NOORDEEN LEBBE Appellant, and SHAHUL HAMEED, Respondent

082-NLR-NLR-V-49-NOORDEEN-LEBBE-Appellant-and-SHAHUL-HAMEED-Respondent.pdf


274
Noordeen I*ebbe v. Shahul Hameed.
1948 Present: Canekeratne and Basnayake JJ.
NOORDEEN LEBBE Appellant, and SHAHUL HAMEED,Respondent.S. O. 368—D. C. Kegalla, 3,297.
Sale—Two contiguous blocks—Separat description of both blocks—Reference to plan—Only one block depicted in plan—Recitals in deed—Which description to bepreferred.
C was the owner of two contiguous blocks of land referred to as the easternblock and the western block. At a sale in execution of a mortgage decreeagainst C, the blocks were separately put up for sale and bought by S.
The acutioneer’s conveyance described each block separately and went onto say “ which two lands are now forming one property and described asfollows in the figure of survey 2062 dated July 20, 1934,…. and
registered as two lands in C 123/134 and C 141/173 The plan depictedonly' the western block.
Held, that both blocks passed to the purchaser on the conveyance. Theaddition of an erroneous plan did not vitiate an adequate and sufficient definitionwith certainty of what was intended to pass by the deed.
CANEKERATNE J-—Noordeen Lebbe v. Sbahul Hameed.
275
-A.PPEAL from a judgment of the District Judge, Kegalla.
H. V. Perera, K.C.; with C. R. Gunaratna and L. G. Weeramantry,for the plaintiff, appellant.
jS. J. V. Chelvanayagam, K.C., with N. Kumar as ingh am and P. Nava-ratnarajah, for the defendant, respondent.
Cur. adv. vult.
February 20, 1948. CANEKERATNE J.—
This is an appeal by the plaintiff from a judgment dismissing hisactionin respect of a land, which formed one of the two blocks referred to indeed P12 dated September 25, 1943.
One Abdul Careem who was the owner of these two blocks mortgagedthem with one Seneviratne and at the sale in execution of the mortgagedecree, Xo. 10324 of the District Court of Kegalla, Seneviratne agreedto purchase the same. The heirs of Seneviratne executed a conveyance,P 12—which the plaintiff con tends conveyed both blocks. Tliedefendantwho appeal's to be a son of Abdul Careem claims one of these blocks-—thedisputed block — on deed D 3 dated November 6, 1943, executed by hisfather.
Thequestioniswhetherthedisputedblock is comprisedin andexpressedto be convoyed by the deed in favour cf the plaintiff. ' If this blockdid not pass to Seneviratne on deed P 10, the plaintiff’s action must fail.
It can hardly be denied that Seneviratne agreed to buy both blocksat the auction, sale and that consideration for both blocks was given bythe purchaser. That the auction purchaser intended to procure a con-veyance of both blocks is also unquestionable. The Court on June29, 1934, confirmed the sale and authorised the auctioneer to execute aconveyance of both blocks in favour of the purchaser. It was thuscompetent to the auctioneer to convey them to Seneviratne ; actuallyhe received no direction from the Court to include a description of thelands by reference to a plan. It seems clear that a mistake was madeby the surveyor who made the figure of survey referred to hereinafteror by the notary. It is possible, perhaps likely, that the survey or didnot have a copy of the decree or of the conditions of sale of both lotswith him at the time.
It is contended by Counsel for the appellant that the plaintiff becameentitled to both lots and he referred to the decision in Home v. Struben 1.Counsel for the respondent based his arguments chiefly on the decisionin Eastwood v. Ashton s. The Court must look at the conveyance in thelight of the circumstances which surrounded it in order to ascertainw hat was therein expressed as the intention of the parties. The landto be conveyed is described in the deed P 10 as follows, omitting what issuperfluous,—
(1) The entirety of Urulegodawatta …. containing in
extent two pelas in paddy sowing bounded on the east by the ditch ofWerellapotha Thambigewatta, south, west and north by ditches …
and registered in C 123/134.
1 (1902) A. C. 454.
(1915) A. C. 900.
276
CANEKERATNE J.—Noordeen Lebbe v. Shahul Hameed.
The entirety of Urulegodawatta together with the upstair buil-dings …. one pela in paddy sowing bounded on the east by thefence of the garden belonging to Asena Lebbe Marikar, by the fenceof the garden that belonged to Lebbe Saibo, Notary, and the ditch,south by the fence of the garden that belonged to Lebbe Saibo, Notary,west by the fence of the land belonging to Pipanchi Naide and fromthe fence of Kowilewatta to the fence of Ramasamigewatta, northby the high road …. and registered in C 141/173 and which twolands are now forming one property and described as follows in thefigure of survey No. 2062 dated July 20, 1934 .. .and registered
as two lands in C 123/134 and C 141/173.
