Anthoniswami Padayachi vs Kuppuswami Padayachi

Varadarajan, J.—The Defendant, who failed in both the courts below, is the Appellant. The suit was for declaration of the Respondent''s title to the suit property and for a permanent injunction restraining the Appellant from interfering with his possession and enjoyment of the property, or in the alternative, for possession of the suit property, which is the southern 18 1/2 cents out of the 37 cents comprised in R.S. No. 138/1 of Ammeri village.

The Respondent''s case was that the suit property and 43 cents of land comprised in R.S. No. 138/3 belonged to one Kulls Padayachi, and both of them were settled by him on Anjalai and Varnamayil, the grand daughters of his brother and daughters of one Kesava Padayachi, during their minority by exhibit A-21, dated 20th December 1943. Anjalai became exclusively entitled to those properties on the death of the other settlee Varnamayil, unmarried, and she sold them to the Respondent under exhibit A-2, dated 6th July 1959 in which the survey number and extent of the suit property are mentioned as R.S. No. 127/1 and southern 66 cents out of 1 acre 16 cents respectively by mistake. The southern 66 cents out of 1 acre 16 cents comprised in R.S. No. 127/1 belongs to Govinda Padayachi, Thoppayya Padayachi, Ammakannammal and Babu Ammal. The Respondent''s predecessor-in-title Anjalai did not own any other property in Ammeri Village apart from the suit property and 43 cents comprised in R.S. No. 138/3. The Respondent and his predecessor-in-title were in possession of the suit property for over 12 years before suit and have completed their title by prescription. Taking advantage of the said mistake in the sale deed regarding the survey number and extent, the Appellant began to claim the suit property as his own and had commenced proceedings u/s 145 of the Code of Criminal Procedure before the Executive First Class Magistrate, Vridhachalam. The Respondent, therefore, filed the suit for the aforesaid reliefs.

The defence was that Varnamayil left Anjalai and her father Kesava Padayachi as her heirs and that the Respondent could have purchased only Anjalai''s half share in the property and not the entire property. The Appellant denied that the respondent and his predecessor-in-title had title to the suit property or were in possession thereof at any time and contended that the respondent was not entitled to the declaration and injunction or the alternative relief of possession and that the Appellant and his predecessor-in-title have acquired title to the suit property by prescription and that the Respondent should have paid the necessary Court-fee and prayed for rectification of the sale deed, in view of the admission that the survey number and extent are given wrongly in the sale deed relied upon by the Respondent as his document of title.

Both the Courts below held that what was intended to be sold under exhibit A-2 by Anjalai to the Respondent was the suit property and that the Respondent has title to the suit property. The trial Court held that both sides had not proved possession and granted a decree for declaration and possession to the Respondent. The lower appellate Court held that the Appellant had net proved acquisition of title by prescription, and confirmed the decree for declaration and possession. Hence this second appeal.

