D. A. SAMARANAYAKE, Defendant-Appellant and U. RAN MENIKA Plaintiff-Respondent

018-NLR-NLR-V-80-D.-A.-SAMARANAYAKE-Defendant-Appellant-and-U.-RAN-MENIKA-Plaintiff-Respondent.pdf


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1977 Present:Pathirana, J., Ratwatte, J. and Wanasundera, J.D. A. SAMARANAYAKE, Defendant-Appellant andU. RAN MENIKA Plaintiff-Respondent.
S.C. 243/69 (F)-D.C. Kandy No. 7921/L
Misdescription of boundaries – Deed of Sale – Correct Assessment numbers – Falsademons!ratio non nocet – Evidence Ordinance Section 95.
Plaintiff and Defendant purchased lands on either side of Lady Anderson Road and wentinto possession of their respective lands.
The boundaries set out in the deeds relied on by the plaintiff apply to the land purchasedand possessed by the defendant while the deeds relied on by the defendant give theboundaries of the land purchased and possessed by plaintiff. The assessment numbers givenin the respective deeds are correct.
Plaintiff instituted an action against the defendant for declaration of title and ejectmentof the defendant from the land he was in possession.
The evidence and the findings of the Trial Judge indicated the allotment of land eachparty intended to buy and in fact purchased and was in possession of. The trial judge hadhowever held that title must pass according to the deeds and the description of the land asgiven in those deeds and as the deeds applied to the land possessed by the plaintiff, he heldthat plaintiff had title to the land.
HELD :
That as the evidence and the findings of the Trial Judge show that the assessmentnumbers given in the respective deeds are the correct assessment numbers of the allotmentof land each party intended to buy and in fact purchased and was in possession of, thedescription of the land by the boundaries was a misdescription which although it would notinvalidate the deeds, could be rejected or ignored.
The maxim falsa demonstralio non nocet which is embodied in section 95 of theEvidence Ordinance applied.
Per Pathirana, J.
“The Assessment numbers provide a definite and sufficient description of the land in therespective deeds of the plaintiff and the defendant of what was intendend to pass and thedescriptions in those deeds by boundaries are erroneous”.
.^^.PPEAL from the judgment of the District Court of Kandy.
H. W. Jayewardene with B. J. Fernando and Miss S. Senaratne for
Defendant-Appellant.
T. B. Dissanayake for Plaintiff-Respondent.
Cur. adv. vult.
December 1, 1977. Pathirana, J.
On either side of Lady Anderson Road within the Municipality of Kandy,are two distinct allotments of land facing each other. The land on the westwhich is depicted in Plans ‘Y’ of 1915, ‘Z’ of 1966 and ‘X’ of 1967, filed
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of record of which the Eastern boundary is Lady Anderson Road is the landand premises with buildings and plantations which at one time bore theassessment No. 53, thereafter bore the assessment Nos. 58 and 60 andpresently bear assessment Nos. 188 and 190. On the East of the said LadyAnderson Road facing premises Nos. 188 and 190 is the other allotment ofland which at one time bore the assessment No. 15 and thereafter assessmentNo. 18 and presently bears the assessment No. 31. The Western boundary ofthis land is Lady Anderson Road. The land to the East, that is, the land whichpresently bears the assessment No. 31, has a building which is described as arice depot.
The plaintiff-respondent instituted this action on 23.9.65 for a declarationof title, ejectment and damages against the defendant, for the premises in theschedule to the plaint, viz., the premises on the West of which the Easternboundary is Lady Anderson Road pleading title upon deed No. 1689 of1.12.59 (P9) and stating that since that date the defendant appellant was inwrongful and unlawful occupation thereof. He described this land in theschedule to his plaint as an allotment of land bearing assessment No. 18 atThalwatte, Lady Anderson Road in extent 0A.0R.34P bounded as follows
North by land belonging to Suramba
East by Lady Anderson Road
South by Lady Anderson Road
West by Gangaramaya
The land is depicted in plans, X, Y and Z.
The defendant-appellant denied that the plaintiff-respondent had title tothe land and claimed the land as having purchased it on deed No. 2504 of12.4.58(D7). The schedule to his answer refers to this land as‘Thimbirigahamulawatte’ of one laha paddy sowing extent, bearingassessment No. 53 and the new assessment No. 188 and bounded as follows:-
East and South by Road leading to Lewella.
