Jharkhand High Court
Beni Mahto vs Hulas Mahto on 30 June, 2004
Equivalent citations: [2004(3)JCR356(JHR)]
Author: Vishnudeo Narayan
Bench: Vishnudeo Narayan
JUDGMENT Vishnudeo Narayan, J.
1. This appeal at the instance of the defendant-appellant has been preferred against the impugned judgment and decree dated 4.4.1990 and 18.4.1990 respectively passed in Title Appeal No. 65 of 1988/1 of 1990 by Shri Shyama Prasad Singh, 2nd Additional District Judge, Hazaribagh whereby and whereunder the appeal was dismissed affirming the judgment and decree of the Trial Court with modification directing the defendant-appellant to execute a deed of correction and the suit of the plaintiff was decreed in full.
2. The plaintiff-respondent had filed the said title suit for declaration of this title and confirmation of his possession over 2 decimals of land in the northern side in plot No. 2644 appertaining to Khata No. 170 detailed in Schedule A of the plaint and for permanent injunction restraining the defendant from alienating the suit land or any portion thereof or distributing and ousting the plaintiffs from the possession of the suit land. A further relief was also sought directing the defendant to execute a deed of correction or Bazidawa in favour of the plaintiff in respect of the suit land.
3. The case of the plaintiff, in brief, is that defendant executed a registered sale deed on 20.7.1953 in his favour in respect of plot No. 515 of Khata No. 162 having an areas of 3 decimals, besides 4 decimals out of 9 decimals of plot No. 5881 of Khata No. 162 and northern 2 decimals out of 67 decimals of plot No. 2644 of Khata No. 170 and the defendant put the plaintiff in possession over 9 decimals of the land aforesaid and since then the plaintiff is in possession over the same continuously without let or hindrance to the knowledge of the defendant and the plaintiff has built a house on portion of the said purchased land and the rest portion is used for growing vegetable and other crops. It is alleged that plaintiff had purchased plot No. 2646 from Beni Mahto earlier and plot No. 2645 from one Bihari Mahto and he has amalgamated the 2 decimals of plot No. 2644 acquired by virtue of the sale deed dated 20.7.1953 with the aforesaid plots and has constructed a pucca well in the said 2 decimals of land of plot No. 2644 in the south western corner in the year 1954 for the purpose of drinking water and growing vegetable etc. The further case of the plaintiff is that there had been an amicable partition between the defendant and his three brothers and the defendant had got 1/4th in his share towards north west corner in plot No. 2644 and rest of the portion of the said plot was allotted to the share of his other three brothers. It is alleged that though the defendant had transferred 2 decimals of plot No. 2644 from the north western corner but either by fraud or by sheer mistake instead of mentioning plot No. 2644 inserted plot No. 2944 in the said sale deed aforesaid but in spite of that plaintiff remained in possession over 2 decimals of land aforesaid of plot No. 2644 without any interference by anyone including the defendant and in the month of November, 1983, the said mistake was detected and he approached the defendant to execute a Bazidawa or a deed of rectification to which the defendant agreed but later on retreated. It is also alleged that plot No. 2944 does not belong to the defendant rather it belonged to one Lakhan Mahto and the defendant had no right and title in respect of plot No. 2944 to execute a sale deed in respect thereof and it is an apparent mistake. It is also alleged that the plaintiff has perfected his title over 2 decimals of plot No. 2644 in remaining in possession over the same by adverse possession.
