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1. This second appeal arises from a suit, which had been filed by the appellant plaintiff for recovery of a piece of land, which, it has been found now by both the lower Courts, was intended to be included in a sale deed executed by the plaintiff's predecessors-in-title, Baswant Sattu Gadakari alias Gadadavar, Sattava wife of Rama Gadakari alias Gadadavar and Kareppa Hasapur alias Karodi in favour of the defendant. It was, however, upon the findings of both the trial Court and the appellate Court, not included in the sale deed, because of a mutual mistake.

As I have already mentioned, we are not in this case concerned with a case in which the defendant's right to sue for rectification of his instrument was barred by the statute of limitation at the date of the written statement. It is true that there must be authority for allowing the defendant to plead in such circumstances the mutual mistake success-

fully in defence. But there is considerable authority for the proposition that he should be allowed to do so.

8. The first of these cases is -- 'Dagdu v. Bhana', 28 Bom 420 (C). That was a suit for recovery of a sum for breach of a covenant against incumbrances contained in a conveyance of property executed by defendant No. 1 in favour of plaintiff No. 3. The defence was that the covenant was included in the sale deed by a mutual mistake. A question was then raised before this Court in that case whether the case having come from the mofussil, in which it was not permissible for a defendant to file a counter-claim, even if the defendant was successful in establishing a mutual mistake, relief could be given to him. Sir Lawrence Jenkins, who delivered the judgment of the Court in that case, observed (p. 426) : "It is true that rectification is not claimed in this suit as a relief by the defendants, for the rules of procedure by which Mofussil Courts are governed do not permit of a counterclaim in this suit for that purpose, nor is there a cross suit for rectification; but as a Court guided by the principles of justice, equity and good conscience we can give effect as a plea to those facts, which in a suit brought for that purpose would entitle a plaintiff to rectification; of. -- 'Fife v. Clayton', (1807) 13 Ves 546 (D) and -- 'Steele v. Haddock', (1855) 24 L J Ex 78 (E)."

It is true that the case of Mahendra Nath was a case in which by mistake property not intended to be sold was included in a sale deed, and that defence of the defendant was directed to show that no title, as a matter of fact, passed, because there was no intention that the title in regard to the property in suit should pass though property was included in the sale deed. When the defendant therefore, proved mutual mistake, the plaintiff had no title to the property. There was no question of the defendant's title being recognised without having obtained recognition in a suit filed for that purpose.

15. Mr. Jahagirdar on behalf of the appellant has contended that even though the defendant may be able to prove that the suit land was intended to be sold to him and that it was not mentioned in the sale deed owing to a mutual mistake, under Section 54, Transfer of Property Act, any sale of immoveable property of the value of one hundred rupees or upwards can be made only by a registered instrument; that the sale deed in favour of the defendant has not yet been rectified; that as there Is no registered instrument in respect of the suit land, the defendant has acquired no title to it, and that consequently the plaintiff must succeed.