The rough plan filed with the plaint indicates that the northern half of R.S. No. 138/1 belongs to the Appellant and that the southern half is north of R.S. No. 138/2 belonging to the Appellant, east of R.S. No. 139 belonging to Ramaswami Padayachi (P.W. 3) and west of R.S. No. 138/4 belonging to the Appellant''s brother, Irudaya Padayachi, and also that R.S. No. 138/3 comprised 43 cents is south of R. S. No. 138-2 belonging to the Appellant and north of R.S. No. 137 belonging to one Rathna Padayachi. In the sale deed, exhibit A-2, the extent is given as 66 cents out of 1 acre 16 cents in R.S. No. 127/1 and the southern boundary is given as R.S. No. 137 belonging to Rathna Padayachi and the northern boundary is given as Rajendra Padayachi''s land. Rajendra Padayachi appears to be the paternal grand-father of the Appellant. Even in the settlement deed, exhibit A-21, dated 20th December 1943 executed by Kulla Padayachi in favour of Anjalai and Varnamayil in respect of the 43 cents comprised in R.S. No. 138/3 and three other items it is stated that the southern 18 1/2 cents out of the 37 cents comprised in R.S. No. 138/1, which is one of the four items, is east of the lands of Rajendra Padayachi and Rathna Padayachi, west of Irudaya Padayachi''s land and north of 43 cents comprised in R.S. No. 138/3. Therefore, the learned Counsel for the Appellant contends that exhibit A-2 does not take in the suit property and that the Respondent has therefore, no title to the suit property. He further contends that the chitta extract, exhibit B-2, shows that in Faslis 1359 to 1371 R.S. No. 138/1 was included in Patta No. 669 standing in the name of Rajendra Padayachi and that in Faslis 1372 to 1938 that patta in respect of R.S. No. 138/1 and two other items stood in the name of the Appellant''s father Anthoni Padayachi and his brother Irudaya Padayachi. R.S. No. 138/1 is stated to be included in Patta No. 669 even in the settlement deed, exhibit A-21. In his oral evidence the Appellant has denied that Kulla Padayachi, Anjalai, Varnamayil and the Respondent were ever In possession of the suit property and has stated that he and before him his father, who died in 1951, have been in possession of the suit property for 37 years. The Appellant has paid kist for Patta No. 669 from 17th January 1946 to August 1957, as seen from the Katchayat books exhibits B-20 and B-21. There is no evidence to show that the suit property was included in Anjalai''s patta or the Respondent''s patta at any time. Admittedly, the Respondent has not paid kist for the patta No. 669 at any time and he appears, from exhibit B-1, to have admitted in writing before the Executive First Class Magistrate, Vridhachalam, in M.C. 32 of 1968 that he was not in possession and enjoyment of three items of properties involved in those proceedings u/s 145 Code of Criminal Procedure including 37 cents comprised in R.S. No. 138/1 and Patta No. 669. Exhibit B-1 is a certified copy of the order, dated 18th November 1968 passed by the Executive First Class Magistrate, Vridhachalam, in M. C. No. 32 of 1968 holding that no further action was necessary in those proceedings started by the Appellant''s father Anthoniswami Padayachi against the Respondent and three others u/s 145 of the Code of Criminal Procedure in respect of the aforesaid three items of lands including the 37 cents comprised in R.S. No. 138/1, and Patta No. 669. The learned Counsel for the Appellant, therefore, submits that the Respondent has neither title to the suit property nor possession within 12 years before the suit and that the Appellant has, on the other hand, proved that he had acquired title to the suit property by adverse possession for over the statutory period of 12 years before the suit.

But the learned Counsel for the Respondent submits mat in the sale deed, exhibit A-20, dated 20th March 1929, by which the Appellant''s father had purchased R.S. No. 138/2 and 18 cents in R.S. No. 138/1 the southern boundary is given as the land belonging to one Periyanayaki by right of purchase. He also submits that there is evidence to show that Periyanayaki is the wife of the Respondent''s predecessor-in-title Kulla Padayachi and that the Respondent''s title to the suit property is thus established by the boundary recital in exhibit A-20. He further submits that the Appellant has no title to the suit property and that he has not established that he has acquired title by adverse possession for the requisite period and that the lower Court''s decree for declaration and possession is, therefore, unassailable.

It was contended before me that, having regard to the admitted defect in the Respondent''s title deed, exhibit A-2, regarding the survey number, extent and some of the boundaries, the Respondent should have first got a rectification of his title deed before ever he could sue for declaration of his title to the suit property. But the learned Counsel for the Respondent submitted that it is unnecessary for the Respondent to do so notwithstanding the fact that the Appellant is not a party to the document. Exhibit A-2, and that it is open to the Respondent in this suit for declaration and injunction itself to adduce oral evidence to show that there was a mutual mistake on the part of the Respondent and his predecessor-in-title, and succeed. He relied upon certain decisions, which would be referred to presently, in support of that contention. The earliest decision relied upon for the Respondent is of a Bench of this Court in Rangaswami Aiyangar v. Sowri Aiyangar 29 M.L.J. 229 where the learned Judges have observed:

In this Court it was decided in Karuppana Goundan v. Periathambi Goundan ILR Mad. 397 Mahadeva Aiyar v. Gopala Aiyar ILR Mad. 51 that a Plaintiff can sue to recover the right property not withstanding misdescription in his document of title.

