He further argues that under Section 26 of the Specific Relief
Act, 1963, only in case of fraud or mutual mistake of the parties,
contract or other instrument in writing, can rectify the instrument.
He points out that in absence of pleadings relating to fraud or
mutual mistake, allowing rectification of sale-deed would be
contrary to the provision of Section 26 of the Specific Relief Act,
1963.
Section 26, of course, says that it would be open to
a party to institute a suit for correcting the description
of the suit property, but the proviso to Section 26
clearly permits 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 plaint on
such terms as may be just for including such claim.
From a plain reading of the provisions under Section
26 of the Act, there is no reason why the prayer for
amendment of the agreement to correct a part of the
description of the suit property from Chak No. 3 SSM
to Chak No. 3 SLM, later on converted to Chak No. 3
SWM could not be granted. In our view, it is only a
correction or rectification of a part of the description
of the suit property, which cannot involve either the
question of limitation or the change of nature of suit.
In our view, the suit shall remain a suit for specific
performance of the contract for sale and a separate
independent suit is not needed to be filed when the
proviso to Section 26 itself clearly permits either party
to correct or rectify the description of the suit property
not only in the plaint but also in the agreement
itself….”
27. In every sale transaction of land, to avoid further litigation or
any dispute, it is expected that the vendee should verify the title
deeds before entering into the agreement, visit the site and finally
after satisfying all the materials prepare draft sale deed. Therefore, it is not the only duty of vendor but it is the duty of both the parties to the contract for sale of land, to take care while mentioning description of properties in the sale-deed. Thus if there is any mistake in description of properties or boundaries in sale deed the same cannot be said to be a mistake of one party and not of both the parties to such contract.
28. In light of conclusion arrived at by this court that this is a
case of misdescription and not a case of mistaken identity and in a case of misdescription of the field Gat number and the boundaries, the boundaries would prevail over field Gat number, it cannot be said that the mistake in the present case is in respect of a matter which is essential to the agreement, therefore, sections 20 of Act 1872, would not apply to the present case.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 121 OF 2005
Sau. Varsha Sahebrao Deshmukh Vs Ghanshyam Madanlal Goenka,
CORAM : ANIL S KILOR J.
DELIVERED ON: 31st JANUARY, 2020
The present appeal is preferred against the judgment and
decree dated 6th January, 2005 passed by the learned Second
Adhoc District Judge, Akola in Regular Civil Appeal No. 251/2003,
arising out of the judgment and decree dated 21st August, 2003
passed by learned 4th Joint Civil Judge, Junior Division, Akola in
Regular Civil Suit No. 350/2002, therby the lower appelate Court
set aside the judgment and decree passed by the trial Court and
decreed the suit for correction of sale deed and permanent
injunction in favour of the respondent no. 1/plaintiffs.
2. The appellant is the original defendant no.3 whereas the
respondent no.1 is the original plaintiff and respondent nos. 2 and
3 are the original defendant no.1 and 2 respectively.
3. The respondent no. 1 preferred a suit for correction of the
sale-deed and permanent injunction vide Regular Civil Suit No.
351/2002.
4. It is the case of the plaintiff/ respondent no. 1 that he had
executed two sale deeds each for land admeasuring 2 H 83 R, in
favour of the respondent no.2 and 3 on 11th May, 1999 and one sale
deed for land admeasuring 1 H 21 R, in favour of appellant on 25th
May, 1999, relating to a field Gat no. 278 owned by him, situated
at Mouje Katyar, Tq and Distt. Akola.
5. The respondent no.1/ plaintiff further states that four
boundaries mentioned in the said sale-deeds clearly demonstrate
that the same are relating to the field Gat No.278, however, in sale
deeds it had wrongly been mentioned as field Gat no. 207.
6. On the other hand the respondent no.2 and respondent no.3,
had also filed a suit bearing Regular Civil Suit No.350 of 2002, for
declaration and permanent injunction against the respondent no. 1,
alleging that the respondent no. 1 had falsely mentioned the four
boundaries in the sale-deeds in question and though they
requested him to correct the same, he did not pay heed to their
request.
7. The same was the defence taken by the appellant and
respondent no. 2 and 3 in their written statement to Regular Civil
Suit No.351/2002 preferred by the respondent no.1.
8. Learned trial Court decreed the Regular Civil Suit
No.350/2002, vide judgment and decree dated 21st August, 2003,
therby permanently restraining the respondent no. 1
Ghanshyamdas, from obstructing the peaceful possession of
respondent nos. 2 and 3, over the field bearing Gat no.207 and
directing the respondent no. 1 to correct the four boundaries in
sale-deeds in question within two months. The Learned trial Court
further dismissed Regular Civil Suit No.351/2002, filed by
respondent no. 1, Ghanshyamdas.
9. Feeling aggrieved by the same, the respondent no. 1, filed
two separate appeals bearing Regular Civil Appeal No.255/03 and
Regular Civil Appeal No. 256/03.
