P L D 1965 Supreme Court 274 (PLP)

CORNELIUS 5, C. J.‑This is a certificated appeal by the plaintiff. the United Bank of India Ltd., from a judgment of a Division Bench of the Dacca High Court in a suit for a declaration, of title in and for possession of property described as under in the Kha Schedule of the plaint. This Schedule is reproduced below: "(Kha) Schedule property which has been mentioned in the sale certificate as purchased in the name of Mst. Aziran Nessa of Pabna. Within District Pabna, holding No. 495 and under Thana Pabna within Mouza South Ram Chandrapur bearing J. L. No. 69 Khatian No. 686 and therein recorded as Dag No. 8 together with a two‑storeyed building standing thereon with a tube‑well including the land underneath measuring 4 kattahs together with the garden therein standing in the name of Indu Probha Sarkar, wife of the judgment‑debtor which was auction‑sold in the Certificate Sale for Income‑tax and purchased by Mst. Aziran Nessa Bibi of Atua and taken possession of on 3‑1‑

50. Boundaries North ‑Anath Bandhu Ghosh and Bibhuti Bhusan Ghosh, West‑Renaka Bala Rai Chowdhurani, South‑Sanaullah Mia, East‑Babu Shyam Charan Rai, 4 (four) kattahs of land within the said boundaries." The plaintiff claimed to have bought this property in a Court auction in execution of a decree against one K. C. Bhoumick and his wife, Sm. Indra Prova (or Probha), obtained in a suit to enforce a mortgage effected by deposit of title deeds, on dates in 1942 and 1944. The decree was obtained on compromise, on the 6th April 1949, and allowed to the mortgagors a year's time to repay the debt. On failure to pay, the property was brought to sale and was bought by the plaintiff-Bank on the 2nd July 1950 for a price of Rs. 5,

000. It may be noted here that by the same purchase, the Bank acquired three properties, namely, (1) the property (which we find to be here in dispute) measuring four kattahs and carrying a jama of Rs. 3, (2) another property adjoining the first mentioned property to the east, with the same boundaries to north and south and measuring six kattahs, carrying a jama of Rs. 4‑8‑0, and (3) a property with different boundaries, carrying a jama of Rs. 2‑14‑

0. The prices of the two last mentioned properties were Rs. 5 000 and Rs. 5,060 respectively. The sale was confirmed by the Court on the 28th August 1950. Execution was taken out in 1953, and on the 18th June 1953, an order for delivery of possession of the three properties was issued to the Court bailiff, who returned it with a report dated the 7th July 1953 to the following effect, viz., there was standing on the 4 kattahs property, a two‑storeyed building, in which an E. B. Pox1ce Inspector was residing as a tenant; the contents of the writ of possession were made known to this person as well as to the general public; by way of delivery of possession, the bailiff attached a copy of the writ to a bamboo fixed to the northern side of the two‑storeyed building; the auction‑purchaser was represented at these proceedings, and acknowledged delivery of possession in writing. It seems that this building was let out to the Superintendent of Police, Pabna, who had accommodated an Inspector of Police in it. For some time, the Superintendent of Police had been paying the rent, Rs. 50 per month, to the respondent in the present appeal, Mst. Azirannessa Bewa, but after possession had been delivered to the Bank, payment was stopped and instead, the rent was, it seems, deposited with the Rent Controller. By a letter dated the 6th October 1953, the Superintendent of Police communicated this to the United Bank, adding that a large amount was in arrears by way of municipal tax, which should be paid. The Superintendent of Police undertook to remit the house rent provided the municipal tax was paid. It was in consequence of this intimation that the United Bank made enquiries and filed the suit out of which the present appeal arises, to which .; the aforesaid Mst. Azirannessa Bewa was the sole defendant. At first the suit was brought for a declaration and was valued at Rs. 4,200, but on a report by the Sarishtedar concerning the valuation, it was "provisionally fixed for Rs. 5,500" and the plaint was amended accordingly. Court fee was duly paid on a claim for possession, which was added by subsequent order with the qualification, "if necessary". The basis on which Mst. Azirannessa Bewa had been receiving rent from the Superintendent of Police appears from a sale certificate issued in her favour on the 3rd January 1950, which is Exh. C in the case and recites that in execution of decree passed by the Pabna Certificate Officer (which had been obtained against K. C. Bhoumick for arrears of income‑tax) the property had been sold at a public auction held on the 26th September 1949, and had been bought by Mst. Azirannessa Bewa for a cash price of Rs. 4,000 only. The description of the property in this certificate reads as follows‑.