Gerela Kalita and Another vs Dharmeswar Saikia and Others

C.P. Sinha, C.J.—This is a second appeal by the defendants 5 and 6 to an action for rectification of a certain mistake which crept in the deed of sale in favour of the plaintiff. The facts leading to this appeal are that the plaintiff had purchased 2; bighas and odd of land of plot No. 418 having an area of 9 bighas 3 kathas and odd. Before purchase ho was in possession of this very property as a mortgagee. The vendors of the plaintiff would not, however, register the document in his favour and he had, therefore, to take recourse to compulsory registration of the document, in the meanwhile, what happened was that the vendors had passed on the property to some other persons by way of sale, namely, defendants 2 and 3 and thereafter the defendants sold to the present appellants, defendants 5 and 6, who are father and son.

Thereafter there was a suit by the plaintiff for declaration of title and recovery of possession in which all these defendants were made parties. The suit was fought up to the High Court and the plaintiff''s decree for recovery of possession was upheld by this Court also. There was execution of the decree and the decree was executed by giving the plaintiff possession over the suit land. After all this had been done, the plaintiff woke up to the situation that the plot number which was mentioned in the sale deed was wrongly mentioned, namely, that in place of plot No. 435, plot No. 418 was mentioned. Thereafter he brought the present suit for rectification of this mistake in the instrument and consequential relief was also asked for in the shape of rectifying that mistake in all the proceedings taken thereafter, namely, the plaint, the decree and the execution petition. The first court dismissed the suit. On appeal, the lower appellate court, however, decreed the plaintiff''s suit in the following terms:

Ordered that the dag No. 41.8 in the sale deed (Ext. 2) in favour of the plaintiff be corrected as dag No. 435 and the judgments and decrees and plaint of T. Section 74 of 1945 be accordingly corrected and the Execution petition of Execution Case No. 25 of 1950 be also corrected. Ordered also that the plaintiff do get khas possession of the suit land on the strength of tile corrected decrees in T. Section 74 of 1945 and the two appeals thereon. The original suit is thus decreed on contest with cost.

It is against this decree that the present appeal has been filed. The case of the defendants-appellants also was that they had purchased plot No. 418 but they contested the present suit of the-plaintiff on the ground that the suit was not maintainable alter the plaintiff had taken out execution of the decree in respect of plot No. 418 and of: which he was given possession. It is also submitted that Section 31 of the Specific Relief Act has-no application. The last submission made is that: the suit was barred by the provisions of Order 2 Rule 2-of the C. P. C. I shall take up the point about the maintainability of the suit and the non-application of Section 31 of the Specific Relief Act together.

Section 31 of the Specific Relief Act has to be read:

When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing does not truly express their intention, either party, or his representative in interest, may institute a suit to have the instrument rectified; and if the Court finds it clearly proved that there has been fraud or mistake in framing the instrument, and ascertain the real intention of the parties in executing the same, the Court may in its discretion, rectify the instrument so as to express that intention, so far as this can be done without prejudice-to rights acquired by third persons in good faith and for value.

This section, therefore, permits a suit to have the-instrument rectified if there has been a mutual mistake of the parties or where fraud has been committed. In either case, the section permits institution of a suit for correction of an error. In the present case, the error is a mistake on behalf of both the parties, the vendor and the vendee, so far as the sale deed in favour of the plaintiff is concerned, and, the court below has definitely-found that what the plaintiff wanted to purchase-and what his vendors wanted to sell was a portion of plot No. 435 and not plot No. 418, although, both the plots are covered by the same Patta No. 222. If that is the fact that the parties intended to buy and sell plot No. 435 or a part of it and if instead in the instrument a wrong number has been mentioned, in my opinion, the section permits the correction of such a mistake.

The learned Advocate-General had conceded that so far as the interpretation of this section is concerned, he cannot rely upon any authority because none has been brought to his notice. In my judgment, the provision of Section 31 of the Specific Relief Act permits such a course as has been adopted by the plaintiff. It is true that in this case this mistake has been discovered after a long time, after the first suit was instituted by the plain-tiff which came up to the High Court and that decree in the suit was executed; but, in my opinion, so far as the provisions of this section are concerned, there cannot be any time limit for the discovery of the mistake or of the fraud. At: any time-when a mistake is discovered or a fraud comes to light, it is open to the parties affected to come to court and institute a suit for the rectification of the mistake in the instrument.

The learned Subordinate Judge has referred to two cases --one is the case of Santi Ranjan Das Gupta v. Dasuram Mirzamal Firm, reported in AIR 1957 GAU 49 , and the other is the case of Bela Debi Vs. Bon Behary Roy and Others, But, none of these cases, in my opinion, has interpreted the provisions of Section 31 of the Specific Relief Act. In my judgment, therefore, the decree allowing the plaintiff to have the mistake rectified must be upheld and it must be held that a suit, like the one instituted by the plaintiff is maintainable u/s 31 of the Specific Relief Act. It has to be mentioned that the appellants also in their sale deed have mentioned plot No. 418 although it is their case now that they had bought from out of plot No. 435. It appears, therefore, that everybody was misled in mentioning the actual plot number which was the subject-matter of the transaction between the plaintiff and his vendors.

So far as the other submission of the learned Advocate General is concerned that the provisions of Order 2 Rule 2 of the C. P. C. barred the institution of the present suit, it is enough to state that the cause of action which is mentioned in the present action, namely, the discovery of the mistake was not the cause of action which gave rise to their previous suit and this cause of action could not possibly have arisen at the time when the previous suit was instituted, for the mistake was discovered after the decree was executed.

I would, therefore, affirm the decree of the Court below and would like to add that if the plaintiff-respondents have been given delivery of possession of plot No. 418, it must he held to have been done by mistake. That delivery of possession must be withdrawn.

The appeal, therefore, is dismissed with costs.