10. Learned lower appellate Court allowed both the appeals in
favour of respondent no. 1/ plaintiff Ghanshyamdas and
consequently decreed the Regular Civil Suit No.351/02 filed by
respondent no. 1 and dismissed Regular Civil Suit No.350/02 filed
by the respondent nos. 2 and 3. The present appeal is arising out
of the said judgment and decree dated 6th January, 2005.
11. This court while admitting the second appeal framed the
following substantial questions of law.
“Whether the first Appellate Court was justified in
reversing the judgment and decree passed by the trial
Court, without considering the evidence by the trial
Court while recording the findings against the plaintiff
as also the admission of the plaintiff in his crossexamination
that he had sold the field gat no.207
admeasuring 10H 83R to the appellant”.
12. Heard Shri S.V. Deshmukh, learned counsel for the appellant,
Shri S.C. Mehadia, learned counsel for the respondent no. 1 and
Shri C.A. Joshi, learned counsel for the respondent nos. 2 and 3.
13. Shri Deshmukh, learned counsel for the appellant, submits
that from the pleadings it will be revealed that correction of saledeeds
was sought on the ground that he had committed a mistake
while mentioning Gat No.207 in the sale-deeds. He further argues
that it is not the case of the respondent no. 1 that the said mistake
was committed by both the parties to the sale deeds in question.
Thus, he submits that as per Section 22 of the Indian Contract Act,
1872, a contract is not voidable merely because it was caused by
one of the parties to it being under a mistake as to a matter of fact.
14. He draws attention of this Court to Section 20 of the Indian
Contract Act, 1872 to submit that where both the parties to an
agreement are under a mistake as to a matter of fact essential to
the agreement, the agreement is void. Thus, he submits that in
absence of any pleading to the effect that both the parties to the
agreement have committed mistake as to matter of fact, the prayer
made by the respondent no. 1, Ghanshyamdas in his suit, is not
tenable.
15. He further argues that under Section 26 of the Specific Relief
Act, 1963, only in case of fraud or mutual mistake of the parties,
contract or other instrument in writing, can rectify the instrument.
He points out that in absence of pleadings relating to fraud or
mutual mistake, allowing rectification of sale-deed would be
contrary to the provision of Section 26 of the Specific Relief Act,
1963.
16. He submits that the trial Court has misplaced its reliance on
the case of Sheodhyam Singh Vrs. Sanicharkaur reported in AIR
1963 SC 1879.
17. Per contra, Shri S.C. Mehadia, learned counsel for
respondent no.1, submits that though in the sale-deed field Gat
no.207 was mentioned, in fact the boundaries mentioned in saledeeds,
are of Gat no.278. Thus, the appellant, respondent no. 2
and 3 were well aware of the fact as related to the land which was
actually sold and they have been put into possession. Hence while
signing the sale-deeds description of boundaries were acceptable to
both the parties and therefore, the mistake in mentioning the field
Gat. number, cannot be treated as a mistake committed by one
party and not by both the parties. He submits that the contention
of the learned counsel for the appellant as regard to Sections 20
and 22 of Indian Contract Act, 1872 and Section 26 of the Specific
Relief Act, 1963, is not tenable.
18. Shri Mehadia learned counsel for the respondent no.1,
argues that in the present matter adverse inference should be
drawn against the appellant as she did not enter into witness box,
but, her husband who is the power of attorney holder of her,
entered into witness box. He has further drawn my attention to the
cross-examination of power of attorney the holder of the appellant,
wherein he has deposed that six months after the sale-deed, the
appellant first time got the knowledge about the wrong description
of boundaries and further admits that for correction of boundaries,
no notice was issued to the respondent no.1/plaintiff.
19. To consider the rival contentions of the parties, I have gone
through the record and proceedings with the help of the learned
counsel for the parties and perused judgments and decrees of both
the courts below.
20. In the case of Sheodhyam Singh Vrs. Sanicharkaur (Supra),
the Hon’ble the Supreme Court of India, has observed thus:
“7. We are of opinion that the present case is
analogous to a case of misdescription. As already
pointed out the area, the khata number and the
boundaries all refer to Plot No. 1060 and what has
happened is that in writing the plot number, one zero
has been missed and 1060 has become 160. It is also
important to remember that there is no plot bearing
No. 160 in Khata No. 97. In these circumstances we
are of opinion that the High Court was right in
holding that this is a case of misdescription only and
that the identity of the property sold is well
established, namely, that it is Plot No. 1060. The
matter may have been different if no boundaries had
been given in the final decree for sale as well as in the
sale certificate and only the plot number was
mentioned. But where we have both the boundaries
and the plot number and the circumstances are as in
this case, the mistake in the plot number must be
treated as a mere misdescription which does not affect
the identity of the property sold. The contention of
the appellants therefore with respect to this plot must
fail.”