There are certain guides in this deed towards identification of thelands conveyed1. The first is that there are two lands. The secondguide is that the first mentioned land, which I will hereinafter refer to asthe eastern block, is in extent two pelas, and the second mentioned land,which I will hereinafter refer to as the western block, is in extent onepela. Though the description by paddy sowing extent is not an absolutelyprecise measurement, it can be determined within a fairly definite limitsand most villagers in the locality would be able to show the extent : theevidence led shows that one pela is about § of an acre. Then one comesto the boundaries : the evidence shows thaton the east of the easternblockis Werellepotha Thambigewatta and that between the eastern and wes-tern blocks is a ditch. The western block is, according to the evidenceof the surveyor, within well defined boundaries, a fence on the south,a fence on the west, a ditch on the east and the Colombo-Kandy Road onthe north. Another guide is afforded by the eastern block being registeredin C 123/134, the western in C 141/173.
If the description in the Schedule didnot contain the text at the end,beginning with the words “ and which two lands …. ” and endin6
“ in C 123/134 and C 141 /173 ”, there could be no doubt that both blockswould have passed to the purchaser. It is admitted, and the evidencemakes it clear, that the land depicted in the plan corespond? onl toone of the blocks described earlier, the western block : no portion of theeastern block is included therein. The text at the end shows that thetwo lands no.v form one property, it shows also that the two lands aredescribed as follows in the figure of survey No. 2062 :—“ All that allot-ment of land ” : this description is, as a matter of fact, inaccurate for thefigure of survey does not depict two lands. With the deed and plan inhis hand could any competent person identify' on the spot the land intendedto be conveyed ? If he looked at the earlier part of the schedule hewould notice at once that one block did not reach as far as the main roadfor the northern boundary was a ditch or fence, he would notice thatone land was surrounded on two sides by definite boundaries and on theother side by the high road : if he then examined the plan, it would strikehim that the description therein was not consistent with the descriptionin the earlier part of the schedule. It is true that if he had only the planin his hand he could identify on the spot the parcel of land depicted therein,that is only the western block ; but this would hardly be a correct methodof ascertaining what was transferred by this deed. Where there are several
1 (1902) A. G. 454.
CANEKEBATSE J.—Noordeen Lebbe v. Shahul Hameed.
277
descriptions which, when evidence of surrounding facts is admitted, are notconsistent with each other, the Court must in every case do the best itcan to arrive at the true meaning of the parties upon a fair considerationof the language used and the facts properly admissible in evidence1.The description by reference to the plan when taken with the earlier partof the schedule is inaccurate and misleading. The descriptions containedin the earlier part of the schedule are certain and unambiguous.
The conveyance contains a recital to the effect that the land andpremises intended to be thereby assured were put up for sale by publicauction on Slay 24, 1934, by the transferor and that the highest bidderand purchaser was the transferee. There is a reference to the decree incase .No. 10324, to the confirmation of the sale by thie Court and an orderfor executing a conveyance in favour of the purchaser. The propertyis referred to in the recital “ as the lands and premises described in theschedule hereto ”. The schedule contains the descriptions previou, lyreferred to by me to wit, (1) “ The entirety of …. registered in
G 123/134”, (2) “The entirety of …. registered in C 141/173
and which two lands …. survey No. 2062 dated July 20, 1934,made by .. and registered as two lands in C 123/134 and
C 141/173 ”. But it becomes abundantly clear on a reading of thelanguage of the deed that “ the figure of survey No. 2062 dated July 20,1934,” could not have been part of the description of the lands andpremises put up for sale on May 24, 1934. Where there is an ambiguityin the operative part of an indenture recourse may be had to the recitalsto see whether they throw any light on the matter. The recital if properlyexamined refers to the eastern and the western blocks without anyreference to the figure of survey. The recital further tells an inquirerthat by this deed it is intended to assure the parcels of land put up forsale at the auction of May, 1934. One has then to see what was putup for sale at the auction. There were two lots offered for sale separately.The eastern block was put up for sale on the spot first, the bid of Senevi-ratne was accepted and he signed the conditions of sale No. 4744 (P3) ;next the western block was offered for sale on the spot. Seneviratne’sbid was accepted and he signed the conditions of sale No. 4745 (P4). Onreferring to the particulars in P3 and P4 it will be apparent that the landsand premises intended to be transferred were the eastern and westernblocks : P3 contains the same description as is to be found in lines 1 to 6of the schedule in P10 with a reference to the registration, and P4 thesame description a is to be found in lines 7 to 16 of the schedule with areference to the registration. No plan is introduced to show the positionof the properties. The only description consistent with the recitalis that contained in lines 1-16 of the schedule to deed P10. This des-cription ought therefore to be preferred.