‑ "The two‑storeyed building standing on Dag No. 8 recorded in Khatian No. 686, J. L. No. 69 in Mouza South Ram Chandrapur appertaining to holding No. 49 under Thana Pabna and District Pabna together with one tube‑well standing on 4 kattahs of land together with 6 kattahs of land to its East and the garden inside butted and bounded on the North by Anath Bandhu and Bibhutti Bhusan Ghosh, on the West by Renuka Bala Roy Chowdhury, on the South by Md. Sanaullah and on the East by Babu Shyama Charan Roy." It is to be noted that this description differentiates between the four kattahs of land on which there was standing a two‑storeyed building and a tube‑well, from the six kattahs of land adjoining it to the East on which there was a garden, and reference to the description of the properties entered as items (1) and (2) in Schedule B to the plaint in the mortgage suit against the Bhoumicks brought by the Bengal Central Bank (being the predecessor‑in‑interest of the United Bank) will show with certainty that these two properties correspond with the two items of property measuring four kattahs and six kattahs respectively in Exh. C. They also correspond in detail with the first two items of property enumerated above, as the property which the United Bank bought in execution of the mortgage decree. This document also furnishes a clue to the two valuations placed on the suit by the plaintiff‑Bank. In the first instance the valuation appears to have been fixed on the basis of the price entered in Mst. Azirannessa Bewa's certificate, Exh. C. When later, the valuation was required to be. altered, this was done on the basis of the price paid for the four kattah piece of land by the United Bank at the auction purchase, and it was in relation to this valuation at Rs. 5,000 that Court‑fee on the claim for possession was also paid. It was within the knowledge of the Bank that for items (1) and (2) in Schedule B to its plaint in the mortgage suit, both of which were included in the auction purchase, it had paid Rs.5,000 for each property, and consequently if by the amendment to the suit against Mst. Azirannessa Bewa, possession of both properties had been sought, the valuation could not have been placed below Rs.10,

000. But as is clear from the description given in the Kha Schedule to the plaint in the suit against Mst. Azirannessa Bewa, possession was sought only of four kattahs of land within the boundaries mentioned which correspond with those stated in the defendant's certificate, Exh. C. There appears to be no difficulty in locating by reference to the plaint in this suit as well as the Schedule in the plaint under the mortgage suit and of the consequential sale certificate and writ of possession, and then reading them with Exb. C, that the four kattahs of land for possession of which the Bank was suing, lay between land belonging to the Ghoshs on the north, and land belonging to Sanaullah on the south, and starting on the west side from the boundary between this land and the land of Renuka Bala. When three boundaries are defined and the area enclosed is known, the fourth boundary is settled without difficulty. There is in the description of the property given in the Kha Schedule an element of doubt introduced by the use of the words "a two storeyed building standing thereon with a tube‑well including the land underneath measuring 4 kattahs together with the garden therein standing." But it is clear that the description is taken from Exh. C, where the garden is separately specified as standing on an adjoining area of six kattahs, and therefore not standing within the four kattahs, so that the words "together with the garden therein standing" are clearly without meaning, a fact made clearer still by the definite assertion at the end of the (Kha) Schedule that the claim was confined to 4 kattahs. The eastern boundary of the said garden is the land of Shyam Charan, but as has been pointed out, if four kattahs be measured between the same north and south boundaries, and commencing on the west with the boundary of the land of Renuka Bala, it would end at a place within the land of which the Ghoshes were the proprietors, and not at the land of Shyam Charan. Therefore, it seems plain enough that the ambiguities introduced by the use of the words "together with the garden therein" and the mention of the eastern boundary being the land of Shyam Charan do not stand in the way of the suit‑land being located with exactness, to correspond exactly with the four kattah piece of land separately specified in Exh. C. The suit being resisted on a number of grounds, the following findings were recorded by the trial Judge on questions which ;ire relevant to the present appeal. The contention was raised that the compromise decree obtained against the Bhoumicks was fraudulent and collusive. It was supported on the grounds that other properties besides those in the compromise were covered by the mortgage, which had been released. Only the properties in Pabna town had been retained. The properties released included land in villages in the Pabna District, and outstanding bills for sums due to K. C. Bhoumick for contract work done for the Provincial Government under the control of the Executive Engineer, Rajshahi (now in East Pakistan) and the Executive Engineers of Jalpaiguri and Cooch Behar now in India. The trial Judge held that these circumstances did not indicate: collusion, and that no specific fraud was alleged. The question was raised whether by the deposit of title deeds a valid and legal mortgage had been created in respect of the suit property, on the basis that the document evidencing the deposit was in itself the document or contract of mortgage and as such required to be registered in