JUDGMENT : S.N. Satyanarayana, J. 1. Defendant Nos. 23 and 26 in O.S. No. 556/1989 on the file of Civil Judge (Jr. Dn.), Mangalore, have come up in this second appeal impugning the concurrent finding rendered by both the courts below in decreeing the suit of plaintiffs 1 to 6, who are respondents 1 to 6 herein. For the sake of brevity, the parties herein are referred to by their rank in the court below. 2. Brief facts leading to this second appeal are that, plaintiffs and defendants 1 to 22 are members of Aliyasanthana joint family. The suit schedule property is one of the items of said Aliyasanthana joint family properties. It is seen that prior to filing of suit in O.S. No. 556/1989, there was one more round of litigation between plaintiffs and defendants 1 to 22 in O.S. No. 94/1968, which was on the file of Civil Judge, Mangalore, for the relief of partition and separate possession. It is not in dispute that said suit came to be decreed on 21.7.1969 by identifying a portion of suit schedule property in O.S. No. 94/1968 as share of plaintiffs 1 to 6 in the present litigation, who were plaintiffs in said suit also. It is seen that in the very same suit i.e., in O.S. No. 94/1968, an application is filed for drawing up of final decree. Pursuant to that final decree is also drawn on 31.10.1980, under which an extent of 2 acres 15 cents is allotted to the share of plaintiffs therein. It is stated that pursuant to said final decree drawn in O.S. No. 94/1968, the share of parities therein is identified by a sketch, which was prepared by Court Commissioner, which is produced and marked as Ex. P1 in the present suit. 3. The case of plaintiffs, in the present suit is that, though they are awarded 2 acres 15 cents of land in Sy. No. 64/6 of Kannur village, Mangalore Taluk, vide judgment and decree passed in O.S. No. 94/1968, in the sketch which was prepared by the Commissioner vide Ex. P1, the extent shown against their share is only to an extent of 1 acre 13 ½ cents, which mistake was tried to be rectified by plaintiffs herein by filing an application in I.A. 17 in O.S. No. 94/1968. What actually happened to said application is not on record in these proceedings. P1, the extent shown against their share is only to an extent of 1 acre 13 ½ cents, which mistake was tried to be rectified by plaintiffs herein by filing an application in I.A. 17 in O.S. No. 94/1968. What actually happened to said application is not on record in these proceedings. The version of counsel for appellants herein is that said application is dismissed and that was taken up in a revision before this court. However, date of dismissal of said application is not forthcoming and the number of revision, which is said to have filed by plaintiffs is also not on record. What happened to said revision is also not forthcoming, as appellants are not in a position to make any submission in that behalf. However, the counsel for respondents 1 to 6 i.e. plaintiffs in the original suit submitted that liberty was given to them while seeking withdrawal of said application to pursue the same in the present suit. Be that as it may. 4. Now coming to the present suit, this suit is filed under Section 26 of the Specific Relief Act for getting correction made to Ex. P1 i.e. sketch prepared pursuant to decree drawn in O.S. No. 94/1968 on an application filed in said proceedings for drawing up of final decree. The fact that the share of plaintiffs 1 to 6 in said suit, who are plaintiffs 1 to 6 in the present suit is to the extent of 2 acres 15 cents and said extent is identified as the land made available to them in the partition in respect of Sy. No. 64/6 of Kannur village, Mangalore Taluk is not in dispute. In the final decree it is stated that plaintiffs are put in possession of the property as stated in the decree i.e., to an extent of 2 acres 15 cents. However, the sketch which is at Ex. P1 in this proceedings shows that the measurement of land in the sketch is to an extent of 1 acre 13½ cents only. 5. It is stated that after noticing the said mistake in the sketch, the plaintiffs got the land surveyed, thereafter, issued notification in 'Udaya Vani' newspaper on 16.10.1982 bringing to the notice of general public, the extent of property that was given to the share of plaintiffs 1 to 6 in Sy. 5. It is stated that after noticing the said mistake in the sketch, the plaintiffs got the land surveyed, thereafter, issued notification in 'Udaya Vani' newspaper on 16.10.1982 bringing to the notice of general public, the extent of property that was given to the share of plaintiffs 1 to 6 in Sy. No. 64/6 pursuant to final decree passed in O.S. No. 94/1968. It is seen that in the meanwhile, defendant Nos. 14 and 15 taking advantage of the mistake in the sketch have sold certain portions i.e., an extent of 7 cents in favour of defendant No. 23 and 10 