Avadh Behari Others v. Ram Sajiwan Others — 1988 DIGILAW 1043 (ALL)

JUDGMENT D.S. Bajpai, J. - This is a defendants' second appeal against the judgment and decree dated 29.5.1978 passed by the II Additional District Judge, Sultanpur in Civil Appeal No. 205 of 1977 (Avadh Behari and others Vs Ram Sajiwan and others) dismissing the appeal and confirming the judgment and decree dated 5.4.1977 passed by the I Addl. Munsif, Sultanpur in Regular Suit No. 207 of 1973 (Ram Sajiwan and others Vs. Avadh Behari and others) by which the plaintiffs' suit was decreed with costs. 2. Brief facts giving rise to the case are that by a registered saledeed dated 23.2.1973 in repect of 2/3rd portion of a house as detailed by letters Ga, Gha, Ja, Jha, Ta, The the plaintiffs obtained title over the said house but a clerical mistake was to the effect that the saledeed did not, in fact, indicate the real intention of the parties executing the saledeed since it amounted to not related to transfer of the remaining 1/3rd portion of the said house. The plaintiffs' suit was, therefore, confined to the rectification of the clerical mistake that occurred in the registered saledeed to indicate the whole house described by letters Ga, Gha, Ja, Jha, Ta, as shown in the plaint map. The defendants contested the suit and, inter alia, stated that there was no clerical mistake and the saledeed was not liable to be rectified. On the pleadings of the parties the trial court framed six issues. Issue No. 1 partained to the fact as to whether the saledeed was executed under some misconception resulting in mistake occurring in the saledeed and the succeeding issue pertained to the question as to whether it should be rectified. Issue No. 3 pertained to correctness of the site plan attached with the plaint. Issue No. 4 was to the effect as to whether the suit was within time and issue No. 5, to the effect as to whether the defendants weree ntitled to special costs under Section 35A of the Code of Civil Procedure. Issue No 6, related to reliefs. The trial court by its detailed judgment after appraising evidence, oral and documentary, held as a fact that there was a clerical mistake in the saledeed in question and that it was liable to be rectified. It further held that the site plan shown in the plaint was correct. Issue No 6, related to reliefs. The trial court by its detailed judgment after appraising evidence, oral and documentary, held as a fact that there was a clerical mistake in the saledeed in question and that it was liable to be rectified. It further held that the site plan shown in the plaint was correct. It found that the saledeed having been executed on 18.2.1970 the suit filed on 24.7.1973 was within time since there was no specific provision in the Limitation Act about the limitation in respect of such suits relying on the provisions of residuary Article 113 of the Limitation Act. The trial court based its decision on the law laid down by their Lordships of the Supreme Court in the case of Musammat Rakhmabai Versus Lala Laxmi Narain AIR 1960 SC 335 ) that The time begins to run not from the date on which an adverse entry is made but from the date on which there is a 'fresh denial' of the plaintiff's title, and held that the time of three years under Article 113 of the Limitation Act started running not from the date on which the saledeed was executed, as laid down by their Lordships, but from the date when fresh denial of the plaintiffs' title was made and this denial related back within the time of there years and the suit was as such within time. The lower appellate court confirmed these findings. Aggrieved by the Judgments and decrees of the two courts below the plaintiff has come in second appeal before this Court. 3. I have heard learned counsel for the appellants, Sri Bireshwar Nath, and the learned counsel for the respondents, Sri P.K. Khare. The only submission made by the learned counsel for the appellants has been that the civil court had no jurisdiction to grant a decree directing the SubRegistrar to rectify the mistake even if it be clerical, in the registered saledeed. The learned counsel for the respondents submitted that under the provisions of Section 9 of the Code of Civil Procedure civil courts had jurisdiction to try all civil suits unless barred. The provisions of Section 9 of the Code of Civil Procedure are as under: PART I SUITS IN GENERAL Jurisdiction of the Courts and Res judicata 9. The learned counsel for the respondents submitted that under the provisions of Section 9 of the Code of Civil Procedure civil courts had jurisdiction to try all civil suits unless barred. The provisions of Section 9 of the Code of Civil Procedure are as under: PART I SUITS IN GENERAL Jurisdiction of the Courts and Res judicata 9. Courts to try all civil suits unless barred The Courts shall subject to the provisions herein contained have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation (I) A suit in which the right to property or to an office is contested is a suit of a civil nature, not with standing that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Explanation (II) For the purposes of this section it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place. The scheme of the Code leaves no doubt that the case in hand is not covered by Explanation I and/or Explanation II and as such the suit was cognizable by civil court and the court was competent to pass a decree after recording a finding on the questions raised, since it was a suit of civil nature and its cognizance is neither expressly nor impliedly barred by the civil court. 4. Specific provision pertaining to the registration of documents exists in the Registration Act, 1908 (Act No, 16 of 1908). This Act provides for registration of the documents and a perusal of the Act does not indicate that in the instant case in which the saledeed has been registered and a clerical mistake was only to be rectified there was any remedy provided in the Act. Section 34 of the Registration Act, 1908 pertains to enquiry before registration by the registering officer and Section 72 provides appeal to Registrar from the orders of SubRegistrar refusing registration on a ground other than denial of execution The learned counsel for the appellants could not point out any provision of the Registration Act or of the Code of Civil Procedure by which cognizance of a civil suit is expressly or impliedly barred. I, therefore, hold that there is no substance in the submission of the learned counsel for the appellant. 5. No other point was urged. Being concurrent finding of fact as also the suit being within time this second appeal does not require any interference. 6. The appeal is devoid of force and is dismissed Costs on parties.