Kerala High Court
Aliyar vs Raju V.Vayalat on 29 August, 2014
Bench: Antony Dominic, A.Hariprasad
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
TUESDAY, THE 9TH DAY OF FEBRUARY 2016/20TH MAGHA, 1937
RFA.No. 11 of 2015 (B)
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AGAINST THE JUDGMENTAND DECREE IN OS NO. 118/2013 of SUB COURT,
PERUMBAVOOR DATED 29-08-2014
APPELLANT(S)/DEFENDANT:
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ALIYAR, AGED 65
S/O.VADAKKEKUDY MEERAN, VADAKKEKUDY HOUSE, VALLOMKARA
RAYONPURAM P.O., CHELAMATTOM VILLAGE
KUNNATHUNADU TALUK-683 543.
BY ADVS.SRI.S.B.PREMACHANDRA PRABHU
SRI.K.B.RAJESH
RESPONDENT(S)/PLAINTIFF:
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RAJU V.VAYALAT, AGED 37,
S/O.V.T.JOSEPH, VAYALAT HOUSE, FORT KOCHI
FORT KOCHI VILLAGE, KOCHI TALUK, PIN-682 001.
BY ADV. SRI.K.A..SHAJI MATHEW (CAVEATOR)
BY ADV. SRI.S.VINOD BHAT(CAVEATOR)
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18.01.2016,
THE COURT ON 09-02-2016 DELIVERED THE FOLLOWING:
"C.R."
ANTONY DOMINIC & A.HARIPRASAD, JJ.
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R.F.A.No.11 of 2015
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Dated this the 9th day of February, 2016
JUDGMENT
Hariprasad, J.
This is an appeal by the defeated defendant.
2. Apart from the factual issues, the prime legal question arising for determination in this appeal is whether an assignment deed can be rectified under Section 26 of the Specific Relief Act, 1963 (for brevity, "the Act") without pleading and proving fraud or mutual mistake of the parties? Ancillary question is whether a decree declaring that the property shown in the plaint schedule is the property assigned to the plaintiff through Ext.A1 (the document sought to be rectified) will salvage the situation in favour of the plaintiff? Of course, other reliefs sought in the plaint are dependent on the findings on these issues.
3. Short facts pleaded in the plaint are thus: Respondent is the absolute owner of 22 cents of land in resurvey Nos.63/2 and 196 of RFA No.11/2015 2 Chelamattom Village and a double storied building bearing No.PMC/XXI/339. He purchased the property from the appellant as per Ext.A1 sale deed. The dispute in this case is centered around this property and the building. Respondent contended that he purchased the property from the appellant for a consideration of `52 lakhs, by availing a loan from the State Bank of Travancore, Thoppumpady Branch. In connection with the loan transaction, the respondent deposited original sale deed with the bank. Respondent further contended that immediately after the purchase, the appellant sought his permission to continue residence in the house situated in the property for three months in order to enable him to purchase a suitable land and building. Respondent acceded to this request and permitted the appellant to reside in the building. Even after three months, the appellant did not vacate. But he sought further time. That was also allowed by the appellant. In spite of various demands made by the respondent, the appellant refused to vacate the building and therefore, the respondent was compelled to initiate this action against the appellant. The suit, at its inception, was one for mandatory and prohibitory injunction reliefs. Thereafter an Advocate Commissioner was appointed by the court to identify the property. The Commissioner inspected the property with the help of Taluk Surveyor and submitted a report and plan. Subsequent to that the plaint underwent multiple amendments. Finally, the suit became one for RFA No.11/2015 3 rectification of Ext.A1 document, declaration of the respondent's title over the plaint property and building and also for prohibitory and mandatory injunction reliefs.
