respondent.  The Rent Control Officer  allowed the  application and commented adversely against  Sant  Ram. Then  the respondent filed the present suit for  declaration that the two orders passed by Rent Control Officer were null and void and sought an injunction restraining appellant from interferring  in her possession.  The suit was dismissed  by the Trial Court. It was held that the sale deed in favour of respondent  was invalid. The oral and  documentary  evidence was rejected and recitals in sale deed of 1976 were held  to be  conclusive.  The Trial Court further noticed  that  when eviction  proceedings were started by the appellant  against another  tenant  he went to the length of denying  title  of appellant  and claimed that entire right and title of  Anand Bhawan  vested in respondent. In appeal the  District  Judge relying on evidence of Kanungo who had gone to demarcate the area  on  spot,  tax receipts and  report.  of  Commissioner allowed  the appeal.  It was held that since Churu Ram  sold only  four  biswas of Khasra No.613 and no  corrigendum  was issued  the sale of remaining area of three biswas or  Anand Bhawan  which  had  separate Khasra No.491 by  his  sons  in favour of respondent was valid.  The order was maintained by the High Court. 3.      If  the revenue extracts, particularly,  of  1980-81 recording  Churu Ram as owner in unauthorised occupation  of the  bungalow over 0.3 in Khasra no.491 would have  inspired any confidence or there would have been some doubt if it was a  correct and true depiction of the state of affairs as  it existed  on  spot we would have sent the case  back  to  the District Judge. But the circumstances and above all the sale deed  executed in 1976 arc so transparent that it leaves  no doubt that the order of the two courts below are  manifestly erroneous. No amount of evidence, oral or documentary, could demolish  the  sanctity of the sale deed executed  by  Churu Ram.  The  vendor after disclosing his title  mentioned  not only  the  details of property. but gave out in  detail  the extent  which  he was transferring. It  was  mentioned  that Anand Bhawan with four flats which were in occupation  of(l) Sant  Ram, (2) Salig Ram, (3) Bali Ram and (4)  Amogh  Chand were being sold and possession was delivered. The recital is clear  and  unambiguous.  The identity  was  established  by giving Khasra numbers, name of village and area as mentioned

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in ’ jamabandi.  Since entire Anand Bhawan 179 with  two  storeyed  building and four flats  was  sold  and handed over to the appellant the description of four  biswas was  an error which crept in due to its wrong  recording  in jamabandi.   When  the Anand Bhawan was  situated  in  seven biswas as it now transpires to be the mention of four biswas in jamabandi and its repetition in sale deed ’was  obviously mistake which could not recoil against appellant.  It is not the claim of respondent that Churu Ram was possessed of  any other property. 4.      In  construing  a sale deed the words  used  by  the vendor cannot be ignored on any supposition or  presumption. Where  the  property has been specifically identified  in  a deed any ambiguity or inconsistency arising out of it has to be disregarded. As explained earlier the recital in the sale deed is clear and unequivocal.  The vendor who was the owner of  Anand  Bhawan  intended  without  any  reservations   to transfer  the two storeyed building called Anand  Bhawan  in favour  of the appellant.  This could not be diluted  merely because the area was mentioned as four biswas. The appellant became owner of the entire Anand Bhawan and the entire  area stood vested in her. The erroneous recital in the sale  deed that Anant Bhawan was situated in 4 biswas would not in  any manner  affect  the  title of  the  appellant.  The  learned counsel for respondent attempted to sup-’ port the order  by placing  reliance on the report of the Commissioner and  the undertaking  given  by the appellant before  District  Judge that if the building was found situated in any other  Khasra than  Khasra No.613 then she would not claim any right  over it.   But what was lost sight of was that the appellant  was so sure due to description of the area in the jamabandi that it  must not have crossed her mind that there was a  mistake or  error  in  it.  Nor she could have  been  aware  of  the planning  of  Sant Ram who after  advancing  a  preposterous argument  on  the description of property  in  jamabandi  of 1970-71  in  column  no. 5 proceeded to  give  it  shape  by getting  3 biswas entered in name of Churu Ram in  the  same year  and then got an ex-parte report from the Kanungo  that Anand  Bhawan was situated in two plots.  The appellant  was not  aware of all this and, therefore, she appears  to  have agreed  for the appointment of a commissioner who when  went to  the spot and having found that the area being  7  biswas and 4 being entered in Khasra no. 613 and 3 in Khasra no.491 had  no option except to submit the report in favour of  the respondeat.  But  it  was  the duty of  the  court  to  have attempted  to  find out the truth by  sending  the  original revenue  records  and  find out if actually  there  was  any Khasra  no. 491 before 1980-81. Same was with  the  ex-parte report   of   Kanungo.   The  tax  receipts  too   mentioned appellant as owner of entire Anand Bhawan. In any case  even assuming  that 3 biswas of Anand Bhawan fell in  Khasra  No. 491   Churu  Ram  who undisputedly was the owner  of  entire Anand  Bhawan  having  transferred the  entire  property  in favour  of  the appellant the title passed to her  over  the entire  area  whether it fell under Khasra No. 613  or  491. The submission of the respondent, therefore, is liable to be rejected. 5.      In the result this appeal succeeds and  is  allowed. The orders passed by the High Court and the First  Appellate Court   arc  set  aside.  The  plaintiff  suit   filed   for declaration and injunction is dismissed. The appellant shall be entitled to her costs throughout. 181

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