The appeal is allowed. Judgment will thus be entered in favour of theplaintiff in terms of prayer (a), (c) and (d) of the plaint : the defendantrespondent will also pay the costs of appeal and damages at the rate ofRs. 20 per annum from the date of the plaint till possession is giveD.
(1915) A. C. 900.
278
BASNAYAKE J-—Noordaen Lebbt v. Shahul Hameed.
Baskayake J.
Oma.ru Lebbe Noordeen Lebbe of Mawanella brings this suit againstAbdul Careem Lebbe Shahul Hameed also of Mawanella to have himselfdeclared entitled to a land at Mawanella in the Kegalla District calledUrulegodawatta of 2 pelas paddy sowing extent bounded on the east bythe ditch of Werellepothatbambigewatta, south, west and ;u>rth by ditches,and for damages for being dispossessed of the land by the defendant.
The plaintiff claims the land bv right of purchase on deed No. 14101of September 25, 1943, attested by 6. C. H. Molligoda, Notary Public,(P 12) and also relies on a deed of rectification No. 14201 of November1, 1943, attested by the same notary (P 13). The defendant claims theland by right of purchase on deed No. 5745 of November 6, 1943, attestedby G. R. P. Wiekramasingha, Notary Public. Both parties claim tohave also acquired a title by prescriptive possession.
Nearly 12 issues were suggested by the parties and adopted by theCourt. The only question that arises for decision on this appeal iswhether the plaintiff is entitled to the subject-matter of this action by-virtue of the deed P 12. The learned trial judge has held against theplaintiff on this issue. Before examining the question in dispute it willbe useful to state the history of the plaintiff’s title.
By deed No. 256 of August 21,1919, attested by A. P. R. Goonawardena,Notary Public, (P 14), one Wanniyegedara Meera Lebbe Abdul CaderLebbe of Mawanella sold to one RatugurunnehelagegedaraTJsubu LebbeAbdul Carrim of Mawanella iorasum of Rs. 4,500the following lands :—
(а)The entirety of Urulegodawatta with everything thereon situated
at Mawana in Medapattuwa in Galboda Korale in KegallaDistrict, Sabaragamuwa Province, in extent 2 pelas paddysowing extent and bounded on the east by the ditch of Werella-pothathambigewatta on the south, nest and north by ditches.
(б)The entirety of Urulegodawatta together with the plantations and
tiled upstair buildings thereon situated at Mawana alias Mawa-nella in extent one pela paddy sowing and bounded on theeast by the fence of the garden belonging to Assana Meera Lebbeby fence of the garden that belonged to Lebbe Saibo, Notary, andthe ditch, on the south by the fence of the garden that belongedto Lebbe Saibo, Notary, on the west by the fence of the gardenthat belonged to Pipanchi Naide and from the fence of Kcvila-watta to the fence of Ramasamigewatta, and north by thehigh road, together with all rights thereto appertaining.
By mortgage bond No. 420 of May 27, 1930, attested by T. H. Fernando,Notary Public, (P 1), the said Ratugurunnehelege Usubu Lebbe AbdulCarrim mortgaged to Richard Perera Wijesingha Seneviratne, Superin-tendent of Minor Roads of Kegalla for a sum of Rs. 3,000 the two lands.purchased by him on deed No. 256 of August 21, 1919, describing themetes and bounds ol the two lands as described therein.
On February 7, 1933, Richard Perera Wijesinghe Seneviratne afore-mentioned instituted D. C. Kegalla Case No. 10,324 to recover the prin-cipal and interest due on mortgage bond No. 420. In the Scheduleto the plaint (P 7) he described the lands exactly as they had beendescribed in the mortgage bond.
BASNAYAKE J.—Noordeen Lebbe v. Shahul Hatneed.
279
In the decree for sale entered on March 2, 1933, (P 6) the descriptionof the lands in the mortgage bond and the plaint were reproduced. Thedecree went on to authorise the auctioneer as follows :—
“ and all the right, title, and interest and claim whatsoever of thesaid defendant, in, to, upon, or out of, the said several premisesmortgaged by the said defendant be sold by Mr. D. S. Wickramasinghe,Auctioneer, and the proceeds applied in and towards the payment ofthe said amount, interest and costs.”
Separate conditions of sale were executed in respect of each land, P 3in respect of the land of two pelas, and P 4 in respect of the land of onepela. P 3 and P 4 described the lands by their metes and bounds as set-out in the previous documents P 14, PI, and P 6. The plaintiff mortgagecreditor purchased the land of two pelas for Rs. 280 and the land of onepela for Rs. 1,530 and the auctioneer reported to Court accordingly.
