Saturday, 13 March 2021

When a party can file suit for rectification of misdescription of immovable property in sale deed?

  He further argues that under Section 26 of the Specific Relief

Act, 1963, only in case of fraud or mutual mistake of the parties,

contract or other instrument in writing, can rectify the instrument.

He points out that in absence of pleadings relating to fraud or

mutual mistake, allowing rectification of sale-deed would be

contrary to the provision of Section 26 of the Specific Relief Act,

1963.

 Section 26, of course, says that it would be open to

a party to institute a suit for correcting the description

of the suit property, but the proviso to Section 26

clearly permits that where a party has not claimed any

such relief in his pleading, the court shall at any stage

of the proceeding allow him to amend the plaint on

such terms as may be just for including such claim.

From a plain reading of the provisions under Section

26 of the Act, there is no reason why the prayer for

amendment of the agreement to correct a part of the

description of the suit property from Chak No. 3 SSM

to Chak No. 3 SLM, later on converted to Chak No. 3

SWM could not be granted. In our view, it is only a

correction or rectification of a part of the description

of the suit property, which cannot involve either the

question of limitation or the change of nature of suit.

In our view, the suit shall remain a suit for specific

performance of the contract for sale and a separate

independent suit is not needed to be filed when the

proviso to Section 26 itself clearly permits either party

to correct or rectify the description of the suit property

not only in the plaint but also in the agreement

itself….”

27. In every sale transaction of land, to avoid further litigation or

any dispute, it is expected that the vendee should verify the title

deeds before entering into the agreement, visit the site and finally

after satisfying all the materials prepare draft sale deed. Therefore, it is not the only duty of vendor but it is the duty of both the parties to the contract for sale of land, to take care while mentioning description of properties in the sale-deed. Thus if there is any mistake in description of properties or boundaries in sale deed the same cannot be said to be a mistake of one party  and not of both  the parties to such contract.

28. In light of conclusion arrived at by this court that this is a

case of misdescription and not a case of mistaken identity and in a case of misdescription of the field Gat number and the boundaries, the boundaries would prevail over field Gat number, it cannot be said that the mistake in the present case is in respect of a matter which is essential to the agreement, therefore, sections 20 of Act 1872, would not apply to the present case.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR

SECOND APPEAL NO. 121 OF 2005

Sau. Varsha  Sahebrao Deshmukh Vs  Ghanshyam  Madanlal Goenka,

CORAM : ANIL S KILOR J.

DELIVERED ON: 31st JANUARY, 2020


The present appeal is preferred against the judgment and

decree dated 6th January, 2005 passed by the learned Second

Adhoc District Judge, Akola in Regular Civil Appeal No. 251/2003,

arising out of the judgment and decree dated 21st August, 2003

passed by learned 4th Joint Civil Judge, Junior Division, Akola in

Regular Civil Suit No. 350/2002, therby the lower appelate Court

set aside the judgment and decree passed by the trial Court and

decreed the suit for correction of sale deed and permanent

injunction in favour of the respondent no. 1/plaintiffs.

2. The appellant is the original defendant no.3 whereas the

respondent no.1 is the original plaintiff and respondent nos. 2 and

3 are the original defendant no.1 and 2 respectively.

3. The respondent no. 1 preferred a suit for correction of the

sale-deed and permanent injunction vide Regular Civil Suit No.

351/2002.

4. It is the case of the plaintiff/ respondent no. 1 that he had

executed two sale deeds each for land admeasuring 2 H 83 R, in

favour of the respondent no.2 and 3 on 11th May, 1999 and one sale

deed for land admeasuring 1 H 21 R, in favour of appellant on 25th

May, 1999, relating to a field Gat no. 278 owned by him, situated

at Mouje Katyar, Tq and Distt. Akola.

5. The respondent no.1/ plaintiff further states that four

boundaries mentioned in the said sale-deeds clearly demonstrate

that the same are relating to the field Gat No.278, however, in sale

deeds it had wrongly been mentioned as field Gat no. 207.

6. On the other hand the respondent no.2 and respondent no.3,

had also filed a suit bearing Regular Civil Suit No.350 of 2002, for

declaration and permanent injunction against the respondent no. 1,

alleging that the respondent no. 1 had falsely mentioned the four

boundaries in the sale-deeds in question and though they

requested him to correct the same, he did not pay heed to their

request.

7. The same was the defence taken by the appellant and

respondent no. 2 and 3 in their written statement to Regular Civil

Suit No.351/2002 preferred by the respondent no.1.

8. Learned trial Court decreed the Regular Civil Suit

No.350/2002, vide judgment and decree dated 21st August, 2003,

therby permanently restraining the respondent no. 1

Ghanshyamdas, from obstructing the peaceful possession of

respondent nos. 2 and 3, over the field bearing Gat no.207 and

directing the respondent no. 1 to correct the four boundaries in

sale-deeds in question within two months. The Learned trial Court

further dismissed Regular Civil Suit No.351/2002, filed by

respondent no. 1, Ghanshyamdas.

