Madhya Pradesh High Court
Tulsiram And Another vs Durgaprasad And Others on 16 August, 2001
Equivalent citations: 2001(3)MPHT469, 2002 A I H C 317, (2002) 2 MPLJ 435 (2002) 1 JAB LJ 151, (2002) 1 JAB LJ 151
ORDER S.P. Khare, J.
1. This is defendant's second appeal under Section 100, CPC. The following substantial questions of law were formulated by this Court by order dated 26-6-1998 at the time of admission of this appeal:--
(1) Whether the Lower Appellate Court was justified in rejecting the applications made under Order 41 Rule 27 of the Civil Procedure Code and also that made under Order 6 Rule 17 of the Civil Procedure Code ?
(2) Whether the finding of the Lower Appellate Court that the plaintiff has become owner of the suit land by virtue of adverse possession qua defendant is legal and proper ?
(3) Whether the finding of Lower Appellate Court that mistake occurred in mentioning the khasra number is borne out of the pleadings ?
2. The facts relevant for the decision of the question referred above are that Punna executed registered sale-deed dated 15-2-1957 in favour of plaintiff Durga Prasad. In this sale-deed the land sold has been described as Khasra No. 98 area 1.92 acres of village Banhat. There is a concurrent finding of fact of the Trial Court and the First Appellate Court that actual Khasra No. 93 was intended to be sold and Khasra No. 98 was inserted in the sale-deed on account of mutual mistake of the parties. Punna himself wrote a letter dated 27-6-1960 (Ex. P-8) stating therein that Khasra No. 93 was the subject matter of sale and not Khasra No. 98. It has also been concurrently held on the basis of documentary and oral evidence that on the remaining area of 0.61 acre of Khasra No. 93 (total area being 2.53 acres) the plaintiff has acquired title by adverse possession. The defendant Nos. 1 to 5 are heirs of Punna and they have sold the land in dispute to the defendant Nos. 6 and 8 Tulsiram and Mohanlal by registered sale-deeds dated 30-3-1984 during the pendency of the suit.
3. The Trial Court held that the plaintiff is Bhumiswami of the land Khasra No. 93 area 2.35 acres; the defendant Nos. 6 and 8 have not acquired any rights in this land on the basis of the registered sale-deed dated 30-3-1984 and therefore, the defendants have been directed to deliver possession of this land to the plaintiff. The first appeal filed by the defendants against the judgment and decree of the Trial Court has failed and they have now filed the second appeal.
4. Question No. 1:
In the First Appellate Court the defendants filed two applications -one under Order 6 Rule 17, CPC for amendment in the written statement and the other under Order 41 Rule 27, CPC for bringing on record certain additional documents. These have been rejected by the First Appellate Court. The application for amendment has been rejected on the ground that the material facts have already been pleaded by the defendants and therefore the proposed amendment is not necessary for determining the real question in controversy between the parties. In the opinion of this Court also the proposed amendment was unnecessary.
5. The application under Order 41 Rule 27, CPC has been rejected on the ground that the documents sought to be produced were mainly certified copies of Khasras and Khataunis and the mutation orders in the name of the defendant Nos. 6 and 8 on the basis of registered sale-deeds dated 30-3-1984 and these were unnecessary. A perusal of these documents shows that these were really not essential for deciding the real dispute between the parties. Most of these documents relate to the period after the year 1984 or recording the Khasra No. 93 in the names of the defendants and Khasra No. 98 in the name of the plaintiff. That is not in dispute. The real dispute was whether in the sale-deed dated 15-2-1957 executed by Punna in favour of the plaintiff Khasra No. 98 was wrongly mentioned in place of Khasra No. 93. The documents sought to be produced by the defendants before the First Appellate Court did not throw light on that point. The application under Order 41 Rule 27, CPC was rightly rejected. In this Court also the defendants have filed similar application along with certified copies of the mutation orders and Khasras etc. These are not material for the decision of the point in issue and therefore, this application is also rejected.