In the subsequent decision of a Bench of this Court, to which one of the learned Judges who decided the case in Rangaswami Aiyangar v. Sowri Aiyangar 29 M.L.J. 229 was a party, namely Palanivelappa Goundan v. Nachappa Goundan AIR 1919 Mad. 247 the learned Judges have observed:

Section 31, Specific Relief Act is only an enabling section. It is open to a transferee to seek relief by rectification under it. If he gets a decree for rectification, the plea of a possible innocent purchaser that he got it bona-fide for value without notice might be avoided. But the transferee is not bound to seek this remedy. He can protect his title as Defendant without rectification-see Rangaswami Aiyangar v. Sowri Aiyangar 29 M.L.J. 229. He can have a declaration as Plaintiff that the property belongs to him without seeking rectification. In such cases the provisions of sections 95 to 97, Evidence Act, can be availed of by him. This was the course pointed out in Karuppanna Goundan v. Periathambi Goundan ILR Mad. 397, Iqbah Ahmad J., has observed in Budhu Khan Vs. A. Boner .

True it is that a remedy by way of rectification of an instrument by a suit is open to a party, when through fraud or mutual mistake of the parties an instrument in writing does not truly express their intention. But this does not mean that if, notwithstanding the mutual mistake the property actually intended to be transferred has passed to the possession of the vendee, the vendee''s title to the property can be challenged simply because the instrument has not been rectified within three years from the date of the discovery of the mistake by the vendee. It will always be open to the vendee, if his title is challenged by the vendor, to show that there was a mistake in the instrument and that, as a matter of fact, the property in his possession was intended to be transferred to him.... The mere failure of the vendee to have the instrument rectified within three years from the date of the discovery of the mistake, cannot have the effect of extinguishing his title to the property intended to be conveyed to him, though not properly described in the sale deed. This was the view taken in the case of Asitulla v. Sadatullah 28 C.L. J. 197

No doubt this was a case where the Defendant was a party to the document of title in which there was a mistake, as in the case of Rangaswami Aiyangar v. Sown Aiyangar 29 M.L.J. 229 Another Bench of this Court has observed in Tetali Sooramma Vs. Kovvuri Venkayya (died) and Others, thus:

It has been held that, so far as the Defendant is concerned, even though he has not sued to have the document rectified and even though a suit for rectification is barred by limitation, nevertheless, the Court is entitled to give him relief: vide Mahendra Nath Mukherjee and another Vs. Jogendra Nath Roy Chaudhury, principal Defendant and others . But it is Conternded that a different rule ought to apply in the case of a Plaintiff, i.e., if he wants to get a relief on the basis of mutual mistake, it is his duty to institute a suit for rectification within three years from the date when the mistake came to his knowledge under Article 96 of Schedule 2, Limitation Act, and no relief could be given if he allows his claim for rectification to be barred. It seems to us that this contention is not tenable

The learned Judges in that case have affirmed the correctness of the decision in Asitulla v. Sadatullah 28 C.L.J. 197 This decision, therefore, lays down as done in Palanivelappa Goundan v. Nachappa Goundan AIR 1919 Mad. 247 referred to above that, it is open even to a Plaintiff to sue for declaration of his title and prove in that suit that the error in his document of title in respect of the property forming the subject-matter of the suit was due to mutual mistake of himself and his vendor. In Santi Ranjan Das Gupta v. Dasuram Mirzamal Firm AIR 1957 Gau 49 the learned Judges have observed thus:

Oral or extraneous evidence in proof of fraud or mutual mistake may be given for obtaining a decree for rectification of a document where rights of third parties are not affected. In Mahendra Nath Mukherji v. Jogendra Nath Roy 2 C.W.N. 260 it was held that it was open to the Court having regard to proviso 1 to Section 92 of the Indian Evidence Act, to allow oral evidence to be put in to prove the mutual mistake.... Where there is mutual mistake of fact in a case, as here a Court administering equity will interfere to have the deed rectified, so that the real intension of both parties may be carried into effect, and will not drive the Defendant to a separate suit to rectify the instrument.... In Asitulla v. Sadatullah 28 C.L.J. 197 it was held that title may be established without rectification of an instrument, even though the time to secure a rectification of the instrument has elapsed, and that it is open to a party to give evidence to prove that his name has been omitted from the document by fraud or mistake.... It is necessary that fraud or mutual mistake must be proved before rectification is possible. Another condition of relief u/s 31 is that the rights of third parties be not affected.