4. Appellant filed written statement and additional written statements to the amended plaint and vehementally contested the suit. According to him, the suit, in its original form as well as in the amended form, is not maintainable. Description of the plaint schedule property is wrong and misleading. No residential building as described in the plaint schedule was included in the property assigned by the appellant to the respondent. Execution of Ext.A1 is admitted by the appellant. But he would contend that an extent of 6.49 ares of land comprised in resurvey Nos.63/2 and 196 and an old shed therein were alone conveyed by the appellant to the respondent for a consideration of `10 lakhs. Before executing the sale deed, the respondent and the Branch Manager of the State Bank of Travancore approached the appellant and insisted that a consideration of `52 lakhs should be shown in the document in order to enable the respondent to avail a loan from the bank. Appellant agreed to execute a document as suggested by the respondent. Contention in the plaint that the respondent allowed the appellant to reside in the building as a licensee is totally false. There was only a shed in the property assigned by the appellant to the respondent. After purchasing the property, the respondent RFA No.11/2015 4 demolished the shed. Appellant is residing in a building situated in 8.9 ares of land comprised in old survey No.322/9. That land was purchased by the appellant as per Ext.A7. Document writer alone was responsible for causing mistakes in the boundaries in Ext.A1. The respondent has no right over the building situated in the property described in Ext.A7. Description of the plaint schedule property is not only false, but also misleading. The respondent availed a loan of `52 lakhs from the said bank and committed default in repayment. Respondent's attempt was to defraud the bank. According to the appellant, the suit was filed solely for the purpose of avoiding repayment of the loan amount availed from the bank. Properties belonging to the appellant and the respondent are lying without any demarcation. Respondent after purchasing the property from the appellant effected mutation and he obtained possession certificate relating to the property included in Ext.A1, wherein the title through Ext.A6 is traced. The respondent has no right or possession over the land described in the amended plaint and the same was obtained by the appellant from his father as per Ext.A7 document. The property sold by the appellant to the respondent was another one, purchased by him as per Ext.A6 document. Extent, survey number and anterior title deeds in respect of the property sold by the appellant to the respondent and the property retained by the appellant are totally different. The respondent is not entitled to get any of RFA No.11/2015 5 the reliefs claimed in the plaint. This is a false and vexatious litigation.
5. We heard Shri S.B.Premachandra Prabhu, learned counsel for the appellant and Shri S.Vinod Bhatt, learned counsel for the respondent.
6. The court below examined one witness each on the plaintiff's and defendant's side. Exts.A1 to A7 and B1 to B4 are the documents produced and marked on the side of the plaintiff and defendant respectively. Exts.C1 to C3 are the commissioner's plans and reports.
7. Shri S.B.Premachandra Prabhu, learned counsel for the appellant, vehementally attacked frame of the suit. According to him, the plaint falls short of the legal prescriptions for claiming rectification of a document and also for other reliefs. The contention of the learned counsel is that the court below seriously erred in not considering the important legal aspects for arriving at the conclusion. It is also contended that the court below failed to frame necessary and proper issues and therefore, it misdirected itself. Per contra, Shri S.Vinod Bhatt, learned counsel for the respondent contended that the court below correctly applied the legal principles and the judgment and decree are unassailable.
8. Before dealing with the evidence on record, we shall discuss the legal principles relevant for the decision of a suit claiming the reliefs of rectification of a document and declaration. Injunction reliefs sought are consequential thereto.
