Chandan Singh v. Atma Ram — 1979 DIGILAW 209 (ALL)

JUDGMENT P.N. Goel, J. - This is an appeal by Sardar Chandan Singh, defendant No. 1 arising out of a suit for rectification of a permanent lease deed dated 23-4-1965 executed by Syed Qasim Husain, defendant respondent No. 3 as Mutawalli of Waqft Immam Bara Mohalla Answariyan Masjid Khajoorwali, Sahranpur, defendant respondent No. 2 in favour of Atma Ram, plaintiff respondent No. 1. 2. Syed Qasim Hussain as Mutawalli of the Waqf executed a patta on 30-4-1965 in favour of the appellant of plot No. 2139 measuring 11 bighas of Khewat No. 590 for five years. 3. Briefly stated the case of the respondent No. 1 was that he was in actual possession of plot No. 2139 for the last 10-12 years before the filing of the suit on 23-12-1965 and that on 23-4-1965 Syed Qasim Hussain as Mutawalli executed permanent lease deed of the said plot in his favour and by mistake plot No. 2138 was typed out in the lease-deed. The lease deed is a bilateral document. 4. There took place proceedings under Section 145, Cr. P. C. between the respondent No. 1 and the appellant which ended in favour of the appellant and as such the respondent No. 1 was obliged to file the suit. 5. The suit is under Section 26 of the Specific Relief Act, 1963. This section lays down that when, through fraud or a mutual mistakes of the parties, a contract or other instrument in writing does not express their real intention the either party or his representatives in interest may institute a suit to have instrument rectified. Thus this section lays down that if the written document does not express the real intention of the parties to the contract on account of fraud or a mutual mistake, either party may bring a suit for the rectification of the document. It means that a document can be rectified by a court if the real intention has not been expressed therein for two reasons: (1) fraud or (2) mutual mistake. "It is common knowledge that the transaction which is a result of fraud is voidable in law. (vide Section 19 Contract Act). 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 and not voidable (vide Section 20 of the Contract Act). "It is common knowledge that the transaction which is a result of fraud is voidable in law. (vide Section 19 Contract Act). 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 and not voidable (vide Section 20 of the Contract Act). The reason behind this section is that both the parties should agree upon the same thing in the same sense (vide Section 13, Contract Act). But if the parties have agreed to the same thing in the same sense and a mistake has crept in the document evidencing the agreement, the mistake can be rectified under Section 26. It means that Section 26 supposes a prior valid agreement between the parties. 6. In the present case the learned Additional Munsif, who tried this suit, concluded that the essentials of Section 26 of the Specific Relief Act were not proved by plaintiff-respondent No. 1. The Additional Munsif further found that the appellant was in possession of the disputed land and that he had acquired valuable rights. On this ground also the lease deed could not be allowed to be rectified. The respondent No. 1 filed appeal before the District Judge, Saharanpur which was decided by II Temporary Civil and Sessions Judge on 31-3-1969. The Civil and Sessions Judge found that Plot No. 2138 was mentioned in the lease deed by some mistake or fraud and that the respondent No. 1 was in actual possession of the disputed land. On these findings, the Civil and Sessions Judge decreed the suit and directed that the lease deed shall be rectified. 7. The defence of the appellant and respondent No. 3 was that there was no mistake in the lease deed, that the appellant Sardar Chandan Singh was in possession of the land in dispute from the year 1959 and as such the respondent No. 1 was not entitled to get the lease deed rectified. 8. Sri L. Chandra, learned counsel for the appellant has not assailed the findings of fact recorded by the Civil and Sessions Judge. But he has contended that the lower appellate court recorded finding just by tallying the disputed land with the revenue records and that the respondent No. 1 upon whom the burden of proof lay, failed to prove the essentials of Section 26. But he has contended that the lower appellate court recorded finding just by tallying the disputed land with the revenue records and that the respondent No. 1 upon whom the burden of proof lay, failed to prove the essentials of Section 26. He further contended that the appellant was a transferee in good faith for value and as such he was protected under S- 26 (2) of the Specific Relief Act. In this connection he pointed out that the principle underlying Section 53-A Transfer of Property Act was applicable to leases. In support of the last contention, he referred to the cases of Jonnada Sayi v. Jonnada Subhanna, (1946) 1 Mad LJ 92 : ( AIR 1946 Mad 310 ) and C. A. Fernandes v. Dr. A. L. P. Furtado, AIR 1975 Goa 27 . 9. Section 53-A lays down that where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf . and the transferee has, in part performance of the contract, taken possession of the property or any part, thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract. 10. This section is subject to a proviso that it shall not affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. 