Brij Lal and Others vs Kartar Kaur and Others

This Second Appeal has arisen out of a suit filed by respondents Nos. I and 2 for a declaration that they were owners in possession of agricultural land measuring 39 Bighas 8 Biswas comprised of Khasra Nos. 4269, 4270, 4280 and 4281 and that the sale deed, registered on November 9, 1973, by respondent No. 3 in favour of the appellants respecting Khasra Nos. 4280 and 4281 was ineffective against their rights.

The case pleaded by the plaintiffs in the trial Court was that Shrimati Sadan Kaur, respondent No. 3, sold land measuring 39 Bighas 8 Biswas comprised of four Khasra numbers, noted above, vide registered sale deed dated June 12, 1959, but inadvertently khasra Nos. 4280 and 4281 were not incorporated in the sale deed. When this mutual mistake was discovered by the parties, respondent No. 3 executed the rectification deed, Ext, P-8, in their favour on September 11, 1963. The plaintiffs are in possession of the whole land measuring 39 Bighas 8 Biswas since its, purchase on June 12, 1959. However, later on, taking advantage of the omission of the said two Khasra numbers in the main sale deed the appellants got them transferred in their favour on November 9, 1973, but the land having been already sold to them, it had no effect on their rights.

The suit was contested by the appellants, who controverted the case set up by the plaintiffs and pleaded that land measuring 20 Bighas 5 Biswas comprised of Khasras Nos. 4269 and 4270 only was sold in favour of the plaintiffs and they have no right, title or interest in the remaining land. It was further pleaded that the land comprised of Khasras Nos. 4280 and 4281 was in possession of the appellants since its purchase by them.

The trial Court, after recording evidence of the parties, found the plaintiffs to be in possession of land measuring 39 Bighas 8 Biswas since the date it was purchased by them and upholding the plea of the plaintiffs decreed the suit. Its judgment and decree were affirmed on appeal by the learned Additional District Judge, which led to the filing of this Second Appeal by the subsequent vendees.

The two Courts below for recording the finding that the sale made in favour of the plaintiffs was of 39 Bighas 8 Biswas relied on Exhibit P-8, statement of Jagan Nath (P. W. 2), who deposed that about 39 Bighas of land was sold by Shrimati Sadan Kaur on the same date for Rs. 5,500/- to Tota Ram and the statement of respondent No. 3 herself wherein she admitted that the same number of Bighas of land was sold to Tota Ram on June 12, 1959. The learned counsel for the appellants has challenged the concurrent finding of the Courts below on the ground that the evidence relied upon was inadmissible in evidence. So far as Exhibit P-8 is concerned, the learned counsel relied on Section 93 of the Evidence Act, which provides that when the language used in the document is, on its face, ambiguous or defective, evidence may not be given of facts which would snow its meaning or supply its defects. According to the learned counsel, the recital in the document regarding the, description of the property was ambiguous on its very face and, as such, no evidence could be led to supply its defects. The contention raised is wholly misconceived. In my view, it is not a case of ambiguous or defective document on its very face. What happened was that the parties, in fact, entered into a sale transaction respecting 39 Bighas 8 Biswas of land, but by inadvertent mutual mistake-two Khasra numbers were not mentioned in the sale deed. In such circumstances, the vendees could well approach the Court u/s 26 of the Specific Relief Act for rectification of the sale deed. Instead of resorting to the Court for rectification, the parties mutually agreed to execute a rectification deed, that is Exhibit P-8. This document, therefore, cannot be said to be as extraneous evidence meant to supply any defects as envisaged u/s 93. Being a deed of rectification, it forms part of the original sate deed and the sale transaction, in the present case, would be deemed to have been completed through these two deeds, the original sale deed and the rectification deed. Reliance by the learned counsel on S. 93, is, therefore, wholly misplaced. Even if it may be accepted for the sake of argument that Exhibit P-8 amounted to extrinsic evidence, still S. 93 would not bar. its admissibility. As stated by Phipson in his Treatise on Evidence (7th Edition) "though it is still commonly said that parol evidence may not be given to explain a patent, ambiguity, yet this is not generally true". Indeed the only patent ambiguities that :are not open to explanation by extrinsic evidence appear to be those which, in the nature of things, are incapable of explanation, but this. does not apply to other patent ambiguities, such as where the property is conveyed by incomplete or inconsistent descriptions. The contention raised to the admissibility of Exhibit P-8, therefore, has to be overruled.

P. W. 2 Jagan Nath; in fact, proved an entry in the register which showed that land measuring 39 Bighas 9 Biswas was sold for Rs. 5,500/- by respondent No. 3 to Tota Ram on the same date on which the sale deed was executed in favour of the plaintiffs by her. Although his statement may not be admissible to prove the contents of the sale deed, but it would certainly be admissible to prove the factum of sale. The statement of Shrimati Sadan Kaur being an, ad mission would also be admissible to prove the factum of sale in favour of Tota Ram even if these two statements are ignored as the terms of sale are concerned. Exhibit P-8 by itself would be sufficient to sustain the finding of the two Court below that, in fact, land measuring 39 Bighas 8 Biswas comprised of four Khasra numbers, referred to above, was sold in favour of the plaintiffs. The concurrent finding of the Courts below id this regard is accordingly affirmed:

The only other finding, recorded by the two Courts below, challenged by the learned counsel for the appellants, was on the queen of possession over the land in dispute. The finding recorded in this regard is purely a finding of fact and was sought to be challenged on the ground that the evidence in this respect consisting of the revenue record bas not been properly appreciated. I am afraid, it is not open to me in Second Appeal to reappraise the evidence and disturb that finding on the ground urged.

For the reasons recorded above, this appeal fails and is hereby dismissed but without any order as to costs.

Appeal dismissed.