9. Feeling aggrieved by the same, the respondent no. 1, filed

two separate appeals bearing Regular Civil Appeal No.255/03 and

Regular Civil Appeal No. 256/03.

10. Learned lower appellate Court allowed both the appeals in

favour of respondent no. 1/ plaintiff Ghanshyamdas and

consequently decreed the Regular Civil Suit No.351/02 filed by

respondent no. 1 and dismissed Regular Civil Suit No.350/02 filed

by the respondent nos. 2 and 3. The present appeal is arising out

of the said judgment and decree dated 6th January, 2005.

11. This court while admitting the second appeal framed the

following substantial questions of law.

“Whether the first Appellate Court was justified in

reversing the judgment and decree passed by the trial

Court, without considering the evidence by the trial

Court while recording the findings against the plaintiff

as also the admission of the plaintiff in his crossexamination

that he had sold the field gat no.207

admeasuring 10H 83R to the appellant”.

12. Heard Shri S.V. Deshmukh, learned counsel for the appellant,

Shri S.C. Mehadia, learned counsel for the respondent no. 1 and

Shri C.A. Joshi, learned counsel for the respondent nos. 2 and 3.

13. Shri Deshmukh, learned counsel for the appellant, submits

that from the pleadings it will be revealed that correction of saledeeds

was sought on the ground that he had committed a mistake

while mentioning Gat No.207 in the sale-deeds. He further argues

that it is not the case of the respondent no. 1 that the said mistake

was committed by both the parties to the sale deeds in question.

Thus, he submits that as per Section 22 of the Indian Contract Act,

1872, a contract is not voidable merely because it was caused by

one of the parties to it being under a mistake as to a matter of fact.

14. He draws attention of this Court to Section 20 of the Indian

Contract Act, 1872 to submit that where both the parties to an

agreement are under a mistake as to a matter of fact essential to

the agreement, the agreement is void. Thus, he submits that in

absence of any pleading to the effect that both the parties to the

agreement have committed mistake as to matter of fact, the prayer

made by the respondent no. 1, Ghanshyamdas in his suit, is not

tenable.

15. He further argues that under Section 26 of the Specific Relief

Act, 1963, only in case of fraud or mutual mistake of the parties,

contract or other instrument in writing, can rectify the instrument.

He points out that in absence of pleadings relating to fraud or

mutual mistake, allowing rectification of sale-deed would be

contrary to the provision of Section 26 of the Specific Relief Act,

1963.

16. He submits that the trial Court has misplaced its reliance on

the case of Sheodhyam Singh Vrs. Sanicharkaur reported in AIR

1963 SC 1879.

17. Per contra, Shri S.C. Mehadia, learned counsel for

respondent no.1, submits that though in the sale-deed field Gat

no.207 was mentioned, in fact the boundaries mentioned in saledeeds,

are of Gat no.278. Thus, the appellant, respondent no. 2

and 3 were well aware of the fact as related to the land which was

actually sold and they have been put into possession. Hence while

signing the sale-deeds description of boundaries were acceptable to

both the parties and therefore, the mistake in mentioning the field

Gat. number, cannot be treated as a mistake committed by one

party and not by both the parties. He submits that the contention

of the learned counsel for the appellant as regard to Sections 20

and 22 of Indian Contract Act, 1872 and Section 26 of the Specific

Relief Act, 1963, is not tenable.

18. Shri Mehadia learned counsel for the respondent no.1,

argues that in the present matter adverse inference should be

drawn against the appellant as she did not enter into witness box,

but, her husband who is the power of attorney holder of her,

entered into witness box. He has further drawn my attention to the

cross-examination of power of attorney the holder of the appellant,

wherein he has deposed that six months after the sale-deed, the

appellant first time got the knowledge about the wrong description

of boundaries and further admits that for correction of boundaries,

no notice was issued to the respondent no.1/plaintiff.

19. To consider the rival contentions of the parties, I have gone

through the record and proceedings with the help of the learned

counsel for the parties and perused judgments and decrees of both

the courts below.

20. In the case of Sheodhyam Singh Vrs. Sanicharkaur (Supra),

the Hon’ble the Supreme Court of India, has observed thus:

“7. We are of opinion that the present case is

analogous to a case of misdescription. As already

pointed out the area, the khata number and the

boundaries all refer to Plot No. 1060 and what has

happened is that in writing the plot number, one zero

has been missed and 1060 has become 160. It is also

important to remember that there is no plot bearing

No. 160 in Khata No. 97. In these circumstances we

are of opinion that the High Court was right in

holding that this is a case of misdescription only and

that the identity of the property sold is well

established, namely, that it is Plot No. 1060. The

matter may have been different if no boundaries had

been given in the final decree for sale as well as in the

sale certificate and only the plot number was

mentioned. But where we have both the boundaries

and the plot number and the circumstances are as in

this case, the mistake in the plot number must be

treated as a mere misdescription which does not affect

the identity of the property sold. The contention of

the appellants therefore with respect to this plot must

fail.”