11. The learned counsel for the plaintiff-respondent No- 1 does not dispute the proposition that the provisions of Section 53-A, Transfer of Property Act are applicable to leases, but he contended that the findings which the lower appellate court had recorded were based on evidence and as such this court could not disturb the same. 11. The learned counsel for the plaintiff-respondent No- 1 does not dispute the proposition that the provisions of Section 53-A, Transfer of Property Act are applicable to leases, but he contended that the findings which the lower appellate court had recorded were based on evidence and as such this court could not disturb the same. In support of his contention he referred to the case of Deity Pattabhiramaswamy v. S. Hanymayya, AIR 1959 SC 57 ; Abdul Waheed Khan v. Bhawani, AIR 1966 SC 1718 and Afsar Shaikh v. Soleman Bibi, AIR 1976 SC 163 . In these cases it was held that the High Court had no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error might be. 12. The learned counsel for the respondents further contended that no plea of good faith was taken by the appellant in the written statement, that he had not led any evidence that he had taken lease in good faith for value and that there was no issue between the parties on this point. 13. There are certain salient facts which are not disputed and which are borne out by the oral evidence of the parties and which are alleged in the plaint. They are; (1) The Waqf is proprietor of Khewat No. 590. There is only one plot No. 2139 measuring 11 bighas in this Khewat (2) The waqf has no concern with plot No. 2138. The area of plot No- 2138 is 8 bighas 16 biswas. One Mohammad Umar is the owner of this plot and it lies in Khewat No. 331. (3) The respondent No. 3 as Mutawalli of the Waqf used to send account to the Waqf Board in respect of plot No. 2139 of Khewat No. 590-(4) Respondent No. 3 did execute the lease deed in question as Mutawalli of the Waqf. Lease deed was correctly written. It was registered. 14. Then there is a positive finding of the lower appellate court that the plaintiff-respondent No. 1 was in possession of the disputed land and that the appellant was not in possession of the land from the year 1959 as contended by the contesting defendants. 15. Lease deed was correctly written. It was registered. 14. Then there is a positive finding of the lower appellate court that the plaintiff-respondent No. 1 was in possession of the disputed land and that the appellant was not in possession of the land from the year 1959 as contended by the contesting defendants. 15. On the salient points indicated above the lower court found that the respondent No. 3 gave lease of plot No. 2139 to the plaintiff-respondent and that plot No. 2138 was mentioned in the lease deed by some mistake or fraud. The judgment of the lower appellate court shows that in arriving at such a conclusion he not only referred to the revenue records but he also referred to the oral evidence led by the parties. Therefore, it is not correct to say that the finding of the lower appellate court is based simply on tallying the disputed land with the revenue records. As the plaintiff-respondent was in possession of the disputed land from before the date of the execution of the lease deed it is but patent that the parties had entered into agreement to lease out 11 Bighas land of Khewat No. 590- The number of this land is 2139. Thus the mention of 2138 in the lease deed is nothing but a mistake. G. C. Venkata Subbarao in his Book "The Law of Specific Relief" (First Edition) 1965 has written as follows at page 338: "Wrong Survey Number - In Santaya v. Savitri ((1902) 4 Bom CR 871) Jenkins C. J. said: "It is clearly settled that where there is sufficient description set forth of the premises by giving the particular name of the field or otherwise, a false description added thereto may be rejected." It was accordingly held that the) addition of a wrong survey number did not invalidate the plaintiffs claim when the land was otherwise sufficiently identified. When the lands are described by extent, assessment and name of the pattadar, the insertion of a wrong survey number can be rectified." 16. Thereafter reference has been made to the case of Rangasami v. Sowri (29 Mad LJ 229) : (AIR 1916 Mad 519). In this P. brought a suit for possession claiming that he had purchased the suit land S. No. 92 B from A in 1911. Thereafter reference has been made to the case of Rangasami v. Sowri (29 Mad LJ 229) : (AIR 1916 Mad 519). In this P. brought a suit for possession claiming that he had purchased the suit land S. No. 92 B from A in 1911. The defendant pleaded that he was in possession of the land having purchased it in 1908 from A though by a mistake the land was referred to in his sale deed as S. No. 90-B instead of S. No. 92-B. It was held: "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 plaintiffs claim disable him from setting up the plea which could have availed him as plaintiff ? We think not." 17. At this stage it may be indicated as to how the mistake in the lease deed in question crept in. Both the courts below have not referred to the evidence on this point. Statements of Atma Ram, respondent No. 1 and Syed Qasim