RFA No.11/2015 6
9. On going through the pleadings, we are of the definite view that the suit is predominantly one for rectification of Ext.A1 document and other reliefs flow from the main relief. Shri S.Vinod Bhatt raised a contention that the paramount question in the suit is regarding the title of the respondent over Ext.A1 property and if that is decided, other issues will follow. We are unable to agree with this submission for the reasons stated hereinafter. It is to be remembered that the suit in its original form was only for mandatory and prohibitory injunctions. Mandatory injunction sought was to direct the appellant to give vacant possession of the scheduled property to the respondent within a stipulated period. The prohibitory injunction sought was not pressed and not allowed by the court. As per order dated 20.02.2010 on I.A.No.1211 of 2009 and order dated 23.09.2013 on I.A.No.1537 of 2013, prayers for the rectification of document and the declaratory relief were allowed to be added. Admittedly, in Ext.A1 there are mistakes in the extent, survey number, boundaries and the details of the anterior title deeds. In these situations, it is clear that institution of a suit merely for the injunction reliefs will not serve the purpose of the respondent/plaintiff. Likewise, a suit for declaration that the plaint schedule property is the property that is included in Ext.A1 will also not help the respondent to get an effective and executable decree. It is, therefore, very clear that the patent mistakes in Ext.A1 will have to be RFA No.11/2015 7 rectified, otherwise the actual features available on the ground will be totally different from the descriptions shown in the respondent's title deed. That apart, a declaratory relief can only be claimed in respect of a specific immovable property capable of being identified correctly. Indisputably, the descriptions in the schedule to Ext.A1 and the recital in the document do not reflect the actual state of affairs. Therefore, the declaratory relief can be effectively granted only after rectifying the mistakes in Ext.A1. Viewing from this angle, we are of the view that the most important and primary relief claimable under such a situation is the rectification of Ext.A1. The appellant has not, and in fact cannot, raise any challenge against the title of the respondent in respect of Ext.A1 property as he himself had assigned the property. In fact, the appellant is estopped from denying the title of respondent in respect of Ext.A1 property as he had received consideration for assigning the same. But, the relevant question is what exactly is the property involved in Ext.A1 assignment deed? Admittedly, the respondent owns two adjacent properties, one purchased through Ext.A6 and the other, through Ext.A7. The question, therefore, is whether Ext.A1 takes in Ext.A6 property or Ext.A7 property? It is all the more important to note that the properties involved in Exts.A6 and A7 trace different titles.
10. When we see that rectification is the key issue to be addressed, a reference to Section 26 of the Act becomes important. It RFA No.11/2015 8 reads as follows:
"When instrument may be rectified.-(1) When, through fraud or a mutual mistake of the parties a contract or other instrument in writing (not being the articles of association of a company to which the Companies Act, 1956 (1of 1956) applies) does not express their real intention, then-
(a) either party or his representative-in-
interest may institute a suit to have the instrument rectified; or
(b) the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified; or
(c) a defendant in any such suit, as is referred to in Cl.(b), may, in addition to any other defence open to him, ask for rectification of the instrument.
(2) If, in any suit in which a contract or other instrument is sought to be rectified under sub-section (1), the Court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the Court may in its discretion direct rectification of the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value.
RFA No.11/2015 9
(3) A contract in writing may first be rectified, and then if the party claiming rectification has so prayed in his pleading and the Court thinks fit, may be specifically enforced.
(4) No relief for the rectification of an instrument shall be granted to any party under this section, unless it has been specifically claimed:
Provided that, where a party has not claimed any such relief in his pleading, the Court shall, at any stage of the proceeding, allow him to amend the pleading on such terms as may be just for including such claim."
11. First sentence in the Section shows that in order to get an instrument rectified, the foremost thing to be established is that through fraud or mutual mistake of the parties a contract or other instrument in writing does not express the real intention of the parties. Pleading and proof of fraud or a mutual mistake of the parties are mandatory requirements for obtaining a relief of rectification of an instrument. In this particular case, the plaintiff/respondent has no case that the wrong descriptions did occur in Ext.A1 on account of any fraud played by the defendant/appellant. No such pleading is raised in the plaint. It is clear from Order 6 Rule 4 of the Code of Civil Procedure that particulars like fraud, breach of trust, wilful default, undue influence, etc. have to be specifically pleaded. From the records it is borne out that no evidence RFA No.11/2015 10 relating to fraud was let in at the time of trial, rightly because there is no pleading. Therefore, that element in Section 26 of the Act does not arise in this case.