21. The Hon'ble Supreme Court of India in a case of Subhaga v.

Shobha, (2006) 5 SCC 466,has observed thus:

“That a property can be identified either by

boundary or by any other specific description is well

established. Here the attempt had been to identify

the suit property with reference to the boundaries

and the Commissioner has identified that property

with reference to such boundaries. Even if there was

any discrepancy, normally, the boundaries should

prevail.”

22. In the present matter the power of attorney of the appellant,

Dadarao in his cross-examination, has deposed that the appellant

got the knowledge after six months of execution of sale deeds,

about wrong description of boundaries in the sale-deed. He further

admits that no notice for correction of boundaries has been issued

to the respondent no.1.

23. Thus, the appellant is admitting that the field which is in her

possession, is having the same boundaries as are mentioned in the

sale-deed and the description of boundaries mentioned in the sale

deeds do not match with the boundaries of field Gat no. 207. At

the same time the appellant is not disputing that the boundaries

mentioned in the sale-deeds in question, are of the field Gat

no.278.

24. The above referred admitted facts speak for themslves that at

the time of executing sale-deeds and while taking possession of the

field in question, the appellant and respondent nos. 2 and 3, did

not raise any dispute pertaining to the boundaries, having found

that the same matched with the land they have been put into

possession. Thus it is clear that with complete clarity as regards

which land they have purchased, the possession had been taken by

them without any demur.

25. In light of above facts this is a case of misdescription and not

a case of mistaken identity as there is no doubt as to the identity of the field purchased by the appellant but there is only misdescription of field Gat number, that could be treated as a mere irregularity and in a case of misdescription of the field Gat number and the boundaries, the boundaries would prevail over field Gat number.

26. The Hon'ble the Supreme Court of India in case of Puran

Ram v. Bhaguram, (2008) 4 SCC 102, has observed thus:

“13. A reading of these two conditions made under

Section 26 of the Act would amply show that either

party may institute a suit to have the instrument

rectified or a party who has already filed a suit in

which any right arising under the instrument is in

issue may claim in his pleading that the instrument be

rectified. So far as the facts of the present case are

concerned, it cannot be doubted that the main issue in

the suit for specific performance of the contract for

sale was relating to the agreement for sale in which a

part of the description of the suit property was

wrongly given by mutual mistake and therefore,

needed to be amended.

14. Section 26, of course, says that it would be open to

a party to institute a suit for correcting the description

of the suit property, but the proviso to Section 26

clearly permits that where a party has not claimed any

such relief in his pleading, the court shall at any stage

of the proceeding allow him to amend the plaint on

such terms as may be just for including such claim.

From a plain reading of the provisions under Section

26 of the Act, there is no reason why the prayer for

amendment of the agreement to correct a part of the

description of the suit property from Chak No. 3 SSM

to Chak No. 3 SLM, later on converted to Chak No. 3

SWM could not be granted. In our view, it is only a

correction or rectification of a part of the description

of the suit property, which cannot involve either the

question of limitation or the change of nature of suit.

In our view, the suit shall remain a suit for specific

performance of the contract for sale and a separate

independent suit is not needed to be filed when the

proviso to Section 26 itself clearly permits either party

to correct or rectify the description of the suit property

not only in the plaint but also in the agreement

itself….”

27. In every sale transaction of land, to avoid further litigation or

any dispute, it is expected that the vendee should verify the title

deeds before entering into the agreement, visit the site and finally

after satisfying all the materials prepare draft sale deed. Therefore,

it is not the only duty of vendor but it is the duty of both the parties

to the contract for sale of land, to take care while mentioning

description of properties in the sale-deed. Thus if there is any

mistake in description of properties or boundaries in sale deed thesame cannot be said to be a mistake of one party and not of both  the parties to such contract.

28. In light of conclusion arrived at by this court that this is a

case of misdescription and not a case of mistaken identity and in a case of misdescription of the field Gat number and the boundaries,

the boundaries would prevail over field Gat number, it cannot be

said that the mistake in the present case is in respect of a matter

which is essential to the agreement, therefore, sections 20 of Act

1872, would not apply to the present case.

29. Similarly as observed above that if there is any mistake

in description of properties or boundaries in sale deed the same

cannot be said to be or considered to be a mistake of one party and

not of both the parties to such contract, therefore, sections 22 of Act

1872, would also not apply to the present case.

30. A reading of Section 26 of the Act would amply show

that either party may institute a suit to have the instrument

rectified and it would be open to a party to institute a suit for

correcting the description of the suit property. In view of above

settled law position I have no hesitation to hold that the plaintiff/

respondent no. 1, is entitled for relief of rectification of Gat number

mentioned in the sale deeds in question as sought for in the suit,

under Section 26 of At,1963.

31. In the above backdrop I hold that the learned lower

appellate Court has not committed any error of law in allowing

both the appeals filed by the respondent no. 1. Hence I do not find

any merit in the present matter or any substantial question of law

involved. Accordingly, the appeal is dismissed. No order as to

costs.

JUDGE


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