Rangasawmi Aiyangar (died) and Another vs Sowri Aiyangar

This is a suit to recover possession. Plaintiff''s case was that he purchased survey No. 92B from the owners in April 1911 and that the

defendant is wrongfully in possession of it. The defendant pleaded that the same vendors conveyed to him the property in dispute in 1908 and that

although the conveyance (Exhibit II) describes the land sold as survey No. 90B, his vendors intended to sell, and he intended to purchase, only

survey No. 92B. He also alleged that he was put in possession of this latter number under the sale-deed.

The issue raised in the case was whether it was survey No. 90B or 92B that was sold to the defendant. The Munsif agreed with the defendant''s

contention and dismissed the suit. In appeal, the Subordinate Judge held that evidence to prove that what was actually sold was inadmissible u/s 92

of the Evidence Act and decreed the plaintiff''s claim.

We think the Subordinate Judge is wrong. The written statement clearly sets up a case of mistake in the description of the property sold. There

can be no doubt that on the allegations contained in the written statement, the defendant would be entitled to claim rectification of his sale-deed u/s

31 of the Specific Relief Act. u/s 92, Clause (a), any fact may be proved which would entitle any person to any decree on the ground of ""mistake

of fact or law."" Thus, it is clear that if he went to Court as plaintiff, the defendant could have claimed relief by way of injunction against the plaintiff

from interfering with his possession and to have his sale-deed rectified. Does the fact that the defendant is resisting the plaintiff''s claim disable him

from setting up the plea which could have availed him as plaintiff. We think not. We find nothing in the language of Section 92, Clause (a), which

indicates that its benefit can be invoked only by the plaintiff. In Mahendra Nath Mukerjee v. Jogendra Nath Roy Chaudhry 2 C.W.N. 260 it was

held that the defendant can protect himself by such a plea. See Dagdu v. Bhana 28 B.P 420 : 6 Bom. L.R. 126. In this Court it was decided in

Karuppa Gounden v. Periathumbi Gounden 30 M.P 397 : 2 M.L.T. 336 and Mahadeva Aiyar v. Gopala Aiyar 8 Ind. Cas. 390 : 34 M.P 51 : 8

M.L.T. 289 : (1911) 1 M.W.N. 36 that a plaintiff can sue to, recover the right property notwithstanding misdes-cription in his document of title.

Reliance was placed in these two cases on the proviso to Section 92. None of these cases have been considered by the Subordinate Judge. It is

true that Section 94 has no application as pointed out by him, but the combined effect of Section 92, Clause (a), and of Section 31 olthe Specific

Relief Act leaves no room for doubt that the defendant can resist the suit on the ground that what was sold to ham was different from what the

document described.

Mr. Narasimha Aiyangar contends that on the facts he will be able to show that there was no mistake. We must reverse the decree of the

Subordinate Judge and remand the appeal for disposal on the merits. Costs to abide the result.