4. The case of the defendant in his written statement, inter alia, is that, he has executed the sale deed dated 20.7.1953 in favour of the plaintiff in respect of 3 decimals of plot No. 515 and 4 decimals of plot No. 5881 of Khata No. 62 only and he has not executed any sale deed in respect of 2 decimals of plot No. 2644 of Khata No. 170 in favour of the plaintiff and thus the claim of the plaintiff in respect of 2 decimals of plot No. 2644 is false and baseless and the plaintiff was never put in possession over any portion of plot No. 2644. It is alleged that entire northern portion of plot No. 2644 is in his possession even today which he got in family partition in the year 1944 after the death of his father Nehal Mahto. Excavation of the well in the year 1954 by the plaintiff for the suit land has been denied. It is alleged that he and his other brothers had excavated well in the year 1942 in their respective portions of plot No. 2644 for irrigating the land. The further case of the defendant is that taking advantage of his ignorance and illiteracy the plaintiff has got plot No. 2944 inserted in the impugned sale deed dated 20.7.1953 without the knowledge of the defendant which the defendant came to know only after institution of the suit. It has further been alleged that the plaintiff had purchased only 7 decimals of land comprising of plot No. 515 and 5881 of Khata No. 162 through the sale deed dated 20.7.1953 and this defendant had never transferred 2 decimals of plot No. 2644 of Khata No. 170 by virtue of the said sale deed. Lastly it has been alleged that plaintiff has false alleged that he has approached this defendant for execution of a rectification deed or Bazidawa to his defendant for 2 decimals of land of plot No. 2644. The plaintiff has never acquired any right, title or interest in 2 decimals land of plot No. 2644 by virtue of the said sale deed and he was never in possession over the same.
5. In view of the pleadings of the parties the learned Tried Court has framed for following issues for adjudication in this case :
"(i) Is the suit as framed maintainable?
(ii) Is the suit barred by law of limitation acquisance or adverse possession?
(iii) Has the plaintiff got valid cause of action for the suit?
(iv) Has the plaintiff got valid cause of action for the suit?
(v) Has the suit land been transferred to the plaintiff through sale deed dated 20.7.1953 by the defendant?
(vi) Has the plaintiff got any right, title and interest in the suit land and his title has been perfected by adverse possession?
(vii) Is the suit land coming in possession of the plaintiff since 20.7.1953 or the same is part and parcel of the land of the defendant and is coming in his possession since 1942?
(viii) Is the plaintiff entitled for the decree as claimed for or to what relief plaintiff is entitled?
6. In view of the evidence oral and documentary on the record the learned Trial Court while deciding issue Nos. (iv), (v) and (vi) has held that the defendant has transferred 9 decimals of land by virtue of the registered sale deed dated 20.7.1953 and in fact 2 decimals of plot No. 2644 have been transferred to the plaintiff through the said sale deed dated 20.7.1953 (Ext. 1) and its boundary has correctly described in the said sale deed and there is a mis-description regarding the plot No. and mistakenly it has been described as plot No. 2944 instead of 2644. The learned Trial Court has further held that defendant has transferred 2 decimals of land from northern side to the plaintiff appertaining to plot No. 2644 of Khata No. 170 and in its place plot No. 2944 was wrongly written therein. The learned Trial Court has also held that the plaintiff is in possession of 2 decimals of land of plot No. 2644 and defendant has failed to prove his possession thereon. However it has also been held that the defendant cannot be compelled to execute a deed of Bazidawa or rectification deed as claimed by the plaintiff. Other issues were also decided in favour of the plaintiff and the suit was decreed in part but the relief of execution of a deed of Bazidawa or rectification deed by the defendant in the favour of the plaintiff as claimed was negatived.
7. Being aggrieved by the judgment of the Trial Court the defendant preferred Title Appeal No. 65 of 1988. The learned appellate Court below on re-appreciation and re-appraisal of the evidence on the record affirmed the findings of the learned Trial Court and allowed the appeal and decreed the suit in full modifying the judgment of the Trial Court and directed the defendant to execute the deed of rectification regarding the apparent mistake in describing the correct plot No. of the suit land. It has been held by the appellate Court below that when it was found by the Trial Court that insertion of plot No. 2944 in place of plot No. 2644 was a mistake, then such mistake must be corrected and the ground of rejection of this relief by the learned Trial Court is erroneous.
8. The Court while admitting the appeal has formulated the substantial question of law vide order dated 18.5.1990 which run thus :
"As the respondent had filed the suit for a decree directing the appellant to execute a deed of rectification, whether it should have been filed within 12 years from the date of the sale deed and consequently the suit was barred by limitation."