order to be effective in law. The trial Judge considered the wording of the two letters given by K. C. Bhoumick evidencing the fact of the deposit. The material words in these letters read as follows:‑ "This is to put on record that this day I deposited with you at your Head Office at Calcutta the documents specified in the Schedule thereto with intent to create an equitable mortgage upon all my estate and interest in the property to which such document relates for the purpose of securing the payment to the Bank on demand of all moneys now owing or which may hereafter be owing from me . . . . ." After examining a number of authorities, the trial Judge came to the conclusion that these letters represented a memorandum of a transaction of deposit of title deeds which had already taken place and as such required no registration to be admissible in evidence. (The deposit took effect as an equitable mortgage, under section 59, Transfer of Property Act, having been made in Calcutta). Rejecting the contention that the mortgage decree and the sale thereunder were not legal, and were not binding on the defendant, the trial Judge found that the rule of lis pendens as set out in section 52 of the Transfer of Property Act applied to the case. The purchase by the defendant under the certificate Exh. C of properties which were then the subject of litigation, i.e., the mortgage suit, was ineffective as against the decree obtained in that suit and the subsequent sale thereunder. In the result, the trial Court declared the plaintiff's title to the suit property, that is the property specified in the Kha Schedule, and decreed khas possession in favour of the plaintiff‑Bank. The trial Judge left the parties to bear their own costs. In the High Court, in appeal, the judgment and decree of the trial Court was set aside and the suit was dismissed with costs. The findings oil which the reversal is based are as follows : After 1.u,;YEl;y and elaborate statement and discussion of the evidence relating to the various recorded transactions between the pro prietors and Bhoumicks, between the Bhoumicks and the Bank, and those of the mortgage suit and decree, in relation to the defendant's certificate of title, the learned Judges came to the con clusion‑ "that the plaintiff has totally failed to prove that the suit land together with the buildings was mortgaged with the plaintiff and that the plaintiff auction‑purchased the suit land." The nature of the doubt is indicated by the observation immediately following which is:‑ "The plaintiff's certificate of sale shows a purchase of 4 kattahs of land within the specified boundary, whereas the defendant purchased in a certificate of sale 10 kattahs of land within the specified boundary together with the building standing on 4 kattahs comprised in 10 kattahs of land together with other appurtenants. The boundaries and area in the said two documents do not tally." The finding of the trial Judge on the point was held to be "mostly based on surmises." Some criticism was addressed to the circumstance that the plaintiff had not attempted "to relay these documents is the locality" and thus‑ "to locate the land of Khitish Chandra Bhoumick as per Exh. 7 of the kabullyat executed by his wife on the 7th June 1937 and to show how an area of four kattahs within the same boundary came to be 10 kattahs." Regarding the "letters of deposit" (as they may be styled) of the title deeds, the learned Judges held that each of these letters "is not a mere memorandum of previous mortgage but actually it contains the bargains between the parties." They held that each of these letters was a document creating a mortgage, and being unregistered, was inadmissible in evidence, and without effect in relation to the properties covered by the title‑deeds. Regarding the contention that the mortgage decree and the sale held thereunder were collusive, they noted that the defendant had alleged a mere fraud without giving particulars, but yet came to the conclusion that the contention of fraud "has some force in view of the particular facts and circumstances of the present case." These indications were found to be the following:‑ (1) that in the course of the mortgage suit, an order was made for appointment of a receiver and K. C. Bhoumick after making what was thought to be a show of resistance, later by his default, allowed a receiver to be appointed. It was noted by the learned Judges however that he had moved the High Court against the final order appointing a receiver, without success; (2) that the wife of K. C. Bhoumick was added as a defendant on the 19th March 1949, and subsequently a compromise decree was passed (this was on the 6th April 1949) giving a year's grace for payment; (3) that K. C. Bhoumick did not pay the decretal dues which were "nominal" within that year, and consequently the mortgage property was purchased by the Bank "for a paltry sum of Rs. 5,000"; (4) that by the compromise, only these properties in Pabna town were retained, while landed property in a village as well as bills recoverable from Government of high value were released; an outstanding bill payable at Rajshahi in Pakistan of the value of over Rs. 44,000 was recoverable in Pakistan. The learned Judges finally held that "the aforesaid facts conclusively go to show that the compromise decree in the mortgage