West by Lady Anderson Road
North by ‘Weta’
This allotment of land at one time bore the assessment No. 53, thereafterthe assessment Nos. 58 and 60 and it presently! bears the assessmentNos. 188 and 190.
The deeds in the plaintiffs chain of title PI of 1-900, P2 of 1903, P3 of1910, P4 of 1914, P5 of 1915, P6, a mortgage bond of 1928, P8, mortgagebond of 1956 and P9 of 1959 on which deed the plaintiff purchased the saidallotment of land referred to by the boundaries as follows:
North by the land belonging to Suramba
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East by Lady Anderson Road.
South by Lady Anderson Road.
West by Gangaramaya.
The deeds in the chain of title relied on by the defendant D3 of 1896, D4of 1925, mortgage bond of 1925 (D5), D6 of 1958, the Fiscal’s transfer infavour of the plaintiff’s predecessor-in-title Ukku Banda and finally D7, thedeed No. 2502 of 12.4.58 on which Ukku Banda sold the said land to thedefendant gave the boundaries of the land as follows:-
East and South by Road leading to Lewella.
West by Lady Anderson Road.
South by ‘Weta’.
The deeds relied on by the plaintiff in regard to his title would apply tothe land on the West of which the Eastern boundary is Lady Anderson Road.The deeds relied on by the defendant for his title refer to the land on the Eastwhich has Lady Anderson Road as the Western Boundary.
It is not in dispute that from the date of the defendant’s purchase of theland on the West by D7 of 12.4.58 his tenant, a person calledHinniappuhamy occupied a house on this land till he was evicted by anaction instituted against him by the defendant who entered into occupationthereof in 1961. This land is described in the schedule to the plaint. It is alsonot in dispute that the plaintiff since the date of his purchase of the land onP9 of 1.12.59 is in occupation of the land on the East, that is the land onwhich the rice depot is situated of which the Western boundary is LadyAnderson Road.
On the title pleaded by both parties one Abdul Caffoor was at one timethe owner of the two lands. On his death, his brother Abdul Majeed becameone of his heirs and he obtained letters of administration to his estate on28.7.54 (P10). Abdul Majeed on mortgage bond No. 1270 of 1955 (D5)mortgaged the premises described in the schedule to the answer to one UkkuBanda who put the bond in suit and having obtained judgment purchased iton a Fiscal’s conveyance D6 of 11.4.58. Thereafter Ukku Banda on deedNo. 2509 of 1958 (D7) sold the premises to the defendant. This landadmittedly was in the occupation of Hinniappuhamy who was sued in theaction for ejectment by the defendant and after decree of ejectment, thedefendant came into occupation in 1961. Abdul Majeed mortgaged theinterests described in the schedule to the plaint to the plaintiff on mortgagebond No. 36669 of 1956 (P6) and thereafter sold it by deed No. 1689 of 1959(P9) to the plaintiff. This is the land on which the rice depot is situated.
The resulting position is that although plaintiffs deeds apply to the land tothe West of Lady Anderson Road he entered into possession of the land to
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the East of this road. The defendant, although his deeds apply to the lands tothe East of Lady Anderson Road, went into occupation of the land West ofLady Anderson Road.
The learned District Judge entered judgment for the plaintiff as prayed fordeclaring him entitled to the land described in the schedule to the plaint andejectment of the defendant, subject to the payment to the defendant ofRs. 3,000/- as compensation for improvement and a jus retentionis till thecompensation is paid. He took the view that no doubt both parties generallythought that they had purchased the lands they were in possession of on theirdeeds, so that the defendant was under the impression that he was the ownerof the land described in the plaint and possessed it as such while the plaintiffthought that he was owner of the land described in the answer and possessedit as such. He nevertheless came to the conclusion that whatever the partiesor their vendors thought or intended the title must pass according to thedeeds and the description of the land as given in those deeds. He, therefore,held that the plaintiff had title to the land described in the schedule to theplaint which was in the possession of the defendant.
The defendant appeals against this judgment and decree.
