Basudev Das and Another vs Somenath Das

Narasimham, C. J.

This is an appeal, by leave from the judgment of justice J.K. Misra, in Second Appeal No. 217 of 1959, reversing the concurrent decision of

the two lower courts and decreeing the plaintiffs suit with costs throughout.

The disputed property consists of 1.54 acres (sic) Survey No. 185 of village Bodoknanda, situated within the zamindary of Khallikota in

Ganjam district. That Survey No. has a total area of 4.43 acres and had originally belonged to a joint family consisting of the plaintiff (respondent)

and his co-sharers, including his cousin Natabar and one Mukuna. The plaintiff''s case was, however, that by an amicable partition of the year

1936 the above portion of the Survey No. tell to the share of Natabar. After Natabar''s death childless, his widow Kanchan first executed an

agreement tor sale, of the land in favour of the plaintiff on 18-4-42. But when she subsequently resiled from the agreement, the plaintiff by suit for

specific performance of contract (I. S. 94 of 1946) obtained a decree against her and got the sale deed executed through court sometime in 1949.

According to the plaintiffs he also obtained possession through Court. Thus the plaintiff claims title and possession over the disputed property, but

as a cloud was cast on his title by the order of acquittal passed by the Sub-Magistrate of Kodola on 27-9-1955 in Cr. Case No. 165/57 in which

defendant 1 was the accused he brought the suit under appeal tor declaration of his title and other consequential reliefs.

The defendants however contended that the entire Survey No. 185 was sold away by the Zamindar of Khallikote in execution of a rent decree

in 1944 in the Court of the Revenue Divisional Officer, Chhatrapur and purchased by one Paramananda Mohapatra. Ext. B is the sale certificate

dated 18-3-1944 in Execution, Proceeding No. 1723 of 1942. Later on the auction purchaser Paramananda Mohabatra sold the disputed

property (a portion of Survey No. 185) in favour of Satyabnamam defendant No. 2 by a registered sale deed, Ext. F dated 7-6-45. Defendant

No. 1 is the husband of defendant No. 2. The defendants therefore claimed superior title to the property by virtue of the aforesaid rent saie and the

subsequent private sale from the auction purchaser in the name of defendant No. 2.

It was very properly conceded in all the Courts that if the sale certificate (Ext. B) be construes as referring to Survey No. 185, the plaintiffs

claim must fail. The plaintiff himself was one of the parties in that rent sale and execution proceeding and his vendor, Kanchan was also a party.

Hence once the title of Das''s (Plaintiffs) family to plot no. 185 had been completely extinguished by the rent sale Kancnan could not possibly sell

the disputed land to the plaintiff and confer a valid title on him. But on behalf of the plaintiff it was contended that as the sale certificate (Ext. B)

described the property sold as Survey No. 186 of the village, it just be held not to apply to the disputed property.

The sale certificate (Ext. B) describes the defendants and judgmant-debtors as (i) Chakrapani Das, (ii) Kanchan Dei and (iii) Somenath Das

(plaintiff). Chakrapani is admitted to be the son of Mukund who was the first cousin of Somenath and Kanchan''s husband Natabar. It is further

stated that the plots that were sold away by virtue ot that certificate were the occupancy lands of the aforesaid judgment debtors. But the survey

number is given as 186 and the area of the land is also noted as 4.43 acres. It is stated by D. w. 1 that Survey No. 186 of that village has an area

of 1.32 acres only. There is also the admission of the plaintiff (P. W. 4) that this Survey number does not belong to the plaintiff''s family, but to one

Narasingho Satpathy and others. Thus we find that the sale certificate which is the document of title of the defendants contains contradictory

statements. Though the total area and the names of the judgment debtors seem to refer to Survey Number 186, the Survey number has been

wrongly shown as 186. On behalf of the defendants it was urged that this was a misdescription and the real Survey number was 185 because that

Survey number alone had an area of 4.43 acres and it alone belonged to the Das''s (Plaintiff''s) family. The plaintiff as P. W. 4 while admitting that

there was a rent suit and an execution proceeding against him, pleaded ignorance as to whether the survey number 186 mentioned in the sale

certificate (Ext. B) was a mistake for survey No. 185. But defendant No. 1, as D. W. 1 stated that the number given in the sale certificate was a

mistake and that real survey number 185, was the subject matter of the rent suit by the Zammdar and that that plot was purchased by

Paramananda. He is not a stranger but an agnate of the plaintiff, being the brother of Chakrapani, as one ot the judgment debtors in the execution

proceeding. but he admitted that in a previous private partition amongst the brothers (all being the sons of Mukunda) he did not get a share in

Survey No. 185.

The two lower Courts relied on his evidence and also on the admission of the plaintiff himself that Survey No. 186 belonged to some Satpathis

and on the evidence of D. w. 1 that its area was only 1.38 acres. Hence they thought that the sale certificate (Ext B) actually related to survey no.

185 and that there was a misdescription of the plot by giving the wrong survey number 186. The learned Single Judge of this Court, however, not

satisfied that this was a case of mere misdescription. He was of the view that the evidence on this point was not conclusive and that there was a

possibility that in the original rent suit brought by the zamindar survey no. 186 might have been mentioned. aS the records of the execution

proceedings were all destroyed the original documents could not be obtained. The learned Judge also refused to attach much importance to the

oral evidence of defendant no. 1 saying that it was a self-serving statement, and that the defendants ought to have adduced independent evidence

on this question. Hence he reverses the judgments of the two lower Courts.