12. What is relevant here is the factum of pleading and proof of mutual mistake of the parties. It is pertinent to note that the expression "mutual mistake of the parties" is not defined under the Act. Section 2(e) of the Act says that all other words and expressions used in the Act, but not defined, and defined in the Indian Contract Act, 1872 have the meanings respectively assigned to them in that Act. We do not find a definition for "mutual mistake" in the Indian Contract Act as well. Section 20 of the Contract Act says that where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement, then the agreement will become void. That provision is not applicable here as nobody has such a case.
13. The expression used in Section 26 of the Act, relevant for our purpose, is "mutual mistake of the parties". Black's Law Dictionary (8th Edition - page 1023) defines "mutual mistake" as a mistake in which each party misunderstands the other's intent - also termed as bilateral mistake. Another meaning given to the expression is that it is a mistake that is shared and relied on by both parties to a contract. Stroud's Judicial Dictionary of Words and Phrases (7th Edition - Vol.I, page 471) says that RFA No.11/2015 11 "common mistake" is synonymous with "mutual mistake". Nevertheless, some jurists notice a marked difference between these two terms. Cheshire, Fifoot & Furmston's Law of Contract classifies mistakes into three categories (see - 12th Edition, Chapter 8 - page 229-230). We shall quote the relevant passage from the said seminal work:
"The classification adopted in this chapter must now be explained. If attention is fixed merely on the factual situations, there are three possible types of mistake: common, mutual and unilateral.
In common mistake, both parties make the same mistake. Each knows the intention of the other and accepts it, but each is mistaken about some underlying and fundamental fact. The parties, for example, are unaware that the subject matter of their contract has already perished.
In mutual mistake, the parties misunderstand each other and are at cross-purposes. A, for example, intends to offer his Ford Sierra car for sale, but B believes that the offer relates to the Ford Granada also owned by A. In unilateral mistake, only one of the parties is mistaken. The other knows, or must be taken to know, of his mistake. Suppose, for instance, that A agrees to buy from B a specific picture which A believes to be a genuine Constable but which in fact is a copy. If B is ignorant of A's erroneous belief, the RFA No.11/2015 12 case is one of mutual mistake, but, if he knows of it, of unilateral mistake."
14. In Section 26 of the Act, the expression "common mistake" is not used. Instead, the usage is "mutual mistake of the parties". However, there are reasons for viewing that the usage "mutual mistake of the parties"
occurring in Section 26 of the Act is synonymous with "common mistake"
as commonly understood under the English Law. So, it must be established by pleading and proving that the appellant agreed to sell and the respondent agreed to purchase the land through Ext.A1, which is included in Ext.A7 assignment deed. It must also be established that the parties so intended before executing Ext.A1 and the intention could not be translated into words in the document.
15. The principle underlying in Section 26 of the Act has been lucidly stated by the learned authors Anand and Iyer in the commentary on the Specific Relief Act, 1963 (13th Edition, page 789) in the following words:
"The actual expression of a thought very often fails to express the whole thought, sometimes more may be expressed, sometimes less and sometimes; sometimes totally different may be expressed. When parties have come to contract, but have failed to express themselves correctly, and the mistake is a real one and mutual and can be established by RFA No.11/2015 13 satisfactory proofs, a court of equity, will reform the written instrument, so as to make it conformable to the precise intent of the parties. The real intention may have been misrepresented in writing, either by mutual mistake or fraud. Equity affords relief in either case, in faith and confidence in the formation of contracts."
16. It is needless to restate that the courts exercising power under the Act have both legal and equitable jurisdictions. It is common knowledge that in our country we do not have Courts of Equity and Law Courts separately. The Act confers equitable jurisdiction on the civil courts for granting specific reliefs.