cents in favour of defendant Nos. 25 and 26 in Sy. No. 64/6. Admittedly, as on that date, said extents were not available for disposal by defendant Nos. 14 and 15 in the present original suit. It is seen that pursuant to sale deed executed by defendants 14 and 15, defendant Nos. 23 and 26 who are appellants herein tried to stake claim in respect of land, which was allotted in favour of plaintiffs and which was put in their possession. Hence plaintiffs, who had earlier filed application in I.A. 17 for correction in O.S. No. 94/1968, have filed the present suit under Section 26 of the Specific Relief Act seeking correction to the instrument, namely sketch which was prepared pursuant to final decree passed in O.S. No. 94/1968. In O.S. No. 556/1989, besides defendants 23 and 26, other two persons, who had acquired other portions of land from other defendants were also made as parties among other defendants. 6. The trial court, after receiving written statement from defendants 23 to 26 and other defendants, framed the following issues: 1. Whether the plaintiffs prove that they are the absolute owner of plaint A schedule property? 2. Whether the plaintiffs prove that defendants had a knowledge of right of plaintiffs over plaint A schedule and the sale transaction entered into with defendants 23 to 26 is not valid and nor binding on the plaintiffs? 3. Whether the plaintiffs prove that there is a mistake in Commissioner's Plan annexed to final decree? 4. Whether the defendant No. 24 proves that he had effected various improvement and he is entitled for the amount spent? 5. Whether the Court fee paid is correct? 6. What relief if any the plaintiffs are entitled? 7. 3. Whether the plaintiffs prove that there is a mistake in Commissioner's Plan annexed to final decree? 4. Whether the defendant No. 24 proves that he had effected various improvement and he is entitled for the amount spent? 5. Whether the Court fee paid is correct? 6. What relief if any the plaintiffs are entitled? 7. In the said proceedings, on behalf of plaintiffs the power of attorney holder, namely K. Vittala Shetty examined himself as P.W. 1. He produced in all 24 documents in support of plaintiffs case, of which the first document, namely Ex. P1-the final decree passed in O.S. No. 94/1968, is the document based on which the rights of parties are decided. Regarding the diligence of contesting respondents 23 to 26, the paper publication is produced at Ex. P7 to demonstrate that earlier to sale deed executed in favour of defendants 23 to 26 plaintiffs had taken precaution to issue notice to general public to state that suit schedule property, namely land bearing Sy. No. 64/6 measuring 2 acres 15 cents, which is wrongfully claimed by the other defendants in the original suit, has fallen to their share pursuant to plan in Ex. P1, which is dated 16.10.1982. In the meanwhile, after taking the paper publication, it is seen that original suit in O.S. No. 556/1989 was filed on 31.10.1983 on the file of Civil Judge, Mangalore, which was subsequently transferred to the Court of II Additional Civil Judge (Jr. Dn.), Mangalore, in view of the change in pecuniary jurisdiction of Courts. In the said proceedings, on behalf of defendants, no evidence was led and no documents were produced. It is seen that the suit of plaintiffs came to be decreed holding that plan, which is prepared by Court Commissioner showing the extent of plaintiffs share as 1 acre 13½ cents as against 2 acres 15 cents awarded to them, is erroneous. It is seen that said judgment was taken up in appeal by defendants 23, 25 and 26 by filing two appeals i.e., R.A. Nos. 129/2002 and 157/2002. In said appeals, the lower appellate court, on re-appreciation of judgment and decree passed in O.S. No. 556/1989 proceeded to dismiss the appeals with costs. 8. It is seen that said judgment was taken up in appeal by defendants 23, 25 and 26 by filing two appeals i.e., R.A. Nos. 129/2002 and 157/2002. In said appeals, the lower appellate court, on re-appreciation of judgment and decree passed in O.S. No. 556/1989 proceeded to dismiss the appeals with costs. 8. As against the concurrent finding of both the courts below, the present appeal is filed by defendants 23 and 26, on the ground that suit filed under Section 26 of the Specific Relief Act is not maintainable. That in the absence of prayer for declaration of sale deed executed in favour of defendants 23 to 26, suit for correction of document is not maintainable. That after filing of application under Section 152 of CPC, the present suit should not have been filed. According to counsel for appellants, though Section 26 of Specific Relief Act ('Act' for short) provides for seeking rectification of instrument, the right to sue survives only when plaintiffs allege fraud or mutual mistake of the parties with reference to instrument in respect of which they are seeking declaration. However, in the present suit, though there is allegation of fraud against Commissioner, the same is not properly established by leading evidence and subjecting the Commissioner to cross-examination in the original suit which is filed by respondents 1 to 6 herein. Section 26(1) of the Specific Relief Act reads as under: 26. When instrument may be rectified.