The limitations of the High court in second appeal have been reiterated in several decisions of the Supreme Court including the latest,

unreported, decision in R. Ramachandran Ayyar Vs. Ramalingam Chettiar, . It has been laid down that a mere finding of tact cannot be interfered

with however gross and inexcusable it may be. It is true that the sale certificate (Ext. B) is a document of title and the construction ot a document of

title has always been held to be a question of law. But in the present case, the question is not merely one of construction of a document of title, it is

a case of construing a document in the light of extrinsic evidence adduced by the parties, namely the evidence of D. W. 1. Appreciation of the

evidence of D.W. 1 will be a simple question of fact. It is true that he is the husband of defendant no. 2 and is a highly interested party but once the

two Courts of fact have believed the testimony and construed the sale certificate in the light of his evidence, it is difficult to say that any quesiton of

law arises.

The main question for consideration, therefore, is whether in construing the sale certificate extrinsic evidence is admissible. In my opinion, such

evidence will be admissible by virtue of Section 95 read with Section 97 of the Evidence Act. The survey number, the names of the tenants and the

area of the plot do not tally. The area and the names of tenants indicate that the survey number actually sold was 185 though it was misdescribed

as 186, under such circumstances the trial Court rightly allowed extrinsic evidence to be adduced and it appears that no objection was taken to the

admission of such evidence. Having taken such evidence the two lower courts held this was a case of mere misdescription of the survey number

and construed the sale certificate as referring only to survey number 185.

Mr. H.G. Panda emphasised the distinction between ''misdescription'' ot property on the one hand and ''mistaken identity'' of the same on the

other, and in support of this distinction he relied on Thakur Barmha v. Jiban Ram, 41 I.A. 38 and Ramabhadra Naidu v. Kadiriyasami Naicker 48

I.A. 155 : AIR 1922 PC 252. The distinction between mistaken identity and misdescription is well settled. Where the language of a document is

plain and unambiguous and correctly applies to existing tacts a party will not be permitted to say mat the property referred to in that document was

some other property. This principle is laid down in Section 94 of the Evidence Act and in the two aforesaid decisions of the Privy Council there

was no ambiguity in the documents in question, nor could it be safd Wat the recitals therein did not apply accurately to existing facts. In fact in 41

I.A 38 their Lordships pointed out we distinction between misdescription and mistaken identity in the following terms:

A property fully identified in the schedule may be in some respect misdescribed, but that is not the present case. Here we find an existing property

accurately described in the schedule, and the order of the Subordinate Judge grants a sale certificate which states that another and a different

property has been purchased at the the Judicial Sale.

In the present case however the recitals in the sals certificate though plain in themselves do not fit in with the admitted facts, viz. the names of the

tenants and the area. Hence either the survey number must be wrong or the names of the tenants and area given must be wrong. In such

circumstances extrinsic evidence was admissible under Sections 95 and 97 of the Evidence Act, as was held in Karuppa Goundan v. Periatnambi

Goundan ILR Mad 397. There is also a recent decision of the Supreme Court reported in Sheodhyan Singh and Others Vs. Musammat Sanichara

Kuer and Others, where the aforesaid two Privy council decisions were noticed and on a construction of the sale certificate and other documents

in that case it was held that plot No. 1060 was wrongly described as plot No. 160. It is true that in that case the conclusion was partly based on

the fact that the boundaries of the land as described in the sale certificate showed that the plot could not be 1050. But here though the boundaries

of survey No. 186 nave not been given in the sale certificate, the area and the names of the tenants coupled with the evidence of defendant no. 1

(D.W. 1) are sufficient to show that there was a mis-description of the plot, especially when me plaintiff himself admitted frankly that plot No. 186

belonged to some Sathpathis who are utter strangers to the family.

In the record of rights for the village prepared in 1953 the names of the plaintiff, Kancnan, Gopi (defendant No. 1) Satyabhama (defendant 2)

are jointly recorded in respect of plot No. 185. It was urged that the record of rights was inconsistent with the defendant''s case, because it the

rights of the family of the plaintiff were extinguished by the rent sale and the property was purchased by Paramananda who only sold a portion of

the plot to defendant No. 2, the name of paramananda and defendant No. 2 should have b?en entered in the record of rights. The continuance of

the name of Somenath and Kanchan in the records of rights as late as 1953 urged as a circumstance, to show that there was no mis-description of

the plot in the sale certificates, the plaintiff was unable to explain now the name of defendant no. 2 was recorded, it is not the plaintiff''s case that

satyabhama had obtained an interest in the plot on, any other manner. Her sole claim is based on, her purchase from Paramananda who had

purchased it at the earlier rent sale. Thus though the record of rights may be against the interests of Parmananda it will, to some extent, support the

defendants'' contentions. In any case it will be safe to say that the record of rights does not conclusively support the case of either party. We have

therefore to fall back on a construction of the sale certificate coupled with the extrinsic evidence and admissions made by the plaintiff. The learned

Judge observed that the defendant could have led secondary evidence to show that what was the plot that was included in the plaint in the rent suit.

But as the plaintiff was one of the defendants in we rent suit he could have also proved that because a copy of the plaint must have been served on

mm. The original records have been destroyed and the defendants being subsequent purchasers would certainly nave difficulty in producing

secondary evidence. But defendant being one or the cosharers of the family (though not having any interest in plot No. 185) is competent to say

that it was this plot that was the subject matter of the execution sale and where he was believed by both the courts of fact, the High Court in

second appeal was not justified in rejecting his testimony as self serving statement.

For these reasons we allow the appeal set aside the Judgment of the learned Single Judge of this Court and restore the judgment of the District

Judge in T.A. 82/1958. The respondents must pay costs to the appellants throughout.

Barman, J.

I agree.