In my view, the learned Judge came to a correct finding when he held thatboth the plaintiff and the defendant thought they had purchased the land theywere in possession of on their respective deeds under the impression thatthey were the owners of the land they were in possession of. There is ampleevidence to support this finding. Abdul Majeed the vendor had categoricallyidentified the land to the East as the land he had sold to the plaintiff by P9 of1959. He had inventorised in the testamentary case of his brother AbdulCaffoor among other lands the tvyo properties, namely premises bearingassessment No. 31 described as a “rice depot and garden” and the otherpremises No. 58 and 60 described as the garden and two houses. Theinventory (P10) was filed by him on 2.3.55 in Testamentary Case D.C.Kandy No. T/1022 (PI 1). Prior to the plaintiff’s purchase of the premises byP9 of 1959 Abdul Majeed had by usufructuary mortgage bond'P8 of 1958mortgaged the premises bearing assessment No. 31 to the plaintiff which isthe land to the East of Lady Anderson Road. The boundaries given in thisdeed refer to the land to the West of the road. The plaintiff therefore was inpossession of premises No. 31 on usufructuary mortgage bond P8 of 1956froml956, that is at least 3 years before she purchased the same premises onP9 of 1959.
The plaintiff did not give evidence in this case. Her husband, R. N. PunchiRala, however, gave evidence on her behalf. He stated that he bought theland in the name of his wife, the plaintiff, from Abdul Majeed. AbdulMajeed had by mortgage bond D5 of 1955 mortgaged to Ukku Banda, thepredecessor-in-title of the defendant the premises described as premises
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“No. 53 now Nos. 58 and 60” which is the land to the West of LadyAnderson Road although the boundaries refer to the land to the East of the• road. Ukku Banda had put the bond in suit in D.C. 2410/MB and havingobtained judgment against Abdul Majeed the sale of the property was fixedfor 11.1.58. Ukku Banda became the purchaser as the highest bidder and byFiscal transfer D6 of 11.4.58 became the owner of the said land. One of thepersons who had bid at this sale was R. M. Punchi Rala (D2 of 8.2.58). Thesale would have been advertised and would probably have been conducted atthe premises namely premises Nos. 58 and 60 . The fact that R. M. PunchiRala, the husband of the plaintiff, had bid at the sale in 1958, nearly 22months before his wife purchased premises No. 31 by P9 of 1.12.59, andwhile she was in possession thereof on the usufructuary bond P8 of 1956,would clearly establish that the plaintiff knew that these premises were notthe premises of which she was in possession on the usufructuary mortgagebond P8 of 1956, which she subsequently purchased on P9 of 1959. Whenshe purchased premises No. 31 from Abdul Majeed on P9 on 1.12.59 theconsideration included the amount due to her on mortgage bond P8 fromAbdul Majeed.
Punchi Rala had also admitted in evidence that when the plaintiffpurchased premises No. 31 one Hinniappuhamy was occupying the premisesWest of the road and after he was ejected from the premises the defendantcame into possession. The defendant has produced receipts for payment ofrates for the premises he was in possession namely premises formerly No. 58and now 188 and 190. D9 and DIO were payments of rates made by thetenant Hinniappuhamy and Dll and D16 were payment of rates made by thedefendant in respect of these premises.
The resulting position is that, firstly, the boundaries of the deeds relied onby the plaintiff apply to the land possessed by the defendant while theboundaries of the deeds relied on by the defendant apply to the landpossessed by the plaintiff. Secondly, the assessment numbers of the premisesin the deeds in the plaintiff’s chain of title refer to the premises in fact in thepossession of the plaintiff while assessment numbers of the premises referredto in the deeds in the defendant's chain of title refer to the premises in fact inthe possession of the defendant. The learned District Judge havingascertained the intention of the parties without making any endeavour to findout which of the two conflicting descriptions in each of the sets of deeds wastherefore a false description or misdescription proceeded to decide the caseon the description of the land by their boundaries in the respective deedsignoring the assessment numbers. He, therefore, held that title must passaccording to the deeds and description of the land as given in those deedsand as the deeds applied to the land possessed by the defendant he held thatthe plaintiff had title to that land, viz., the land described in the schedule tothe plaint.