Hussain, defendant-respondent No. 3, clearly show that first of all a draft in Urdu was prepared and from that draft the lease deed was typed out. Neither Atma Ram nor Qasim Hussain cared to read the typed out lease deed. It is for this reason that instead of plot No. 2139, plot No. 2138 came in the lease deed. The intention of the parties from the lease deed is too obvious and it is this that lease of 11 bighas land of Khewat No. 590 of the waqf was to be executed. As stated above there is only one plot No. 2139 in this Khewat. Thus the clear intention of the parties was to lease out plot No. 2139. But unfortunately the deed did not carry out the real intention of the parties and by mistake of typing No. 2138 was mentioned in the lease deed. Thus it is a clear case of mutual mistake of the parties and as such the provisions of Section 26 of the Specific Relief Act are clearly attracted. 18. The learned counsel for the appellant referred to two cases which may be dealt with: Frederick E. Rose (London) Ltd. v. WM H- Pirn Juar. & Co. Thus it is a clear case of mutual mistake of the parties and as such the provisions of Section 26 of the Specific Relief Act are clearly attracted. 18. The learned counsel for the appellant referred to two cases which may be dealt with: Frederick E. Rose (London) Ltd. v. WM H- Pirn Juar. & Co. Ltd., (1953) 2 All ER 739. In this case parties entered into an agreement of purchase and sale of Tunisian Horse beans. The agreement which was in writing clearly mentioned five hundred tons of Tunisian Horse beans. Feveroles is special variety of horse beans. The buyer was not in know of the fact that feveroles were special variety of horse beans. Later on, the buyers brought an action for the rectification of the written contract by the addition of the word 'feveroles after the words 'Tunisian Horse beans'. The action was not' given effect to because the oral agreement was for the sale of horse beans and not for feveroles. The facts of this case are quite different from the facts of the present case Latchayya v. Seemathamma, AIR 1932 Mad 275 . In this case there was a mortgage deed and on the basis of the mortgage deed a suit was filed. A preliminary decree was passed in the case. Then it was discovered that in the mortgage deed Survey No. 166 was entered by mistake instead of Survey No- 168. A suit for rectification of the mortgage deed and the decree was filed. Both the courts below decreed the suit holding that there was a common mistake by the parties to the mortgage deed. In second appeal the decree passed by the Courts below was confirmed. It was urged in second appeal that the mortgage deed could be rectified, but the decree could not be rectified in that suit. This contention was not accepted. Then an appeal was preferred under the Letters Patent. The view taken by the High Court in the Second Appeal was not disturbed. In the course of the judgment it was. however, simply observed: "In my opinion the plaintiffs in this case adopted the wrong course. They sued for rectification of their decree on the ground of mistake, which so far as I can see, was an inadmissible prayer. The view taken by the High Court in the Second Appeal was not disturbed. In the course of the judgment it was. however, simply observed: "In my opinion the plaintiffs in this case adopted the wrong course. They sued for rectification of their decree on the ground of mistake, which so far as I can see, was an inadmissible prayer. But they got the amendment of that decree, which is exactly, what they might have got by first getting their mortgage deed rectified and then amending their plaint and applying for review of the preliminary decree or amendment of that decree under Section 152, Civil P. C. That being so, although in my opinion they have adopted the wrong course, I can see no reason why at this stage we need interfere......" The above observation simply lays down a principle of procedure and they are not at all applicable to the facts of the present case. 19. The position that follows from the above is that in the instant case plot No. 2138 was simply a typing error and it was not in accordance with the agreement of the parties. The agreement between the parties was in respect of the' waqf land No- 2139 measuring 11 Bighas of Khewat No. 590. Therefore, it is a clear case of mutual mistake of the parties and as such the mistake could be rectified under Section 26. The lower appellate court has taken a right view of the matter. 20. With regard to the contention that the appellant was a transferee in good faith for value the lower appellate court observed that such a contention was not taken in the written statement. The lower appellate court is not incorrect in saying so. There is positive finding of the lower appellate court to the effect that the plaintiff-respondent No- 1 was in possession of the disputed land and that the contesting defendants had wrongly asserted that the appellant was in possession of the disputed land from the year 1959. In view of this finding, there is absolutely no question of the appellant being a transferee in good faith. Therefore, this plea is hardly of any avail to the appellant. 21. No other point is involved in the appeal. 22. For what has been found above, the appeal is without merit. It is dismissed with costs.