Judgment Sanjay K. Agrawal, J. 1. The substantial question of law formulated and to be answered in this second appeal is as under:- "Whether both the courts below were justified in decreeing the suit of plaintiffs filed for declaration of title and permanent injunction ignoring the fact that the plaintiffs did not file the suit for rectification of the sale deed dated 06.08.1963 (Ex. P/8) under Section 26(1)(a) of the Specific Relief Act ignoring the fact that the original seller Ganesh, husband of plaintiff No. 1 had given consent for mutation in the name of defendant No. 1 in the mutation proceeding duly recorded in Ex. P/10 dated 05.09.1975 and pursuant to which the name of defendant No. 1 was recorded in the revenue record thereby recording a perverse finding?" [The parties will hereinafter be referred as per their status shown in the suit before the trial court] The imperative facts necessary for answering the substantial question of law formulated, are as under:-- "(2.1) The original plaintiff-Rawati Bai, Nagendra and Keshav instituted a suit for declaration and permanent injunction against the defendant No. 1 to 5 stating inter alia that Husband of plaintiff No. 1 and father of plaintiff No. 3 i.e. Ganesh has not sold the suit land Sheet No. 90 Khasra No. 45/1 area 2000 sq.ft. to the defendant No. 1/Kesharmani by registered sale deed dated 06.08.1963 and after death of Ganesh they are in possession of the suit land through the tenant Harihar Das and the defendants are trying to interfere with their possession, forced them to institute suit for declaration of title and permanent injunction." 2. Defendant No. 1 to 5/appellants herein filed their joint written statement stating inter alia that defendant No. 1 purchased the suit land by registered sale deed dated 06.08.1963, thereafter, defendant No. 1/Kesharmani sold the suit land to the defendant No. 2 to 5 on 05.09.1975 (Ex. P/10) and the name of defendant No. 1/Kesarmani stood recorded in the revenue records in presence of Husband of plaintiff No. 1 i.e. Ganesh and as such the plaintiffs suit is liable to be dismissed. P/10) and the name of defendant No. 1/Kesarmani stood recorded in the revenue records in presence of Husband of plaintiff No. 1 i.e. Ganesh and as such the plaintiffs suit is liable to be dismissed. In addition to filing of written statement, the defendants also raised counter claim, by seeking relief that they are entitled for possession of suit land bearing Khasra No. 45/1 sheet No. 90 alongwith house constructed therein and plaintiffs be restrained by decree of permanent injunction from interfering with their peaceful possession. 3. The Trial Court by its judgment dated 19.09.1996 decreed the suit holding that plaintiffs are owner and title holder of suit land bearing Khasra No. 45/1 area 2000 sq.ft. and plaintiffs are also in possession of the suit land. 4. Questioning the said judgment of trial court, the defendants/appellants herein preferred first appeal. The first appellate court by impugned judgment affirmed the finding of trial court dismissing the first appeal. Against the said judgment and decree of first appellate court, this second appeal has been preferred, in which, the substantial question of law has been formulated and which has been mentioned in the opening paragraph' of this judgment. 5. Shri R.N. Jha, learned counsel appearing for the appellants/defendants 1 to 5 would submit that both the courts below have committed grave error in holding that plaintiffs are entitled for decree of declaration and permanent injunction ignoring the jurisdictional fact that plaintiffs did not file any suit for rectification of sale deed dated 06.08.1963 (Annexure P/8) under Section 26(1)(a) of the Specific Relief Act, 1963 (for short, the Act, 1963). Arguing further, he would submit that both the courts below have completely ignored the fact that the Husband of plaintiff No. 1 and father of plaintiff No. 1 Ganesh had given consent for mutation of suit land in the name of defendant No. 1 in a duly constituted mutation proceeding which is apparent from order dated 05.09.1975 (Ex. P/10) and as such the findings recorded by both the courts below holding that plaintiffs are owner and title holder of subject suit land is contrary to record being perverse, and as such liable to be set aside. 6. P/10) and as such the findings recorded by both the courts below holding that plaintiffs are owner and title holder of subject suit land is contrary to record being perverse, and as such liable to be set aside. 6. On the other hand, Shri Ratnesh Agrawal, learned counsel appearing for the respondents/plaintiffs would submit that findings recorded by both the courts below concurrently holding that husband of plaintiff No. 1 and father of plaintiff No. 3 i.e. Ganesh had not sold the suit land khasra No. 45/1 area 2000 sq.ft. is a concurrent finding of fact based on material available on record. He would further submit that mutation proceeding Ex. P/10 only indicates that late Shri Ganesh, their predecessor in title only conceded to the mutation of land, which was sold to defendant No. 1-Kesarmani and since the land bearing Khasra No. 45/1 was never sold to the defendant No. 1, therefore, question of conceding and giving consent for mutation of subject suit land in favour of defendant No. 1 does not arise, and as such, both the courts below have rightly held that plaintiffs are entitled for decree for declaration of title and permanent injunction. 