21. The Hon'ble Supreme Court of India in a case of Subhaga v.
Shobha, (2006) 5 SCC 466,has observed thus:
“That a property can be identified either by
boundary or by any other specific description is well
established. Here the attempt had been to identify
the suit property with reference to the boundaries
and the Commissioner has identified that property
with reference to such boundaries. Even if there was
any discrepancy, normally, the boundaries should
prevail.”
22. In the present matter the power of attorney of the appellant,
Dadarao in his cross-examination, has deposed that the appellant
got the knowledge after six months of execution of sale deeds,
about wrong description of boundaries in the sale-deed. He further
admits that no notice for correction of boundaries has been issued
to the respondent no.1.
23. Thus, the appellant is admitting that the field which is in her
possession, is having the same boundaries as are mentioned in the
sale-deed and the description of boundaries mentioned in the sale
deeds do not match with the boundaries of field Gat no. 207. At
the same time the appellant is not disputing that the boundaries
mentioned in the sale-deeds in question, are of the field Gat
no.278.
24. The above referred admitted facts speak for themslves that at
the time of executing sale-deeds and while taking possession of the
field in question, the appellant and respondent nos. 2 and 3, did
not raise any dispute pertaining to the boundaries, having found
that the same matched with the land they have been put into
possession. Thus it is clear that with complete clarity as regards
which land they have purchased, the possession had been taken by
them without any demur.
25. In light of above facts this is a case of misdescription and not
a case of mistaken identity as there is no doubt as to the identity of the field purchased by the appellant but there is only misdescription of field Gat number, that could be treated as a mere irregularity and in a case of misdescription of the field Gat number and the boundaries, the boundaries would prevail over field Gat number.
26. The Hon'ble the Supreme Court of India in case of Puran
Ram v. Bhaguram, (2008) 4 SCC 102, has observed thus:
“13. A reading of these two conditions made under
Section 26 of the Act would amply show that either
party may institute a suit to have the instrument
rectified or a party who has already filed a suit in
which any right arising under the instrument is in
issue may claim in his pleading that the instrument be
rectified. So far as the facts of the present case are
concerned, it cannot be doubted that the main issue in
the suit for specific performance of the contract for
sale was relating to the agreement for sale in which a
part of the description of the suit property was
wrongly given by mutual mistake and therefore,
needed to be amended.
14. Section 26, of course, says that it would be open to
a party to institute a suit for correcting the description
of the suit property, but the proviso to Section 26
clearly permits 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 plaint on
such terms as may be just for including such claim.
From a plain reading of the provisions under Section
26 of the Act, there is no reason why the prayer for
amendment of the agreement to correct a part of the
description of the suit property from Chak No. 3 SSM
to Chak No. 3 SLM, later on converted to Chak No. 3
SWM could not be granted. In our view, it is only a
correction or rectification of a part of the description
of the suit property, which cannot involve either the
question of limitation or the change of nature of suit.
In our view, the suit shall remain a suit for specific
performance of the contract for sale and a separate
independent suit is not needed to be filed when the
proviso to Section 26 itself clearly permits either party
to correct or rectify the description of the suit property
not only in the plaint but also in the agreement
itself….”
27. In every sale transaction of land, to avoid further litigation or
any dispute, it is expected that the vendee should verify the title
deeds before entering into the agreement, visit the site and finally
after satisfying all the materials prepare draft sale deed. Therefore,
it is not the only duty of vendor but it is the duty of both the parties
to the contract for sale of land, to take care while mentioning
description of properties in the sale-deed. Thus if there is any
mistake in description of properties or boundaries in sale deed thesame cannot be said to be a mistake of one party and not of both the parties to such contract.
28. In light of conclusion arrived at by this court that this is a
case of misdescription and not a case of mistaken identity and in a case of misdescription of the field Gat number and the boundaries,
the boundaries would prevail over field Gat number, it cannot be
said that the mistake in the present case is in respect of a matter
which is essential to the agreement, therefore, sections 20 of Act
1872, would not apply to the present case.
29. Similarly as observed above that if there is any mistake
in description of properties or boundaries in sale deed the same
cannot be said to be or considered to be a mistake of one party and
not of both the parties to such contract, therefore, sections 22 of Act
1872, would also not apply to the present case.
30. A reading of Section 26 of the Act would amply show
that either party may institute a suit to have the instrument
rectified and it would be open to a party to institute a suit for
correcting the description of the suit property. In view of above
settled law position I have no hesitation to hold that the plaintiff/
respondent no. 1, is entitled for relief of rectification of Gat number
mentioned in the sale deeds in question as sought for in the suit,
under Section 26 of At,1963.
31. In the above backdrop I hold that the learned lower
appellate Court has not committed any error of law in allowing
both the appeals filed by the respondent no. 1. Hence I do not find
any merit in the present matter or any substantial question of law
involved. Accordingly, the appeal is dismissed. No order as to
costs.
JUDGE
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