Dashrath Chowaram vs Shatruhan Singh

A.P. Sen, J.—The suit, out of which this appeal arose, was brought by the appellant, as plaintiff, for declaration of title and for rectification of a sale deed against the respondent. The dispute related to Khasra No, 366/1, area 1.42 acres, known as "Kanhardhana'''', which the plaintiff alleges to have been purchased by a registered sale deed (Ex. P-1), dated 9-6-1956, though the sale deed describes the property sold as Khasra No. 932/1, area 1.25 acres, known as "Tiliyabhata". The suit was decreed by the Court of first instance; but the decree has been reversed in appeal by the District Judge.

The point at issue between the parties is one of limitation. The question arose in this way. The Court of first instance held that the property sold was the land, bearing Khasra No. 366/1, i.e., the field known at "Kanhardhana"; but, due to a mutual mistake, the land, bearing Khasra No. 932/1, i.e., the field known as "Tiliyabhata", was mentioned in the sale deed. Following the observations of J. Sen J. in Rajaram v. Manik 1954 N L J 12 : A I R 1952 Nag. 90 : I L R 1951 Nag. 948, the Court of first instance held that where there was a mutual mistake in the expression of a contract, then, notwithstanding that no suit has been brought u/s 31 of the Specific Relief Act, 1877, corresponding to section 26 of the Specific Relief Act, 1963, a party is entitled to the grant of the relief on the ground of mistake, if it does not prejudicially affect the rights of third parties acquired in good faith and for value.

On appeal, the learned District Judge has affirmed the findings of the Court of first instance, in that he held, as a fact, that the property sold to the plaintiff was Khasra No. 366/1, i.e., the field known as "Kanhardhana", and that he was placed in possession thereof in pursuance of the sale deed (Ex. P-1). He has further found, as a fact, that by a mutual mistake, Khasra No. 932/1, i.e., the field known as "Tiliyabhata", was mentioned in the sale deed and that the mutual mistake came to the knowledge of the plaintiff in the year 1958, when the Defendant started denying his title to Khasra No. 366/1. The learned District Judge accordingly found that the mutual mistake had come to the knowledge of the plaintiff more than three years before the institution of the suit and, therefore, the suit was barred by limitation under Article 59 of the Limitation Act, 1963. In taking that view he placed reliance on the decision of Pollock J. in AIR 1948 67 (Nagpur)

The view of the learned District Judge that the plaintiff''s suit was barred by limitation can hardly be assailed. In Ajabsingh Imrat v. Jhabbulal (supra), the plaintiff relied on a plea of mistake. The finding was that he had come to know of the mistake in December, 1936 or January, 1937; and that as the suit was filed on 14th July 1941, the claim for rectification was barred by limitation. That precisely is the case here. The decision of J. Sen J. in Rajaram v. Manik (supra) is clearly distinguishable. There, the Defendant relied on the plea of mistake and claimed relief on that ground. His Lordship held that the combined effect of proviso (1) to section 92 of the Indian Evidence Act and section 31 of the Specific Relief Act was that a defendant may plead and prove any mistake in the expression of a contract, notwithstanding that he had not filed a suit for rectification. He can resist a suit on the ground that what was sold to him was different from what the document described. The point of distinction between that case and the present one lies in the fact that the plea of mutual mistake there was a plea in defence and, therefore, there was no question of limitation involved. This is made clear by J. Sen J. thus:

In the present case the defendant No, 1 has raised the plea of mutual mistake. No question of limitation arises on a case set up by the Defendant in his defence.

His Lordship then goes on to say--

The combined effect of proviso (1) to Section 92 of the Indian Evidence Aet and section 31 of the Specific Relief Act is that a defendant may plead and prove any mistake in the expression of a contract, notwithstanding that he had not filed a suit on the ground that what was sold to him was different from what the document described: vide Pollock and Mulla''s Indian Contract Act, 7th edition, page 730.

Section 26(1)(c) of the Specific Relief Act, 1963 now gives statutory recognition to the decision in Rajaram v. Manik (supra).

The result is rather unfortunate; but the plaintiff has to thank himself. He had, not chosen to avail himself of the remedy provided by section 26 of the Specific Relief Act, 1963, corresponding to section 31 of the Specific Relief Act, 1877, and brought a suit for rectification of the sale deed on the ground of a mutual mistake of the parties within the period provided therefor. He cannot, therefore, be granted the relief of rectification on the ground of a mistake; nor can he be granted the relief of declaration, because a suit for declaration has to be brought within three years of the date when the mutual mistake came to the knowledge of the plaintiff, under Article 113 of the Limitation Act, 1963.

The result, therefore, is that the appeal fails and is dismissed with costs. Counsel''s fee as per schedule or as per certificate, whichever is less.