Allahabad High Court

Suraj Prasad vs Smt. Vandana Pitariya on 29 November, 2021

Bench: J.J. Munir




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 18								A.F.R.
 
Case:- SECOND APPEAL No. - 280 of 2018
 

 
Appellant :- Suraj Prasad
 
Respondent :- Smt. Vandana Pitariya
 
Counsel for Appellant :- Anuj Dayal
 
Counsel for Respondent :- Vipul Gupta,Mohd Aslam Khan
 

 
Hon'ble J.J. Munir,J.

1. "What's in a name", is not always true. In a given situation or transaction, everything could revolve around a name. It is about the name of the Village, where the suit property is situate, but incorrectly mentioned in the registered deed of conveyance as another village, that has led the respondent in this appeal, Smt. Vandana Pitariya, to institute a suit for rectification.

2. The facts giving rise to this appeal lie in a narrow compass. According to Smt. Vandana Pitariya, the sole respondent, and hereinafter referred to as 'the plaintiff', an agreement to sell dated 03.02.2004 was entered into between her and the sole appellant, Suraj Prasad, hereinafter referred to as 'the defendant', with the latter covenanting to transfer in favour of the plaintiff his 1/3rd share in Gata No.39, admeasuring 1.502 hectares, situate in Village Chhauchh, Pargana Kheri, District Kheri, for a total sale consideration of Rs.3,09.000/-. The agreement, that was duly admitted to registration, carries an acknowledgment that the defendant has received from the plaintiff out of the agreed sale consideration, a sum of Rs.2,50,000/-.

3. It was further covenanted that the balance sale consideration would be payable at the time of execution and registration of the sale deed. Nothing else is material about the agreement, for shortly after its execution, on 20th April, 2004, a sale deed was executed by the defendant in the plaintiff's favour, acknowledging receipt of the balance consideration. The sale deed was duly registered.

4. The plaintiff's case is that the suit property lies on the border of an adjoining Village Udaipur Maheva, Pargana and District Kheri, a fact the plaintiff did not know. In the sale deed, that was executed by the defendant, the suit property was correctly described with reference to its plot number, but the village was incorrectly mentioned as Udaipur Maheva instead of Chhauchh. The plaintiff requested the defendant to get the aforesaid mistake rectified by presenting a mutually done deed of rectification to the Sub-Registrar concerned, but the defendant declined. It is on this cause of action that the plaintiff brought the suit seeking a rectification to the registered sale deed dated 20.04.2004 in terms of a decree of Court ordering the defendant to execute a deed of rectification, substituting for Village Udaipur Maheva, Village Chhauchh. It was further prayed that in case the defendant does not execute the requisite deed of rectification, the Court may execute it at the plaintiff's expense.

5. The defendant put in a written statement, where in Paragraph No.5, it was not denied that the suit property was situate in Village Chhauchh, but it was denied that the plaintiff has been delivered possession over the suit property, as claimed. In the additional pleas, the defendant has acknowledged the fact that the terms of the transaction were negotiated by Ratan Lal on the defendant's behalf with the plaintiff's husband and the entire formalities of paper work and conveyancing was got done by the plaintiff's husband and Ratan Lal together.

6. It is also pleaded that at the time of execution of the sale deed, the plaintiff was obliged to pay the defendant a balance of Rs.1,17,000/-. The plaintiff's husband and Ratan Lal had instructed the defendant to the effect that the duly scribed sale deed was ready and the defendant may proceed with its execution and registration while the plaintiff's husband and Ratan Lal would go and fetch the balance sale consideration. The defendant has also pleaded that reposing faith in the words of the plaintiff's husband and Ratan Lal, he executed the sale deed, subject matter of the suit for rectification, but the plaintiff's husband declined to pay the balance. It is also averred by the defendant that about one month after the sale deed was executed, Ratan Lal told the defendant that the name of the Village had been incorrectly mentioned, to which the defendant said that the balance sale consideration may be paid to him, subject to which alone he would join the plaintiff to get the sale deed mutually corrected and deliver possession of the suit property. It is also pleaded in Paragraph No.14 that possession over the suit property, situate in Village Chhauchh is not with the plaintiff. The defendant asserted that the suit deserves to be dismissed with costs.

7. On the pleadings of parties, the Trial Judge framed issues on 06.07.2016, which read to the following effect (translated into English from Hindi):

"(i) Whether the plaintiff, on the basis of pleas set out in the plaint, is entitled to seek rectification of the sale deed dated 20.04.2004?

(ii) Whether the suit is undervalued?

(iii) Whether the court fee paid is insufficient?