6. Question Nos. 2 and 3:
As already stated there is a concurrent finding of fact of both the Courts below that Khasra No. 98 has been stated in the registered sale-deed dated 15-2-1957 due to mutual mistake of the parties. That has been pleaded and proved. The most important evidence in this respect is letter dated 27-6-1960 (Ex. P-8) written by Punna who was the executant of the sale-deed dated 15-2-1957. In this document he has clearly written that Khasra No. 98 has been mentioned in the sale-deed by mistake and the land which has been sold is 1.92 acres of Khasra No. 93. This is an admission of Punna, the original vendor. An admission made by the opposite party is the best evidence on which a party can rely upon. Then there was the first written statement of the heirs of Punna in which it was admitted that such mistake had occurred. There are also entries in the Sansodhan Panji and the Khasras from the years 1963-64 to 1983-84 (Exs. P-1 to P-7) in support of the plea that the possession of Khasra No. 93 was actually given to the plaintiff and he continued in its possession. There was sufficient evidence to support the Finding on question of fact. Therefore, the finding cannot be said to be perverse or unreasonable. This finding cannot be permitted to be challenged in second appeal.
7. It has been argued on behalf of the appellant that in the registered sale-deed dated 15-2-1957 it was clearly written that the land bearing Khasra No. 98 was sold to the plaintiff and, therefore, in view of Sections 91 and 92 of the Evidence Act the plaintiff cannot be permitted to lead evidence on the point that Khasra No. 93 was sold to him. It is contended that no evidence can be admitted to contradict the terms of the document. The argument does not appear to be of any substance in face of Proviso (1) to Section 92 of the Evidence Act which carves out an exception to the general rule and that exception is that a "mistake in fact" can be proved.
8. The general rule is that there is exclusion of oral evidence by documentary evidence. The terms of a document should not be allowed to be varied, contradicted, added or substracted from. But there are exceptions incorporated in the provisos to Section 92 of the Evidence Act. Under the Proviso (1) oral evidence can be given to show that due to mistake in fact or law the written instrument does not correctly express the agreement which the parties had really entered into. The law permits in such a case to prove the mutual mistake. It can be shown that the contract is contrary to the concurrent intention of the parties. The oral evidence, in case of mutual mistake, can be led to vary the written contract. The mistakes contemplated in this proviso are genuine and accidental mistakes, just as the misdescription of the property.
9. If there is a mutual mistake as to the description of a piece of land in a registered mortgage-deed, oral evidence is admissible. (Kota China Vs. Kannekanti 31 IPC 671). Such a mistake can be pleaded by way of defence also. (Janardan Vs. Venkatesh AIR 1939 Bom. 151). The combined effect of Section 92 Proviso (1) and Section 26 of the Specific Relief Act, 1963 is to enable either party to prove a mistake without prior rectification of an instrument. A mistake relating to a survey number in a sale-deed can be permitted to be proved. (Rajaram Vs. Manik, AIR 1952 Nagpur 90, Bala Prasad Vs. Asmabi, AIR 1954 Nag. 328 and Rikhiram Pyarelal Vs. Ghasiram, AIR 1978 MP 189).
10. In the present case the plaintiff could be legally permitted to prove that in the sale-deed Khasra No. 98 was wrongly written in place of Khasra No. 93 and the finding of the fact of the two Courts being in his favour there cannot be any interference by this Court.
11. Similarly the remaining area of 0.61 acre of Khasra No. 93 also remained in actual possession of the plaintiff upto the year 1984. There is finding of the two Courts that the plaintiff has acquired title to that area by adverse possession. This finding is based on khasra entries and oral evidence coupled with admission in the first written statement. Therefore, the finding on this point is also not assailable in this appeal. That finding is legal and proper.
12. Through an application dated 22-7-2000 (I.A. No. 5947) under Section 100A, CPC the appellants seeks to raise one more substantial question of law on the point that the suit was barred by limitation under the Limitation Act, 1963 as no step was taken by the plaintiff for rectification in the sale-deed or for declaration that the land purchased by him is Khasra No. 93 and not 98 within three years. This plea of limitation was not raised specifically before the Trial Court and the First Appellate Court and, therefore, it cannot be raised in second appeal. Even on the face of it the suit could not be said to be barred by limitation. The plaintiffs title to the land bearing Khasra No. 93 was not challenged by the heirs of Punna and that came under the cloud for the first time when they attempted to alienate the land to the defendant Nos. 6 and 8 in the year 1984 and actually sold the same on 30-3-1984. The cause of action arose in the year 1984 and the suit cannot be said to be barred by limitation.
13. It is submitted on behalf of the appellants that the plaintiff is having Khasra No. 98 also with him because the mutation of that land is in his name. How can it be ? It is made clear that the plaintiff will have no right, title or interest in Khasra No. 98 and his name will be struck from the revenue records on Khasra No. 98.
14. The appeal is dismissed. The appellants will bear the costs of this appeal and that of the respondents. Counsel's fee be levied as per Schedule, if certified.
15. Second Appeal dismissed.