- (1) When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing (not being the articles of association of a company to which the Companies Act, 1956 (1 of 1956), applies) does not express their real intention, then- (a) either party or his representative in interest may institute a suit to have the instrument rectified; or (b) the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified; or (c) a defendant in any such suit as is referred to in clause (b), may, in addition to any other defence open to him, ask for rectification of the instrument. The another contention of appellants herein is that, appellants herein being bona fide purchasers for value, their right to hold property is protected under clause (2) of Section 26 of the Act. The another contention of appellants herein is that, appellants herein being bona fide purchasers for value, their right to hold property is protected under clause (2) of Section 26 of the Act. 26(2) If, in any suit in which a contract or other instrument is sought to be rectified under subsection (1), the court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the court may, in its discretion, direct rectification of 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. 9. It is also contended that appellants herein being bona fide purchasers for value, in terms of clause (2) to Section 26, the right which is acquired by them would not get prejudiced. In support of this contention learned counsel for appellants would rely on the decision of supreme Court in the matter of Joseph Johan Peter Sandy vs. Veronica Thomas Rajkumar & Anr. reported in 2013 SAR (Civil) 657, wherein their lordships while referring to a judgment rendered by the Apex Court in the matter of Subhadra & Ors., vs. Thankam, reported in AIR 2010 SC 3031 , which is considered at paragraph 6 of the judgment observed as under:- 6. In Subhadra & Ors., vs. Thankam, in AIR 2010 SC 3031 , this court while deciding upon whether the agreement suffers from any ambiguity and whether rectification is needed, held that when the description of the entire property has been given and in the face of the matters being beyond ambiguity, the question of rectification in terms of Section 26 of the Act would, thus, not arise. The provisions of Section 26 of the Act would be attracted in limited cases. The provisions of this Section do not have a general application. These provisions can be attracted in the cases only where the ingredients stated in the Section are satisfied. The relief of rectification can be claimed where it is through fraud or a mutual mistake of the parties that real intention of the parties is not expressed in relation to an instrument. Learned Counsel for the appellants tried to emphasise on the portion of judgment, which is highlighted. The relief of rectification can be claimed where it is through fraud or a mutual mistake of the parties that real intention of the parties is not expressed in relation to an instrument. Learned Counsel for the appellants tried to emphasise on the portion of judgment, which is highlighted. By drawing parallel to said judgment, he tried to submit that, in the instant case, there is no mutual mistake between the parties in preparation of plain, which is prepared by the Court Commissioner pursuant to decree passed in O.S. No. 94/1968. That fraud having been alleged against Court Commissioner and same not being properly explained, the suit filed by plaintiffs is not maintainable. 10. On going through the facts of the case with reference to aforesaid judgment, it is clearly seen that the instrument in question in the present litigation is a plan, which is prepared by Court Commissioner. This plan is prepared pursuant to final decree passed in O.S. No. 94/1968, which is a suit for partition and separate possession. Admittedly, the share of plaintiffs is clearly identified as 2 acres 15 cents in Sy. No. 64/6 of Kannur Village, Mangalore Taluk, in the final decree drawn in O.S. No. 94/1968. However, while preparing the sketch/plan, there is typographical mistake, which is filed in to the Court. It is clearly seen that none of the plaintiffs or defendants have raised any objection when said sketch was filed in to the court. In the normal course, a decree would be passed and the same would be published and any mistake that has occurred therein would be subject to the correction to be shown by the parties. Admittedly, in the instant case, there is nothing on