The sale was confirmed and the auctioneer was authorised to executethe necessary conveyance. In this conveyance No. 4871, executed onSeptember 6, 1934, (P 10). the lands were described as follows :—
The entirety' of Urulegodawatta together with everything con-taining in extent 2 pelas in paddy sowing ; bounded on theeast by the ditch of Werellepothathambigewatta, south, westand north by the ditches situated at Mawana alias Mawanellain Meda Pattu in Galboda Korale in the District of Kegalla,Porvince of Sabaragamuwa ; and registered in C 123/134.
The entirety of Urulegodawatta together with the upstair tiledbuilding standing thereon of one pela paddy sowing ;bounded on the east by the fence of the garden that belongedto Assena Lebbe Marikkar, south by the fence of thegarden that belonged to Saibo Lebbe, Notary, west by thefence of the land belonging to Pipanehi Naide and fromthe fence of the Kovilewatta to the fence of Ramasamige-watta, north by the high road situated at Mawanaalias Mawanella aforesaid and registered in C 141/173.And which two lands are now forming one property anddescribed as follows in the figure of survey No. 2062 datedJuly 20,1934, made by K. B. Nugapitiya, Licensed Surveyor,namely, all that allotment of land called Urulegodawattatogether with the upstair and the other buildings standingthereon containing in extent three roods and twenty-sevenperches 3r. 27p. as per above figure of survey; and boundedon the north by the high road from Colombo to Kandy, eastby Urulegodawatta, south by Thambuluwawawatta, westby Siyambalagabamulawatta, Kovilewatta, Karmalawattasituated at Mawana alias Mawanella aforesaid andregistered as two lands in C 123/134 and C 141/173.
The passages set out hereinbefore sidelined X and Y respectivelywill hereinafter be referred to as description. X and description Y.Description X is the same as the description of the lands in all documentsrelating to them, prior to P 10, while description Y is an addition andoccurs for the first time in P 10.
X
280
BASNAYAKE J.—Noordeen Lebbe v. Shahid Hameed.
After the death in 1939 of Richard Perera Wijesinghe Seneviratne, thevendee on P 10, his heirs sold the lands to the present plaintiff OmaruLebbe Noordeen Lebbe by deed No. 14101 of September 25,1943, attestedby G. C. H. Molligoda, Notary Public, (P 12). This deed described thelands in exactly the same way as they are described in the conveyanceP 10.
The irreconcilable nature of descriptions X and Y appears to havebeen detected shortly after P 12 was executed, for, on November 1,1943, the parties to P 12 executed deed No. 14201 of November 1, 1943,attested by G. C. H. Molligoda, Notary Public, (P 13), the main object of•which appears to be to describe the lands as they -were describedbefore P 10 without the added description Y in P 10, which as alreadystated has been taken over to P 12.
It is not disputed that the description X which was the description usedin all previous documents was an adequate and sufficient description ofthe two Urulcgodawattas of one pela and two pelas in extent respectivelyand indicated with sufficient certainty what was meant to pass. Butit is contended by the defendant that the description Y excludes theUrulegodawatta of two pelas from the transfer and that it did not there-fore pass to the transferee. If the description X stood by itself withoutmore, there is no doubt that both the Urulegodawatta of one pela and theUrulegodawatta of two pelas would have passed thereunder. There isnothing in the instrument P lOorP 12to indicate that the description Ywas designed to reduce the extent covered by description X. On thecontrary the words “ and which two lands ” in Y make it clear that itsobject is to express in relation to a survey plan the description X. Butdescription Y has failed of its purpose. Not only is the plan erroneousbut the description therein is equally erroneous. The extent of bothlands is not three roods and twenty-seven perches as stated in descriptionY nor does the figure of survey No. 2062 of July 20, 1934, made by K. B.Nugapitij-a, Licensed Surveyor, contain both the lands described at X, afact admitted by Surveyor Nugapitiya himself and illustrated by hisplan 2795 of October 11, 1944, prepared on a commission issued by theCourt in these very proceedings.
It is settled law that any subsequent erroneous addition, as in thisinstance, will not vitiate an adequate and sufficient definition withcertainty of what is intended to pass by a deed. It is also now wellsettled that where a diagram or figure of survey contradicts the un-ambiguous text of the title it must give way to the text. A plan will notprevail over a description which does not require a plan to explain it, norwill inaccuracies prevail when the property is indicated with sufficientcertainty. The description Y must therefore yield to description X. Ihold that P 12 gives the plaintiff title to both the Urulegodawatta of onepela and the Urulegodawatta of two pelas.
For the reasons I have stated this appeal is entitled to succeed. Thejudgment of the learned District Judge is set aside and the plaintiff’sprayer is granted subject to the modification that damages should becalculated at the rate of Rs. 20 per annum as agreed by the parties. Theplaintiff is declared entitled to costs in both Courts.
Appeal allowed.