9. Assailing the impugned judgment it has been submitted by the learned counsel for the plaintiff appellant that though there is a concurrent finding of both the Courts below regarding the title and possession as well as mis-description of plot No. 2644 as plot No. 2944 but there is no concurrent finding of the Courts below for execution of a deed of Bazidawa or rectification deed by the defendant in favour of the plaintiff and the finding of the learned Trial Court in respect thereof was reversed by the appellate Court in the impugned judgment. It has been submitted that in the absence of any finding arrived, at by the learned appellate Court below with regard to the mutual mistake or fraud as required under law the impugned judgment directing the defendant to execute a rectification deed cannot be sustained in law and specially when there is no cross-objection by the plaintiff in respect thereof and the appellate Court has no jurisdiction to grant the said relief for execution of a deed of rectification by the defendant in favour of the plaintiff. It has also been submitted that the sale deed was executed on 20.7.1953 where there is mis-description in respect of plot No. 2644 which has been mentioned as plot No. 2944 in the said sale deed and the suit has been filed in the year 1984 for rectification of the said sale deed and thus the relief regarding execution of a deed of rectification is barred by law of limitation and thus the direction of the learned appellate Court below for execution of a rectification deed by the defendant in favour of the plaintiff in respect thereof being barred by law of limitation cannot be sustained and as such the impugned judgment suffers with illegality.
10. None has appeared on behalf of the plaintiff-respondent.
11. It is relevant to mention at the very out set that both the Courts below have concurrently held that the defendant-appellant has admittedly executed the sale deed dated 20.7.1953 in favour of the plaintiff in respect of plot No. 5881 and 515 besides 2 decimals of plot No. 2644 which has been mis-described as plot No. 2944 and the plaintiff has acquired right, title and interest in respect of the aforesaid plots including plot No. 2644 and he has also been found in possession thereon. The main relief claimed by the plaintiff was for declaration of his title and confirmation of possession and besides that an ancillary relief has been sought for a direction to the defendant to execute a deed of Bazidawa or a deed of rectification. Section 26 of the Specific Relief Act, 1963 (hereinafter referred to as to said Act) provides for rectification of a contract in writing or other instruments in writing if through fraud or mutual mistake of the parties it does hot reflect the real intention of the parties and rectification may be ordered at the instance of either party to the contract or instrument or his representative in interest and the said rectification may be sought by way of a suit for rectification instituted by either of the parties to the said contract or instrument or by the plaintiff or the defendant in any suit in which any right arising under the instrument arises. It is needless to say that relief of rectification is a relief in equity. Sub-clause (2) of Section 26 mandates that if in any suit in which a contract or other instrument is sought to be rectified and 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 this can be done without the rights acquired by 3rd person in good faith and for value. In the case of Siddique and Co. v. Utoomal and Assudamal Co., AIR (33) 1946 PC 42, it has been observed that :
"........In order to obtain rectification of an instrument under Section 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 and 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."
It, therefore, appears from the ratio aforesaid that to establish a right to rectification of a document it is necessary to substantiate that there has either been fraud or mutual mistake as a result of which the intention of the parties was not accurately expressed in the instrument. In case of unilateral mistake the rectification of the instrument does not arise. In the case of Madhorao Narayanrao Ghatate v. Deepchand and Ors., AIR 1927 Nagpur 259 it has been observed that where a deed gives a detailed description of the property covered by it and there is no doubt as to the identity of the property Section 31 (now Section 26) of the said Act will not apply merely because the tehsil in which the property is situate is wrongly described. Here in this case at hand there is mis-description in respect of the plot No. 2644 which has been mis-described as plot No. 2944 in the sale deed dated 20.7.1953. This description is very material and the controversy between the parties has arisen only because of the said mis-description. It is equally pertinent to mention here that Khata No. of mis-described plot No. 2944 has not been found mentioned in the said sale deed though the local name of the plot and its boundary as mentioned in the sale deed aforesaid co-relate with plot No. 2644 coupled with the fact that plot No. 2944 belongs to one Lakhan Mahto having his house thereon as per survey records of right (Ext. 5). Therefore, the ratio of the case