7. I have heard the counsel appearing for the parties, given thoughtful consideration to submissions made therein and also gone through the records of both the courts below with utmost circumspection. 8. In order to answer the substantial question of law so framed by this court, it would be appropriate to refer Ex. P/8 i.e. sale deed executed by late Shri Ganesh i.e. Husband of plaintiff No. 1 and father of plaintiff No. 3 in favour of Kesarmani/defendant No. 1. A bare perusal of sale deed (Ex. P/8) would show that late Shri Ganesh sold Khasra Nos. 40/2, 44/3 and 45/3 to defendant No. 1. In the said sale deed map is also annexed. Land sold to defendant No. 1 is marked with red ink in which the land bearing Khasra No. 45/1 is not marked with red ink, which clearly demonstrates that khasra No. 45/1 was not sold to the defendant No. 1 and it is only other lands i.e. Khasra Nos. In the said sale deed map is also annexed. Land sold to defendant No. 1 is marked with red ink in which the land bearing Khasra No. 45/1 is not marked with red ink, which clearly demonstrates that khasra No. 45/1 was not sold to the defendant No. 1 and it is only other lands i.e. Khasra Nos. 40/2, 44/3 and 45/3 which were expressly mentioned in sale deed and sold to defendant No. 1, though the defendant No. 1, sold the land Khasra No. 45/1 to the father of defendant No. 2 to 5 i.e. Harihar Das, but the fact remains that since defendant No. 1/Kesarmani did not acquire any title from late Shri Ganesh so far as Khasra No. 45/1 is concerned, therefore the sale of subject suit land i.e. Khasra No. 45/1 to Harihar Das by defendant No. 1, the defendant No. 2 to 5 have not acquired any valid title, right, interest in the subject suit land. 9. Apart from this the trial court has clearly recorded a finding that the plaintiffs are in possession of suit land through tenant Harihar Das for last 20 years which also stands corroborated from the fact that defendants while filing the counter claim has claimed possession of the suit land from the plaintiffs as they are not in possession of suit land. Apart from this, the trial court has rightly held that Kesarmani/defendant No. 1 who is the first purchaser from Ganesh i.e. predecessor in title, could be. the best witness to highlight the nature of transaction and the land purchased, ought to have been examined as witness in the suit, but he has not been examined, though Kesarmani/defendant No. 1 along with defendants preferred joint appeal before the first appellate court and before this court preferred joint second appeal. Examination of defendant No. 1/Kesarmani was necessary as she could have explained and thrown light with regard to purchase of Khasra No. 45/1 without incorporating the subject land in the sale deed, which has not been done by the defendants for the reasons best known to them. Examination of defendant No. 1/Kesarmani was necessary as she could have explained and thrown light with regard to purchase of Khasra No. 45/1 without incorporating the subject land in the sale deed, which has not been done by the defendants for the reasons best known to them. In the matter of Ishwar Bhai C. Patel v. Harihar Behera and another, (1999) 3 SCC 457 the Supreme Court has held that adverse inference must be drawn against the defendant who doesn't present himself to the witness-box and refuses to enter the witness-box in order to refute allegations made against him are to support his pleading in is written statement, by observing as under in paragraphs 17 and 29:-- "17. ........ Having not entered into the witness-box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of the principles contained in Illustration (g) of Section 114 of the Evidence Act, 1872. 29. Applying the principles stated above to the instant case, it would be found that in the instant case also the appellant had abstained from the witness-box and had not made any statement on oath in support of his pleading set out in the written statement. An adverse inference has, therefore, to be drawn against him.........." 10. To the same effect is the decision of the Supreme Court in the matter of Vidyadhar v. Manikrao and another, (1999) 3 SCC 573 where is has been held that if a party abstains from entering the witness-box and adverse inference has to withdrawn against him under Section 114 Illustration (g) of the Evidence Act, 1872 as under:-- "17. Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurubakhsh Singh v. Gurdial Singh, AIR 1927 PC 230 ......................" 11. The trial court as well as the first appellate court on appeal being preferred by the present appellants, has dealt with the counter claim with regard to entitlement of possession of suit land bearing Khasra No. 45/1, and has concurred with the finding of trial court holding that defendants are not entitled for the possession of suit land, and said finding has attained finality in absence of challenge by the defendants. 