17. Essentials for claiming rectification of an instrument, as revealed by the precedents, can be summarised. Firstly, the relief will not be granted unless a completed agreement is reached prior to the written agreement, which is sought to be executed. In other words, if the negotiations leading up to the execution of the document were vague and inconclusive or if it is impossible to ascertain what was the intention of the parties and what they really meant, then the challenged instrument can only be said to represent the agreement that has been concluded. If there is no antecedent agreement proved, upon which a rectification can be based, the relief cannot be granted. Secondly, both the parties must have RFA No.11/2015 14 intended that the exact term of the prior agreement should be reduced to writing and this intention should remain unchanged up to the moment of the actual execution of the instrument. That is, if it is proved that the parties subsequently changed their original intention and that the instrument finally represents the true intention of the parties, it becomes fatal to a suit for rectification. Thirdly, the evidence relating to mistake common to both the parties must be clear and the burden of proving this lies on the party praying for rectification. It is also settled that the mistake should be obvious and not a mere probability. Fourthly, a party should seek rectification of literal mistakes, so as to enable the parties to act according to their intentions already revealed clearly and unequivocally, so as to prevent them from nullifying their prior agreement.
18. It is well settled that the condition precedent for claiming rectification is the existence of a valid and complete contract. It is equally settled that there can be no rectification where there is no prior agreement with reference to which the rectification has to be done.
19. Learned counsel for the appellant/defendant relied on Siddique & Co. v. Utoomal & Assudamal Co. (AIR 1946 Privy Council
42) wherein Section 31 of the Specific Relief Act, 1877 was interpreted. It reads as follows:
"In order to obtain rectification of an RFA No.11/2015 15 instrument under S.31 it must be proved that it was through a mutual mistake of the parties that the instrument in question did not truly express the intention of the parties; and the duty of the Court, before it can rectify, is to find it clearly proved that there has been mistake in framing the instrument, and it must ascertain the real intention of the parties in executing the instrument. On being satisfied of those two elements, it is in the discretion of the Court to grant rectification."
Another decision relied on by the learned counsel for the appellant is State of Karnataka v. K.K.Mohandas (AIR 2007 SC 2917). Facts in the above decision have no similarity with that of the case on hand. In paragraph 9, the Supreme Court observed that in the absence of any foundation in the pleadings laid by the plaintiffs for establishing a ground for the grant of relief of rectification, the mere adding of a prayer by way of an amendment could not be considered sufficient to grant the relief. These observations are squarely applicable to this case as we do not find any additional facts added to the plaint justifying a claim for rectification of Ext.A1. In Joseph John Peter Sandy v. Veronica Thomas Rajkumar (AIR 2013 SC 2028), the Apex Court observed that Section 26 of the Act has a limited application, and is applicable only where it is pleaded and proved that through fraud or mutual mistake of the parties, the real intention of the RFA No.11/2015 16 parties was not expressed in relation to an instrument.
20. Now, the legal requirement to claim a relief of declaration under Section 34 of the Act can be considered. Section 34 of the Act clearly shows that it is a discretionary relief grantable by the courts based on equitable principles. Sum and substance of Section 34 of the Act is that any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right. In that event, the court may in its discretion make therein a declaration that the plaintiff is so entitled. Facts in this case unequivocally show that the appellant/defendant is precluded from denying the title of the respondent/plaintiff as he himself sold the property included in Ext.A1. In the written statement filed by the appellant, we find no denial of title in respect of the property included in Ext.A1. Further, the right to get a declaration, as stated above, is directly dependant on the result of the respondent's right to get rectification of Ext.A1.
21. With respect to injunction reliefs also, the same principles are applicable. It is well established that a decree of injunction can be granted by a court only in respect of a specific immovable property on proving the grounds mentioned in the Act. In other words, any decree passed by a court shall not suffer from vagueness or obscurity, leaving the parties or their successors to guess as to what was the property in respect of which a RFA No.11/2015 17 decree for permanent prohibitory injunction or mandatory injunction had been granted. Viewing from any angle, we are of the view that the respondent's entitlement to claim the rectification of Ext.A1 is the crux of the matter.
