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It is true that whenever the defendant discovered the mistake, it was open to him to go to a Court under Section 31, Specific Relief Act, and ask for a rectification of the sale deed. If he obtained rectification of the sale deed, then he would get- a title; but until the sale deed was rectified, he would have in his favour only the right to file a suit conferred upon him under Section 31, and not the title itself.

It may be that once the document was rectified, the title may relate back to the date upon which the sale deed was executed. The suit would be not for a fresh conveyance, but for a rectification of the conveyance, which had already been passed. The order for rectification would necessarily imply that there was a mistake in the document, & what the Court would give, therefore, as a result of the suit for rectification, would be a reformed document, viz. the original sale deed, with an additional item added to it. But even so, to the plaintiff's suit which was based upon title, the defendant had no defence. He could only defend it by showing a better title in him, and upon what he has done, he had got no title.

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)."

In 28 Bom 420 (C), the plaintiffs sued to recover a certain amount for breach of a covenant against encumbrances contained in a conveyance of property by defendant No. 1 to plaintiff No. 3. The defendants contended that the covenant as expressed in the deed was contrary to the intention of the parties. They were allowed to raise this contention even though no suit had been instituted for rectification of the deed. In his judgment at p. 426 Sir Lawrence Jenkins observed:

"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."

On the other hand, the equity which exists in favour of a party prejudicially affected by a mistake in the written document, which does not correctly record or express the agreement between the parties, has been recognised by the Legislature in Section 31 of the Specific Belief Act.

17. If the defendant had filed a suit for rectification of the sale deed and for an injunction restraining the plaintiff from interfering with his possession, then according to the finding of the lower appellate Court, the defendant's suit would have been decreed, in which case the plaintiff's suit would have been dismissed. Apart from putting the parties to more expense, no advantage would be gained by requiring the defendant to file a separate suit for this purpose. In the words of Sir Lawrence Jenkins in 'Dagdu Y. Bhana (C)' (at page 426) "as a Court guided by the principles of Justice, equity and good conscience", I think we should, as held by our Court in 'Dagdu v. Bhana (C)' and 'Janardan v. Venkatesh (F)' allow the defendant to urge the same grounds, on which he could have claimed rectification of the sale deed, as a defence to the plaintiff's suit.