Having regard to these decisions, I agree with the learned Counsel for the Respondent that it is open to the Respondent, without filing a separate suit for rectification of his document of title, to establish that he has title to the property by adducing extraneous evidence that there was a mutual mistake regarding the property conveyed and what was intended to be conveyed is the property in the suit and not the one described in his document of title.

There is no document of title to show that the Appellant and his predecessors owned the southern half of R.S. No. 139/1. Exhibit A-20, by which the Appellant''s father had purchased R.S. No. 138/2 and 18 cents in R.S. No. 138/1 purchased by him is north of the land belonging to Periyanayaki by right of purchase. The Appellant has admitted in his evidence that Periyanayaki is the wife of Kulla Padayachi, the predecessor-in-title of the Respondent. Thus, it is clear that the Appellant had no title to the southern half of R. S. No. 138/1 and that it belonged to the wife of Kulla Padayachi, the Respondent''s predecessor-in-title. There is, therefore, no reason to disagree with the Courts below that the Respondent has established his title to the suit property.

The learned Counsel for the Respondent contended that in view of the fact that the Respondent has been found to have title to the suit property, he would be entitled to a decree for possession of the property if the Appellant, does not prove that he has acquired title to the property by adverse possession for over the statutory period. He submits that even if the Appellant is found to be in possession for over the statutory period, he must establish that his possession was adverse and that he has acquired title by prescription before the Respondent could be non-suited in the suit for possession The Respondent has not contended that the possession of the Appellant and his predecessor-in-title, if any, was permissive at any time, such as that of a lessee or licensee, and that the Appellant is, therefore, bound to prove by positive evidence that the permissive possession had become adverse prior to the statutory period and that he has thereby acquired title by prescription. Therefore, if the Appellant and his predecessor-in-title are found to have been in possession of the suit property for over 12 years before the suit, that possession must be held to be adverse to the Respondent and his predecessor-in-title from the inception and the Respondent could not succeed in obtaining a decree for possession merely by proving his title to the suit property. In such cases it is unnecessary to go further and prove animus and acts of open and hostile possession as are required where ouster has to be established. As already stated, there is evidence to show that the suit property is comprised in Patta No. 669 and it is admitted even in the Respondent''s title deed, exhibit A-2 that the property is comprised in Patta No. 669. Admittedly the Respondent has not paid kist for Patta No. 669 at any time. There is no evidence to show that the suit property was included in Anjalai''s Patta or the Respondent''s patta. On the other hand, the Appellant''s father has paid kist for that Patta from 17th January 1946 to August 1957, as seen from the katchayat books, exhibits B-20 and B-21, and the Respondent has admitted in writing before the Executive First Class Magistrate, Vridhachalam, in M.C. No. 32 of 1968 that he had no possession of the suit property, and consequently that petition was dismissed on 18th January 1968. The Respondent had clearly no possession of the suit property even in 1968 and the Appellant''s father, who had been paying kist from 1946 to 1957, had continued to be in possession of the suit property even in 1968. Therefore, the Appellant had established that he and his father were in adverse possession of the suit property right from 1946 to the date of the suit instituted only in 1969. Therefore, I find that the Courts below have erred in holding that the Appellant has not proved his adverse possession of the suit property and also that the suit is in time. I find that the Appellant had satisfactorily proved acquisition of title to the suit property by adverse possession of himself and his father for over the statutory period and that the Respondent and his predecessor-in-title had not been in possession of the suit property at any time within that period and that the Respondent has lost his title to the suit property by the adverse possession and enjoyment of the Appellant and his predecessor-in-title and is consequently not entitled to the declaration and possession. The Courts below have clearly erred in law in disregarding the admission in writing of the Respondent made in 1968 in exhibit B-1 that he was not in possession, his admission in the evidence that he has not paid kist at any time for Patta No. 669 in which the suit property is included even as per the Respondent''s document of title, exhibit A-2, and the clear entries in exhibits B-20 and B-21 which show that the Appellant and his father had paid kist for Patta No. 669 right from 1946 to 1957 and holding that the suit is not barred by limitation. This Court is, therefore, entitled to interfere in the second appeal. The second appeal is allowed with costs throughout. No leave.