suit and the sale were collusively brought into existence in order to avoid the liabilities under the two certificate proceedings amounting to Rs. 28,365‑6‑6 and the plaintiff has also fraudulently included in the present suit a property which was not the subject‑matter of the mortgage. We have heard Mr. Hamidul Haq Chowdhury on behalf of the appellant‑Bank, and Mr. K. Hossain has supported the judgment of the High Court on behalf of the respondent." We are clearly of the view that in reaching the opinion that there was inextricable confusion in the suit as to the property described in Schedule kha of the plaint, appearing from the documents produced, such that it was possible to hold that the Schedule kha property was not included in the mortgage, is not sustainable. It has already been indicated earlier in the judgment that when a piece of land is enclosed within four boundaries, if three of these boundaries are fixed, and the area of land is known, the fourth boundary can generally be fixed with certainty, and in this case, there was on the record ample evidence to indicate that that boundary was the boundary between the two pieces of land described in the defendant's certificate of title, Exh. C, as (1) the 4 kattahs on which there was a two‑storeyed building and a tube‑well, and (2) the 6 kattahs of land to its east with the garden inside. The land of Schedule kha in respect of which a declaration and possession were sought is in our opinion clearly identical with the 4 kattahs of land on which in 1950 there was standing a two‑storeyed building and a tube‑well, and which on the west was bounded by the land of Renuka Bala. The learned Judges have placed considerable weight upon their finding that. "the evidence of non‑mention of any buildings in the mortgage deed conclusively goes to show that at the time when the mortgage was created, no buildings were standing on the land." This finding can scarcely be supported. The deed of lease, Exh.7, dated the 7th June 1937, relates expressly to four kattahs of land bearing a jama of Rs. 3 and lying between boundaries which are on the west Renuka Bala's land, on the south Sanaullah's land and on the north and east khas land of the lessors. It is noteworthy that this kabuliayat relates exclusively to these four kattahs, providing an indication that this particular plot of land was severable having been separately dealt with from the other land of the lessors lying to the east. That land was dealt with in a subsequent deed of lease dated the 2nd May 1939, by another of the landlords, and here, the boundaries are given as being on the south land of Sanaullah, on the north and east khas land of the lessors, and on the west "homestead of the 2nd party," i.e., the wife of K. C. Bhoumick, who was already lessee of the four kattah piece of land lying to the east of Renuka Bala's land. In this deed, which is Exh. 7(d), the jama is given as Rs. 4‑8‑

0. It seems perfectly clear that these two pieces of land are identical with two pieces of land specified in the Schedule to the mortgage deed, and in the decree and sale certificate obtained upon that deed. It may be that in 1937, there was no building on the 4 kattah piece of land, but by 1939, this 4 kattah piece had become "homestead of the second party" and it may be presumed that by this time there was a habitable building standing upon it. The process of inference be which the trial Judge had located the land was forced upon him by the circumstance that no authenticated plan of the property in possession was filed by either party, and in our view, there were ample firm indications, provided by the documents which he examined, to support his conclusion. If the learned Judges felt there was serious difficulty, in locating the land, without the aid of plans, a proper course may well have been to require the parties to present such evidence. The case was clearly one in which there was a duty upon the High Court to reach a definite conclusion as to the identity of the property in suit, for a continuous series of transactions had taken place between the proprietors and the Bhoumicks in respect of precisely four kattahs of land of which the jama was precisely given, and a least three boundaries were equally precisely indicated, and the case was not one which could be allowed to fail on a mere conclusion of difficulty in locating the land. As we have said earlier, an ambiguity was created by the circumstance that in Schedule kha to the plaint while the extent of the land as given by boundaries covered the full 10 kattahs of land to which the defendant's certificate related, yet what was .sought was mere 4 kattahs "within the said boundaries". There were ample indications of a firm character on the record enabling the Court to identify the suit land as the piece of land covered by the kabullyat of the 7th June 1937. The case appears to us to fall clearly within the provisions of section 96 of the Evidence Act, applying to the resolution of ambiguities of language in documents, for there was ample evidence on the record to show which one of the "several things" covered by the 10 kattahs to which the description by boundaries in the Kha Schedule of the plaint could have applied, was meant when the plaintiff‑Bank claimed a declaration and possession in respect of "four kattah within the