record to show that the parties to suit in O.S. No. 94/1968 have raised any objection regarding the mistake in plan with reference to final decree drawn in O.S. No. 94/1968, which obviously mean that they have accepted plan, which was submitted by Court Commissioner pursuant to final decree. It is seen that, only thereafter mistake in the extent shown in the plan with reference to decree, is seen by plaintiffs 1 to 6. It is seen that, only thereafter mistake in the extent shown in the plan with reference to decree, is seen by plaintiffs 1 to 6. The very fact that it was not objected to by any of the parties would clearly indicate that there was a mutual mistake on the part of parties in accepting the final decree and the plan, which was prepared pursuant to the final decree drawn in O.S. No. 94/1968, which obviously has come to the knowledge of plaintiffs at a later stage. Hence, they subjected said plan for verification through survey, which was conducted by the competent authority in the year 1982. Pursuant to which, they also issued paper publication on 16.10.1982 in Udaya Vani newspaper, which is having largest circulation in the place, where suit schedule property is situated. It is seen that, only thereafter defendants 23 to 26 in the present suit have purchased suit schedule property from defendants 14 and 15. Therefore, to say that there was no mutual mistake, is erroneous. In fact, though there is reference to fraud by plaintiffs, since they were able to substantiate mutual mistake that has occurred in preparation of plan pursuant to the final decree drawn, there is no need for them to prove fraud. 11. In the instant case, what is required to be seen is that, plaintiffs who have fought a long drawn battle of 12 years from 1968 to 1980, succeeded in getting their share in the 12th year of their litigation. Therefore, it would be suffice to say that plaintiffs confined their prayer for correction only, on the ground of mutual mistake, appears to be just and proper in the facts and circumstances of the case, which they have rightly exercised, which is seen in the reasoning given by court below in answering issues, which were framed in favour of plaintiffs with regard to said mistake. Therefore, in the present set of facts and circumstances, the aforesaid judgment of Apex Court has no bearing to the present set of facts and circumstances. Therefore, in the present set of facts and circumstances, the aforesaid judgment of Apex Court has no bearing to the present set of facts and circumstances. It is also seen that the ratio laid down by the Apex Court in the aforesaid judgment, in fact, would strengthen the hands of plaintiffs in the present suit to demonstrate that they have complied with one portion of Section 26 of Specific Relief Act in demonstrating that there is mutual mistake between the parties, which is accepted by not only the trial court, but also by the lower appellate court. Indeed, this Court has no hesitation to accept the finding of both the courts below on that aspect. 12. Now coming to the next point, which is urged regarding clause (2) of Section 26 of the Act, which saves the right of all the parties, who have acquired any portion of the property, which is subject matter of an instrument under rectification, in the instant case, defendants 23 to 26, who have purchased portion of Sy. No. 64/6 of Kannur village, Mangalore Taluk, which had fallen to the share of plaintiffs 1 to 6 in this proceedings, should have taken all precaution to see that, what is conveyed to them by defendants 14 and 15 is the property which has fallen to the share of their vendors and not that of third parties. However, it is seen that they have not taken any precaution or exercised due diligence before purchase of the property, in so much so there is negligence on their part in not even taking in to consideration the paper publication, which is issued on 16.10.1982 in Udaya Vani newspaper, which is at Ex. P7 in the present suit. In fact, it also gives an indication that possibility of defendants 23 to 26 purchasing suit property despite the fact that there is wide publicity of the mistake being there in the plan, which is prepared pursuant to the final decree drawn in O.S. No. 94/1968 showing a portion of Sy. No. 64/6 as if being allotted in favour of defendant Nos. 14 and 15 in the present suit. No. 64/6 as if being allotted in favour of defendant Nos. 14 and 15 in the present suit. Therefore, to say that defendants 23 to 26 exercised due diligence and they were bona fide purchasers for value of suit schedule property, is disbelieved by both the courts below and this Court has no reason to assail the finding of the courts below on that aspect. 