Sargunam @ Mahalakshmi vs V.

Narayanan on 25 March, 2011

In the result,

(i) The substantial question of law Nos.1 and 4 are decided to the effect that the first
appellate court is right in decreeing the suit by treating that the boundary shall prevail
over extent and also the other attending circumstances available on record.

(ii) The substantial question of law No.2 is decided to the effect that the first appellate
court was justified in decreeing the suit even though there was no prayer for declaration
of title, in view of the clinching evidence available on record.

(iii) The substantial question of law No.3 is decided to the effect that the plaintiffs
discharged their burden of proof by adducing clinching evidence as per the Indian
Evidence Act.

31. Accordingly, this second appeal is liable to be dismissed and the same is dismissed.
However, there shall be no order as to costs.

32. At this juncture, I would like to point out that sufficient time has to be granted to the
defendants to vacate and hand over vacant possession of the B schedule property to the
plaintiffs and accordingly, one year's time is granted from today to the defendants to
vacate and hand over vacant possession, subject to the filing of an affidavit by the
defendants within a month from this date and if no such affidavit is filed, the defendants
cannot avail the time granted supra.

(2002) 2 MLJ 612 [State of Tamil Nadu, rep. by its District Collector, Tirunelveli v.
Mohamed Nagib and others], certain excerpts from it would run thus:

"4.1. In my considered opinion, it is well settled in law that

the boundaries will prevail over the extent alone, but, not the Survey Number also. That
apart, the said principle is applicable only in a transaction agreed and entered between the
parties, but not in a case of unilateral approach.

4.3. The principle that the boundaries prevail over the extent, in my considered opinion,
shall not construe boundaries prevail over the Survey Number also, when the
respondents/plaintiffs themselves have stated in the plaint that they had purchased the suit
property, which is located only in T.S.No.230/1 and not otherwise. It may also be noted
that the respondents/plaintiffs had not chosen to seek an amendment that they had
purchased the suit property located in T.S.No.234 at all."

1984(2) MLJ 306 [Dina Malar Publications, a Tamil daily, reptd., by its Partner,
R.Krishnamoorthy v. The Tiruchirapalli Municipality, reptd., by its Executive Authority,
the Commr., and others], an excerpt from it would run thus:
"9. The property in question bears a subdivided town survey No.371/2, with an extent of
2,400 sq.ft. The property in question is not an unserveyed area or an area in respect of
which the extent is in doubt. In laying down the principle that
the boundaries should prevail over the extent, in the above decisions, the learned Judges
have applied the following principles:- (1) in case of doubtful or varying extents in the
documents of title relating to the property, boundaries should be preferred to the extent;
(2) Only in the absence of definite material to show the actual extent intended to be sold
the boundaries should outweigh the doubtful extent mentioned in the document; (3) If
the recitals in the documents and the circumstances of the case show that a
lesser extent only was conveyed than the area covered by boundaries, and there is clear
evidence as to the intention of the parties with reference to the extent conveyed, then
the extent should prevail over the boundaries. Bearing in mind the abovesaid principles,
we will have to examine the facts of this case."

(2011) 4 M.L.J. 744

S.Syed Abubakkar (died) and others v. Sardhar and contended that boundary shall
prevail over extent. That is the case where the suit was laid for specific performance of
an agreement of sale. The suit was decreed by the trial Court and the same was
confirmed in the appeal and the matter came before this Court by way of second appeal.
This Court, in the said judgment, has held that boundary shall prevail over extent and
the defendant is bound to sell whatever extent available within the said boundaries
specified in the agreement of sale in favour of the plaintiff. In such circumstances, I am
of the considered view that the said judgment may not come to the rescue of the
petitioner.