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Mr. Jayewardene, for the defendant-appellant, submitted that in the deedsin question there was sufficient description of what was intended to be sold,if one took into consideration the assessment numbers. The evidence and thefindings of the Trial Judge indicated the allotment of land each partyintended to buy, and in fact purchased and was in possession of. In thesecircumstances the description of the lands by the boundaries was a falsedescription or misdescription which although it would not invalidate thedeeds, could be rejected or ignored. He based his submission upon theprinciple of the rule expressed in the maxim falsa demonstratio non nocetwhich is embodied in section 95 of our Evidence Ordinance. He submittedthat where the description in a deed is made up of more than one part and^true and the other part is false, the false may be rejected. To findPUJP^mie or untrue extrinsic evidence is admissible to ascertain theintention of the parties. This principle would apply only to cases where thereis more than one description in the deeds. In the present case each deed hastwo descriptions. The question therefore is which description should beignored or rejected.
Mr. T. B. Dissanayake for the plaintiff-respondent, however, submittedthat in construing the terms of the deeds the question is not what the partiesmay have intended but what is the meaning of the words which they usedand in this case the express description in the deeds must prevail over theintention of the parties. There was no ambiguity in the deeds regarding theboundaries although the assessment numbers are wrong. The Court mustconsider the wrong assessment numbers, as a misdescription and ignore orreject them. Mr..Jayewardene’s submission on the contrary was thatboundaries in the deeds were a misdescription and therefore the descriptionby boundaries must be rejected.
The principle relied on by Mr. Jayewardene has been referred to in Jarmanon Wills, 5th Edition, page 742 quoted with approval by Lindley M. R. inCowen v. Truefitt, Limited,' where it is said that the rule means “that wherethe description is made up of more than one part and one part is true but theother part is false, there, the part which is true describes the subject withsufficient legal certainty the untrue part will be rejected and will not vitiatethe demise.” In that case rooms on the second floor of Nos. 13 and 14, OldBond Street, were demised, together with free ingress and egress for thelessee “through the staircase and passages of No. 13” to and from thedemised premises; There was no staircase in No. 13 leading to the demisedpremises, but there was a staircase in No. 14. It was held that on the evidenceonce it was ascertained that it was intended that the plaintiff should haveaccess to the rooms by a staircase and it was found that there is only onestaircase by which such access can be had it followed that it was right tomake an order giving her the use of that staircase, and accordingly the leasewas rectified by substitution of the staircase of “No. 14” for that of “No. 13”.This was more a case which deals with rectification of a deed but the broadprinciple is nevertheless applicable to the present case.
(1899) 2 Ch. 309 at 311.
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Halsbury’s Laws of England, 4th Edition, Vol 12, para 1519 also refers tothe rule:-
“When the premises are sufficiently described, as by giving the particularname of a close or otherwise, an erroneous additional description will berejected as a “falsa demonstratio”-, but if there is not this certainty in thefirst description (for example if it is expressed in general terms) and aparticular description is added, the latter controls the former and limits thegenerality of the earlier description, for where words are inserted whichthus form an essential part of the description of the subject-matter theycannot be rejected. In case of doubt whether words are a falsademonstratio or words of restriction they must be takenrestriction, for the law will not assume that the description isfalse. Of course the additional words may be neither words of restrictionnor of false description, but simply an alternative description whichexactly fits the premises already described. Here the further description isredundant.”
And para 1520 states:
“It follows from the first rule previously stated that, where the particularland is ascertained with certainty by part of the description, an erroneousstatement as to the mode in which title to the land is derived, or as totenure or area, or mode of user or name or parish or boundary oroccupation, will be rejected. The description which is rejected as falseneed not follow the true description. The whole description must belooked at fairly to see which are the leading words of description andwhich is the subordinate matter.”
In Fernando v. Christiana,2 Pereira J. although he saw no reason for theapplication of the maxim falsa demonstratio non nocet, explained themeaning of the maxim thus:
“This maxim means that as soon as there is an adequate and sufficientdefinition with convenient certainty of what is intended to pass by aparticular instrument, a subsequent erroneous addition will not vitiate it. Itapplies only when the words of an instrument, exclusive of the falsademonstratio, are sufficient of themselves to describe the propertyintended to be dealt with.”
This principle was also followed by Akbar J. in de Silva v. Abeytileke,3where the case of Cowen v. Truefitt. Ltd. (supra) was again cited withapproval at page 156:
“In the case of Eastwood v. Ashton (1915) A.C. 900 LordSumner quoted with approval certain English decisions as follows:—
2 (1913) I5N.L.R. 321.