said boundaries". We read section 96 of the Evidence Act as indicating that a Court is not entitled to reject a claim merely because the document on which it is based suffers from an ambiguity, but the Court is required to clear up that ambiguity and thus ascertain the claim with exactness, provided that there be evidence sufficient for such purpose. We accordingly hold that the claim in the present suit is confined to the separate 4 kattah piece of land lying adjacent to Renuka Bala s land to its east. It is sufficiently described in the present plaint in item 2 of the Ka Schdule which sets out particulars of the property covered by the mortgage decree. We do not consider that in the circumstance suit, there was any occasion for throwing doubt upon the genuineness of the transactions between K. C. Bhoumick and the proprietors of the land, as evidenced by deeds of title which were deposited with the Bank by letters of the 17th September1942 and 7th September 1944, which are in very similar terms, the relevant statements being as follows:‑ (1) This is to put on record that‑ (2) this day I deposited with you with your Head mice in Calcutta the documents specified in the Schedule hereto‑ (3) with intent to create an equitable mortgage upon ,it my right, title, interest and estate in the properties to which such documents relate‑ (4) for the purpose of securing due re‑payment to the Bank on demand of all moneys now owing or which may hereafter be owing from me‑ and then there follows a brief catalogue of circumstances in which money might conceivably become due from K. C. Bhoumick to the Bank. The learned Judges in the High Court thought that these stipulations in the letter converted the document into "the bargain between the parties". Although they have made reference to two decisions of the Privy Council on the precise case question of the interpretation to be placed upon language used in letters of this kind, they have preferred not to set out the argument in either of those decisions at all, and have contented themselves with saying that the law is well settled that when such a document merely records an already completed transection it does not require registration but has effect to create an assurance to the extent of the title covered by the deeds. They also laid down and we say so, correctly, that the determination of this question in relation to any particular case must depend upon the facts and circumstances of that case. The principal judgments of the Privy Council on this question are the following, viz.:‑ (1) M. Subramonian v. M. L. R. M. Lutchman 28 C W N 1. (2) Sundarachariar v. Narayana Ayyar A I R 1931 P C 36. (3) Hari Sankar v. Kedar Nath Saha 43 C W N

806. In the first of these cases, the relevant words in the letter by which the security was deposited were as follows:‑ "We hand you herewith title deeds relating to (here tire properties are specified) please also hold this as further security against advances made to us." In coming to the conclusion that this memorandum was in fact the bargain between the parties, the Judicial Committee stressed particularly the use of the word herewith and the expression "hold this" and it is clear enough that the emphasis of these letters is to produce a relationship in praesenti, in other words, to create a legal relationship of mortgagee and mortgagor. A similar conclusion was reached in the case of Hari Sankar in relation to a document which in the words of the Judicial Committee was "found to contain all the essentials of the transaction" and this finding was based upon the circumstance that the memorandum actually set out that "it is hereby agreed and declared" between and by the parties that in consideration of the sums advanced, the title deeds shall be held as a security on the specified property and went on to speak of proceedings which might later be had "for the protection of this security" or "for procuring payment of the moneys hereby secured". The Judicial Committee found these were sufficiently clear assertions of a present transaction creating a legal relationship, for holding that the document, although it purported to be a mere memorandum, was in fact "an operative instrument and not merely evidential" and they held that "such a document must under the statute be registered". The third case, however, namely, Sundarachariar v. Narayana Ayyar was based on a memorandum bearing a very close resemblance to the letters in the present case. The memorandum there merely said:‑ "as agrees upon in person I have delivered to you the under mentioned documents as security." The question' arose whether from the circumstances attending the creation of the memorandum, it could be concluded that it was more than a record of a completed transaction. The Judicial Committee found that the memorandum recorded particulars of documents which "had been delivered as security"; that it "does not state what were the terms of the agreement" or in fact the nature of the transaction for which the deeds were deposited as security and they went on to observe:‑ "Even if the memorandum was to be given, the fact that the memorandum was prepared, signed and handed over to the mortgagee before the advance of the balance of the money to be secured by the deposit could not alter the nature and meaning of the document. It was and remained