13. Now coming to the next ground that the suit not being maintainable in the absence of the relief for declaration to declare that sale deed dated 8.11.1982 and 12.11.1982 executed by defendants 14 and 15 in favour of defendants 23 to 26, the same is incorrect. When admittedly, defendants 14 and 15 have no title to suit schedule property, any sale deed which is executed by them in favour of third parties would not convey title to them. Therefore, the plaintiffs, who are seeking correction in respect of plan, which is prepared pursuant to final decree drawn in O.S. No. 94/1968, are not obliged to seek any declaration as against defendant Nos. 23 to 26 in respect of sale deed, which is executed by third parties, who have no title to said property. In that behalf, the judgment relied on by the counsel for appellants in the matter of Suhrid Singh @ Sardool Singh vs. Randhir Singh & Ors., reported in AIR 2010 SC 2807 . 14. With reference to the ratio laid down by the Apex Court in the aforesaid matter, if a non executant seeks annulment of sale deed, he has to seek declaration that it is invalid or non est, or illegal or that it is not binding on him. In the instant case, admittedly defendants 14 & 15 and others had no manner of right, title and interest in the suit schedule property except relying upon the sketch/plan, which was erroneously prepared by the Commissioner in O.S. No. 94/1968. But for the said erroneous document, there is no right, title and interest subsisted in favour of defendants 14 & 15. Therefore, the sale deed, which is executed by a person having no title to property in question, would not convey any title to the purchaser, even though he is bona fide purchaser for value. Therefore, said document would be non est in the eye of law. Therefore, the sale deed, which is executed by a person having no title to property in question, would not convey any title to the purchaser, even though he is bona fide purchaser for value. Therefore, said document would be non est in the eye of law. Hence, seeking declaration that the sale deed is not binding on the original owner, does not arise. The ratio laid down by the Apex Court in the aforesaid judgment would not apply to the present set of facts and circumstances. Therefore, this Court find that this ground which is urged by the appellant also does not merit consideration. 15. The last and the weakest ground which is urged by the learned Counsel for appellants is that, in view of the earlier application filed by respondents 1 to 6 herein in I.A. 17 in O.S. No. 94/1968, they are not entitled to file the present suit. As stated supra, appellants herein are not clear about the fate of application in I.A. 17, which was filed by plaintiffs though it is stated that said application was dismissed and subsequently, a revision is filed by plaintiffs-applicants in the said application and the said revision is also dismissed. Per contra counsel for respondents 1 to 6, plaintiffs in present suit would submit that said application, which was filed by them was withdrawn with liberty to file the present suit. Since there is no material available on record either to accept the submission of appellants herein or of the respondents 1 to 6 herein with reference to said application in I.A. 17, this Court is not in a position to decide whether said application was decided on merits or was withdrawn by respondents 1 to 6 after filing of the present suit. In that view of matter, in the absence of any material being placed by appellants to substantiate that ground, even that ground also cannot be considered. 16. It is seen that as against the concurrent finding of both the courts below, on the material available on record, the grounds urged by the appellants are found to be insufficient to admit this appeal, inasmuch as, no substantial question of law arising for consideration, this second appeal filed by defendants 23 and 26 in O.S. No. 556/1989 on the file of II Additional Civil Judge (Jr. Dn.), Mangalore, is required to be dismissed. 17. Dn.), Mangalore, is required to be dismissed. 17. However, while dismissing this appeal, this Court observes that a serious injustice is caused to appellants herein, who are defendants 23 and 26 in the court below, inasmuch as, they being made to believe that suit schedule property is the property which has fallen to the share of defendants 14 & 15. Therefore, liberty is reserved to appellants herein to initiate appropriate proceedings against defendants 14 and 15 to seek damages or in the alternative to seek equivalent extent of land from out of the share that is allotted in their favour in suit schedule properties in O.S. No. 94/1968, in which a final decree is drawn vide Ex. P1, since they tried to pass-off suit schedule property as the land which is allotted to their share and made the present appellants to believe that they are purchasing the shares that is allotted to defendants 14 & 15 in the aforesaid final decree proceedings, which is at Ex. P1.