’(1932) 33 N.L.R. 154.
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“My Lords, the principle on which this case was decided in the Court ofAppeal was thus stated by Parke J. in Llewellyn v. Earl of Jersey. As soonas there is an adequate and sufficient definition, with convenient certainty,of what is intended to pass by a deed, any subsequent erroneous additionwill not vitiate it; according to the maxim falsa demonstratio non nocet, towhich the words cum do corpore constat should be added, to do themaxim full justice. In Morell v. Fisher, where this principle is repeated, itis further said, “The characteristic of cases within the rule is, that thedescription, so far as it is false, applies to no subject at all; and so far as itis true, applies to one only”. It is thus stated by Romer J. in Cowen v.Truefitt, Limited.” In construing a deed purporting to assure a property, ifthere be a description of the property sufficient to render certain what isintended, the addition of a wrong name or of an erroneous statement as toquantity, occupancy, locality, or an erroneous enumeration of particularswill have no effect.”
Applying the principle set out in the above cases in the light of the findingof the learned District fudge, once it is ascertained what the true intention ofthe parties was and how they carried out that intention by purchasing therespective allotments of lands and entered into possession of them, it is thennot difficult to find out. which is the true description and which is the falsedescription or misdescription. In this case the plaintiff intended and had infact purchased and entered into possession of the land bearing assessmentNo. 31 which is the land to the East of Lady Anderson Road while thedefendant intended to purchase and having purchased entered into possessionof the Land bearing assessment No. 58 (now 188 and 190) which is West ofLady Anderson Road.
Mr. T. B. Dissanayake, however, submitted that when construing the deedthe question is not what the parties may have intended but what is themeaning of the words which they used. He cited Fernando v. Jossie.' In thatcase there was no conflict in the deed in question between the premises soldand the boundaries. What was sold was a boutique room bearing No. 5 andthe description was free from ambiguity as to what was sold, viz., theboutique room bearing assessment No. 5 with the undivided soil coveredthereby.
On an examination of the plaintiff’s deeds in respect of premises No. 18(now No. 31) from 1960 and the defendant’s deeds in respect of premises 53(then 58 and 60 and now 188 and 190) from 1896, it would appear that allpersons who purchased or otherwise dealt with these premises had ignoredthe misdescription of the boundaries in these deeds and acted on theassessment numbers.
Considering all the circumstances, I would hold that the assessmentnumbers provide a definite and sufficient description of the lands in therespective deeds of the plaintiff and the defendant of what was intended to
4 (1957) 58 N.L.R. 114.
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pass by the deeds and the descriptions in these deeds by boundaries areerroneous.
The learned District Judge has held the defendant has not acquiredprescriptive title to the land described in the schedule to the plaint. In view ofthe conclusion I have reached that the defendant and not the plaintiff isentitled to the land described in the schedule to the plaint, I would hold thatthe defendant and his predecessors-in-title have acquired prescriptive title tothis land. Although Abdul Majeed was the owner of the lands at one time,these were two distinct allotments of land and he was entitled to them onindependent title deeds from two different sources.
I, therefore, allow the appeal and set aside the judgment and decree. Theplaintiff’s action is dismissed. The defendant will be entitled to costs hereand in the District Court.
There is still the possibility that some unwary purchaser of any one ofthese lands may commit the error of buying the wrong land if he were to beguided by the misdescription of the boundaries and this in turn may meanfresh litigation. For this reason we would suggest that either the plaintiff orthe defendant should have the decree of this Court duly registered in theappropriate folios in the books kept under the Registation of DocumentsOrdinance in respect of the land described both in the schedules to the plaintand amended answer. Secondly, we would suggest that the plaintiff and thedefendant should in their own interests have the boundaries of the landsdescribed in their respective deeds rectified so that the plaintiffs deeds willbe described by the boundaries given in the schedule to amended answerwhile the defendant’s deeds will be described by the boundaries given in theschedule to the plaint, while retaining the assessment numbers and the deedsbe duly registered after rectification.
RATWATTE, J. -1 agree.
WANASUNDERA, J. -1 agree.
Appeal allowed.