22. Now, we shall turn to the evidence. As mentioned above, there is no pleading in the plaint that Ext.A1 was executed by the appellant/defendant by playing fraud on the respondent/plaintiff. Also we do not find any relevant plea to hold that there was mutual mistake of the parties which led to the wrong descriptions in Ext.A1. Going by the legal requirements, it should have been pleaded in the plaint that the parties had agreed to deal with a property having boundaries as shown in Ext.A1 and the extent, survey number, derivation of title, etc. as shown in Ext.A7. Further, it should have been pleaded that the intention of the parties was not correctly reflected in the assignment deed. In spite of repeated amendments made to the plaint, the material facts pleaded in the plaint remain the same as in the original plaint filed for injunction reliefs. As stated above, the respondent chose only to amend the reliefs without adding any material fact for justifying his claim for rectification and declaratory reliefs. Therefore, we are of the definite view that the plaint do not conform to the legal standard required in a suit for rectification of an instrument or for a declaratory relief. The amendments were made in RFA No.11/2015 18 consonance with the commissioner's plan and report. Ext.C1 is the report and Ext.C1(a) is the plan submitted by the commissioner in accordance with the survey demarcations. Those documents are relevant. Respondent claims the yellow coloured property shown in Ext.C1(a). Boundary descriptions in Ext.A1 tally with the yellow coloured property in Ext.C1(a), but the extent, survey number and the description of previous title deed do not match. Ext.A7 is of the year 1992. It can be deduced from Ext.A7 and the commissioner's plan that the canal road, seen as the eastern boundary in the plan, must have come into existence subsequent to Ext.A7. In other respects, Ext.A7 tallies with the descriptions of the yellow coloured property in Ext.C1(a). Ext.A6 is of the year 1985. If we look into the boundaries in Ext.A6 and the yellow shaded property in Ext.C1(a) plan, it can be seen that the boundaries do not match. Not only that, the extent of property included in Ext.A6 is lesser than what is shown in yellow colour in Ext.C1
(a). Further, survey number is also different. From the documents and the commissioner's report and plan, what could be discerned is that the property included in Ext.A7 is shown in yellow colour and the property covered by Ext.A6, in blue colour in Ext.C1(a) plan. Commissioner, as per the descriptions in Ext.A1, identified the blue coloured property, lying on the west of the yellow coloured property, as the one included in Ext.A1. Blue coloured property in Ext.C1(a) plan is in re-survey Nos.196 and 63/2. Total RFA No.11/2015 19 extent of the property is 6.49 ares. Survey number and extent shown in Ext.A1 exactly tally with the commissioner's identification in respect of the blue coloured property in Ext.C1(a). However, the boundaries shown by the commissioner in the plan do not tally with the descriptions in Ext.A1.
23. Learned counsel for the respondent strongly contended that the court below rightly applied the legal principle that in the matter of identification of a property, boundary has to be given precedence over other features like extent, survey number, etc. To buttress the said contention, decisions were cited before the trial court. Well settled is the legal proposition that for identifying an immovable property, features which are stable and decisive and which are unlikely to be mistaken by the parties will have to be preferred over other features. This Court in Ibrahim Koyakutty v. Varghese Varghese (1951 KLT 117), Chacko Joseph v. Varghese Markose (1957 KLT 485) and Savarimuthu Nadar Chellayan Nadar v, Kanakku Kali Pillai Padmanabha Pillai (1957 KLT 825) has stated that normally boundaries should be preferred over features like extent, survey number, etc. This proposition is indubitable. However, it has to be remembered that the guidelines therein are applicable only in a suit where primacy is to be given to the identity of the property and only where the court feels that without resolving the identity dispute, no effective decree could be passed. Instances are the suits for recovery of possession RFA No.11/2015 20 on the strength of title, fixation of boundary, prohibitory and mandatory injunction reliefs, etc. But, the case on our hand is one for rectification of an instrument, said to be not reflecting the real intention of the parties manifested at the time of prior agreement. For claiming such a relief, either fraud or mutual mistake will have to be pleaded and proved. Without discharging that burden, no plaintiff can succeed by proving only that the boundaries shown in the document sought to be rectified tally with those of another property of the assignor.