12. This brings me to the next submission urged by learned counsel for the appellants that plaintiffs ought to have instituted suit for rectification of sale deed dated 06.08.1963 under section 26(1)(a) of the Act, 1963, it would be appropriate to notice section 26(1)(a) of the Act, 1963, which states 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 xxx xxx xxx" 13. A meaningful reading of section 26(1)(a) of the Act, 1963 would show that section26(1) of the Act would be applicable when through fraud or a mutual mistake of the parties, a contract or other instrument in writing does not express their real intention. It is not a case of the plaintiffs that there is mutual mistake either on their part but the plaintiff's case was that their predecessor in title i.e. Ganesh had not sold the suit land bearing khasra No. 45/1 area 2000 sq.ft. to defendant No. 1, and as such the provisions of Section 26(1)(a) of the Act, 1963 is not at all attracted. 14. In the matter of M/s. Siddique and Co. to defendant No. 1, and as such the provisions of Section 26(1)(a) of the Act, 1963 is not at all attracted. 14. In the matter of M/s. Siddique and Co. v. M/s. Utoomal and Assudamal Co., AIR 1946 PC 42 , the privy council while considering Section 31of Specific Relief Act, 1877 has held that in order to obtain rectification of an instrument under Section 31, it must be proved that it was through a mutual mistake of the parties, that instrument in question didn't truly express the intention of parties; and the duty of the Court, before it can rectify, is to find it clearly proved that there has been mistake in framing the instrument, and it must ascertain the real intention of the parties in executing the instrument. On being satisfied of those two elements, it is in the discretion of the Court to grant rectification. 15. In this context, the ratio of law laid down by the Supreme Court in case of Joseph John Peter Sandy v. Veronica Thomas Rajkumar and Another, AIR 2013 SC 2028 be noticed profitably. In paragraph 7 of said judgment, the Supreme Court has held as under: "7. Thus, in view of the above, it can be held that Section 26 of the Act has a limited application, and is applicable only where it is pleaded and proved that through fraud or mutual mistake of the parties, the real intention of the parties is not expressed in relation to an instrument. Such rectification is permissible only by the parties to the instrument and by none else." 16. Therefore, in the facts and circumstances of present case, it is held that the defendants have failed to prove that Ex. D/1 sale deed dated 06.08.1963 (Ex. P/8) did not express the true intention of parties and it is a case of mutual mistake. Thus, the provisions of Section 26(1)(a) of the Act, 1963, is not at all attracted in the case on hand. 17. Determination of aforesaid submission takes me to the next question with regard i.e. order mutation dated 20.06.1975 whereby the revenue authority has recorded consent of Ganesh i.e. father of plaintiff No. 3 and husband of plaintiff No. 1 for mutation of suit land in favour of defendant No. 1/Kesarmani. 17. Determination of aforesaid submission takes me to the next question with regard i.e. order mutation dated 20.06.1975 whereby the revenue authority has recorded consent of Ganesh i.e. father of plaintiff No. 3 and husband of plaintiff No. 1 for mutation of suit land in favour of defendant No. 1/Kesarmani. The fact remains that mutation has to be done on the basis of sale which has been transferred in favour of defendant No. 1. It has also been held by both the courts below and-this court also that late Shri Ganesh did not sale Khasra No. 45/1 in favour of defendant No. 1, and therefore, the question of consent of Shri Ganesh to the mutation of said land in favour of defendant No. 1 does not arise. It has to be read as consent for mutation of other parts of land i.e. Khasra Nos. 40/2, 44/3 and 45/3 which has been transferred by said Ganesh in favour of defendant No. 1. Even otherwise, it is well settled law that mutation is only for the purpose of making revenue records upto date for collection of land revenue and mutation of property does not confer any right, title or interest over the said property. Therefore, the order of mutation in presence of Shri Ganesh and his consent, if any, would not confer any title to defendant No. 1/Kesarmani over the suit land. "(i) In the matter of Sawarni v. Inder Kaur, (1996) 6 SCC 223 their Lordships of the Supreme Court highlighting the importance of mutation clearly held in paragraph 7 as under:-- "7.... Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The- learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment." (ii) The principle of law laid down, in the aforesaid judgment, has been followed and reiterated by Supreme Court in Balwant Singh v. Daulat Singh, (1997) 7 SCC 137 . 18. This erroneous conclusion has vitiated the entire judgment." (ii) The principle of law laid down, in the aforesaid judgment, has been followed and reiterated by Supreme Court in Balwant Singh v. Daulat Singh, (1997) 7 SCC 137 . 18. Accordingly, it is held that concurrent findings recorded by both the courts below holding that plaintiffs are entitled for decree for title and permanent injunction over the subject suit land being Khasra No. 45/1 area 2000 sq.ft. is a concurrent-findings of fact based on record, in which, I do not find any illegality or perversity. Consequently, the substantial question of law formulated is answered. 19. As a fallout and consequence of aforesaid discussion, the appeal stands dismissed and plaintiffs suit as decreed by both the courts below would stand decreed. No order as to costs. A decree be drawn up accordingly.