a list of the documents deposited and nothing more. I did not embody the terms of the agreement between the parties." The further observation of their Lordships which is reproduced below, contains expressions which find an echo in the language of tile letters in consideration in the present case. They said‑‑ "In this connection it may be observed that though an =agreement embodied in a written document requiring registration under section 17, Registration Act and not so registered cannot be proved by the written document . . . . . or by oral evidence . . . . . yet where there is no written agreement there seems no reason why the intent to create a security by deposit of title deeds under the exception provided for in section 59, Transfer of Property Act, should not be evidenced by written as well as by oral evidence." (The underlining* is ours.) They distinguished the case reported as Subramanian v. Lutchman (cited above) in coming to this conclusion as a case where the memorandum itself embodied the agreement between the d. parties. In our view, the letters here in question, fail within the principle enunciated in the case of Sundarachariar v. Narayana Ayyar, which we observe is not mentioned in the judgment of the High Court. There are no words in these letters which purport to create any relationship in praesenti. The mention of the deposit is in the past tense, i.e., "I deposited." There 'ire no words used to show that in praesenti the security was being, created, but it is said "I deposited . . . . . the documents with intent to create an equitable mortgage" and in the light of the observations in the judgment of the Privy Council last cited, the possession of such an intent at the time of deposit, being in the past, is capable of being proved by production of the document in evidence. It is indeed probable that the language employed in these "letters of deposit" is derived from the declaration of law by the Judicial Committee in the case of Sundarachariar, which (we say so with respect) is entirely correct. We are accordingly unable to sustain the finding of the learned Judges on the point: The grounds on which the learned Judges have found fraud and collusion in respect of the compromise decree in the mortgage suit and the subsequent sale, are in our opinion, speaking with respect, scarcely sufficient to sustain so strong a conclusion. It is obvious that K. C. Bhoumick resisted the appointment of a receiver right up to the High Court. The K impleading of his wife as a defendant conveys no sense of fraud, for certain of the properties were held by her in benami, and it was right that she should be impleaded so that the position of the Bank should be safeguarded. The fact that K. C. Bhoumick did not pay the sum specified in the mortgage decree of the 6th April 1949, and so avoid the necessity for a sale, can be explained by the fact that he had migrated to India at the Partition. The conclusion that the 4 kattahs of land which are the subject‑matter of this case had been bought by the plaintiff= Bank "for a paltry sum of Rs. 5,000" is hardly sustainable in view of the fact that at the certificate sale, only a year earlier, the defendant had bought not only this property, but the adjoining six kattahs (as well) for only Rs. 4,

000. Four kattahs of land are about 400 square yards and the price of Rs. 12‑8‑0 a square yard cannot be described as "paltry". The learned Judges appear to have thought that by releasing certain of the properties from the mortgage, an attempt was made to defeat the claim in the certificate proceedings on the basis of income‑tax. In our view, the opposite conclusion is the more reasonable one, for thereby those properties were made available to be taken in satisfaction of the mortgagor's other debts. As for the bills due from the various Executive Engineers, it is conceded in the judgment of the High Court that the sums due for work done in India were not recoverable in Pakistan, but it is found that the sum due in Rajshahi was so recoverable. As is well known, recovery of such debts incurred by the pre‑Partition Governments in India has. been greatly impeded on account of difficulties experienced by the Courts in applying the particular provisions in the Indian Independence (Rights, Properties and Liabilities) Order, 1947 to determine by which of the successor Governments they should be borne, and there was also a period during which liability for all such dues had appeared to be accepted by the Government of post‑Partition India. Therefore, in releasing these claims against the Government from their mortgage, the Bank took what appears to us to be an objective attitude, and could not be thought to have acted in any deceitful or fraudulent manner. In our view, the findings of the High Court upon which the judgment and decree of the trial Judge was reversed cannot be sustained, and since it is clear that the transaction in favour of the defendant is hit by the rule of its pendens, we allow this appeal and restore the judgment and decree of the trial Judge, at the same time specifying that the land to which the decree of the trial Court is confined, is the land measuring four kattahs specified in item 2 of the Ka Schedule of the plaint. The parties will bear their own costs in this Court as well as in the High Court. A. H. Appeal allowed.