24. Oral evidence adduced by PW1 and DW1 also do not clinch the issue. DW1 has clearly stated that what was intended to be sold through Ext.A1 is the property covered by Ext.A6. According to him, the document writer committed a mistake by showing wrong boundaries in Ext.A1. He has a further case that the plaintiff deliberately included the descriptions of the defendant's house in Ext.A1 schedule, to defraud the bank (State Bank of Travancore). In cross-examination, DW1 did not make any admission on which the respondent could take an advantage of. However, the appellant also could have sought a rectification of Ext.A1 by virtue of Section 26(1)(c) of the Act. Failure to do so by him will not give any benefit to the respondent.
25. PW1 is the respondent. He had the responsibility to plead and prove necessary aspects for claiming a decree for rectification of Ext.A1, RFA No.11/2015 21 declaration and the injunction reliefs. In cross-examination, PW1 stated in the first sentence itself that he was unaware as to what was the extent of the property purchased by him from the appellant. He admitted that the property shown in Ext.A1 had been mutated to his name and he payed basic tax for the same. Further, he obtained a possession certificate in respect of Ext.A1 property, which is marked as Ext.B2. PW1 admitted that he had availed a purchase loan from the State Bank of Travancore and thereafter he purchased Ext.A1 property. Even though PW1 deposed that he did not create a mortgage in respect of the land in Ext.A1 in favour of the bank and the house in the property alone was given in equitable mortgage, we are unable to accept that contention in the absence of any documentary evidence. It will be highly improbable to think that the bank had taken an equitable mortgage in respect of the super structure alone, without creating a charge on the land. PW1 made a fatal admission that he did not scrutinise the anterior documents before purchasing Ext.A1 property. According to him, the legal advisor of the bank examined the previous document. He has not been examined in this case. Suggestion by the counsel for the appellant/defendant that PW1 demolished an old house in the property included in Ext.A1 is denied by him. When PW1 was cross-examined with reference to the extent of the property, he deposed that he only knew the fact that the building purchased by him was having RFA No.11/2015 22 an area of 2500 sq. ft. He was unaware of the extent of the property. Considering the pit falls in the deposition of PW1, along with the lack of material pleadings, we are of the view that the respondent/plaintiff is not entitled to any of the reliefs claimed in the plaint. The court below did not frame proper issues in the case. Attention of the court below was riveted on the description of the building shown in Ext.A1. Admittedly the appellant is residing in the house. There is no reliable material produced by the respondent to establish that the appellant's residence in the disputed house was on account of any permission. The court below did not correctly appreciate the pleadings and the evidence. Considering the preponderance of probabilities, we are of the view that the appellant's case is more probable than the respondent's case. To crown all the above, absence of material pleadings required for seeking rectification of an instrument and declaration and lack of proof thereof can only lead to dismissal of the suit. Court below failed to appreciate the disputes involved in the case from the correct perspective. It over emphasised on the boundary descriptions and mentioning about the building in Ext.A1. The court below did not notice the importance underlying in the incongruity in tracing anterior title in Ext.A1 with reference to Exts.A6 and A7. It further failed to take note of the proposition that merely on proving the boundaries in a suit of this nature, a plaintiff cannot succeed without satisfying the essential legal requirements. RFA No.11/2015 23 We are, therefore, of the view that the judgment and decree passed by the court below is indefensible.
Resultantly, we allow the appeal. The impugned judgment and decree passed by the court below is set aside. The suit is dismissed. Parties are directed to suffer their costs.
All pending interlocutory applications will stand closed.
ANTONY DOMINIC, JUDGE.
A. HARIPRASAD, JUDGE.
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