of Madhorao Narayanrao Ghatate (supra) is quite distinguishable having no application in this case. There is averment in para 5 of the plaint that mis-description in the sale deed had occurred due to mistake or fraud that might have been committed. The case of the defendant in para 10 of his written statement is that the defendant has never contracted to sell any portion of plot No. 2644 to the plaintiff and he does not own any land bearing land No. 2944 and he also did not contract to sell plot No. 2944 and question of selling plot No. 2644 with the plaintiff in fact never arose and the plaintiff taking advantage of the ignorance and illiteracy of the defendant probably played a fraud and got another plot No. 2944 measuring an area of 2 decimals mentioned in the registered sale deed executed by the defendant in favour of the plaintiff as back as in the year 1953. It is pertinent to mention here that the defendant has not controverted the fact that the mis-description has resulted due to the mistake of the parties in describing plot No. 2644 in the said sale deed. His case is that plaintiff practicing fraud has incorporated plot No. 2944 in the said sale deed plaintiff Phulas Mahto as PW 7 has deposed most categorically that the said mis-description had occurred due to mistake and in his cross-examination at page 3 of his deposition the scribe has only read the boundary of the said mis-described plot No. 2944. Therefore, it appears that there is no case of the plaintiff either in his plaint or in his evidence that the said mis-description has been caused due to the mutual mistake. Neither of the Courts below has adverted to a finding that said mis-description has been caused due to the mutual mistake of the parties. Therefore, there is no rationable for the appellate Court below to direct the defendant to execute a deed of rectification rectifying the said mis-description. However, in the case of Tetali Sooramma v. Kovvuri Venkayya and Ors., AIR 1938 Mad 589, it has been observed that where the plaintiff suing for sale of certain property on the basis of a mortgage executed in his favour alleges that the property is wrongly described and incidentally prays for rectification of the mistake, he is entitled on prove of his title to the relief for the sale of the property which was agreed to be mortgaged even through his right to sue for rectification of the mortgage deed is barred by limitation. Therefore, both the Courts below have rightly concurrently held that the plaintiff has acquired valid right title and interest in respect of 2 decimals of plot No. 2644 by virtue of the sale deed dated 20.7.1953 in spite of the fact that plot No. 2644 has been mis-described as plot No. 2944. Both the Courts below have also concurrently held that the plaintiff is in possession of 2 decimals of plot No. 2644. Therefore, there is no illegality in the finding of both the Courts below in respect thereof. However, in the absence of finding by the appellate Court below with regard to the mutual mistake or fraud as required under the law the plaintiff is not entitled to the ancillary relief of a direction to the defendant to execute the deed of rectification.
12. Now come to the question of limitation. The plaintiff has made out a case that he has got the knowledge of the said mis-description for the first time in the month of November, 1983. Suit was filed on 23.1.1984. Section 17 of the Limitation Act, 1963 provides that for a suit or application for relief from the consequences of a mistake or fraud the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it and the limitation will run from the date of the discovery of the fraud or mistake. The suit has been filed within two months of the discovery of the said mistake. The period of limitation prescribed under residuary Article 113 of the Limitation Act is three years. Therefore, it cannot be said that relief claimed by the plaintiff for execution of deed of Bazidawa or rectification is barred by limitation. It is made clear that the failure to rectify a sale deed does not extinguish the title to the property, which was really sold but was not properly described in the sale deed due to mistake. However, in the absence of any finding of the appellate Court with regard to the mutual mistake of fraud as required under the law the direction of the appellate Court to the defendant to execute deed of rectification is erroneous and thus unsustainable. In view of the concurrent finding of both the , Courts below regarding the title and possession of the plaintiff over 2 decimals of plot No. 2644 based on the legal evidence on the record, the ancillary relief of the execution of the deed of rectification by the defendant has no bearing in this case affecting the title of the plaintiff in respect of the suit land. Viewed thus, the impugned judgment of the appellate Court below requires modification and the direction of the learned appellate Court below to the defendant to execute a deed of rectification is hereby set aside.
13. There is no merit in the appeal and it fails. The appeal is dismissed and the impugned judgment of the Trial Court is affirmed with notification stated above. In the facts and circumstances of the case, there shall be no order as to cost.