(iv) Whether the Court has jurisdiction to try the suit?

(v) To what relief is the plaintiff entitled?"

8. The record of the Trial Court shows that Issues Nos.2 and 3 were decided against the defendant on the day these were framed, to wit, 06.07.2016. Thus, Issue Nos.1, 4 and 5 came up for trial, at the hearing of the suit. The learned Civil Judge (Jr. Div.), Lakhimpur Kheri vide his judgment and decree of April the 25th, 2017 dismissed the suit, leaving parties to bear their own costs.

9. The plaintiff, aggrieved by the Trial Court's decree, carried an appeal to the District Judge, Lakhimpur Kheri, where the appeal was numbered as Civil Appeal No.31 of 2017. The appeal, on assignment, came up for determination before the Additional District Judge, Court No.3, Lakhimpur Kheri on 07.07.2018, who allowed the appeal, reversed the Trial Court and decreed the suit for rectification. The learned Additional District Judge did not say anything about cost.

10. The defendant, aggrieved by the appellate decree, has instituted the present Second Appeal. The Appeal was admitted to hearing on 15.02.2019 and the following substantial questions of law were formulated:

(i) Whether a suit for correction of a sale-deed is maintainable to include a different property which is not the subject matter of sale-deed.

(ii) Whether a property which is not the subject matter of an agreement to sell and the sale deed executed in pursuance thereof could be included in a sale deed on the ground of seeking correction in the sale deed.

(iii) Whether the first appellate Court could reverse the finding without meeting the reason and consideration of the evidence dealt with by the trial court and decree the suit for correction of sale-deed."

11. Heard Mr. Anuj Dayal, learned Counsel for the defendant and Mr. Mohd. Arif Khan, learned Senior Advocate assisted by Mr. Mohd. Aslam Khan, learned Counsel appearing for the plaintiff and perused the records.

12. So far as the first substantial question of law is concerned, it is submitted by the learned Counsel for the defendant that the subject matter of the sale deed is a property located in Village Udaipur Maheva whereas through rectification the plaintiff wants it to be corrected to Village Chhauchh. The submission proceeds that with the difference in the two villages, the identity of the suit property would be entirely changed and that is beyond the scope of rectification, envisaged under Section 26(1) of the Specific Relief Act, 1963. What Mr. Dayal says is that in the garb of rectification, transaction relating to one property cannot be substituted for another. And, this precisely is what Substantial Question of Law No. (i) is about.

13. On the other hand, Mr. Mohd. Arif Khan, learned Senior Advocate submits that the relief of rectification proceeds on the basis that if in any written contract or instrument, a fact, word or recital has been mentioned or made through fraud or a mutual mistake of parties, which does not express their true intention, it may be corrected at the suit of a party to the instrument. Learned Senior Counsel submits that if it is established that in the description of the suit property set out in the conveyance, an incorrect village has been mentioned, it could be as much the result of a fraud or a mutual mistake as anything else. If a deed in writing while describing the property subject matter of conveyance shows it to be located in a different village or place, other than the place where it is actually situate, there is no impediment to rectify the mistake, provided it is established that it is the product of fraud or a mutual mistake of parties that does not express their true intention.

14. A perusal of the record, which includes the pleadings and evidence, makes it clear that execution of the agreement followed by the sale deed subject matter of rectification, is not disputed by the defendant. Rather, the defendant has acknowledged in Paragraph No.5 of the written statement that the suit property is situate in Village Chhauchh though he says that possession thereof has not been delivered to the plaintiff. Thus, the parties are, on their pleadings, ad idem that the subject matter of transaction is property located in Village Chhauchh and not in Village Udaipur Maheva.

15. In his examination-in-chief, that is on affidavit, it is acknowledged by the defendant that on the representation of Ratan Lal and the plaintiff's husband, that they would be back with the balance of the sale consideration, he signed the sale deed. The aforesaid testimony strengthens the position that there is absolutely no quarrel between parties about the factum of the transaction or the execution of the conveyance, wherein rectification is sought. In his cross-examination, the defendant says that the property subject matter of the agreement is situate in Village Chhauchh, Pargana Kheri. It is also said that the land in Village Chhauchh and Village Udaipur Maheva are contiguous. It is also said that an agreement about the land in Village Chhauchh was executed in favour of the plaintiff and registered. The Lower Appellate Court has drawn an inference from these facts, and in our opinion rightly so, that the transaction embodied in the sale deed in question relates to land situate in Village Chhauch. The Lower Appellate Court has also noticed the stand of the defendant in his cross-examination to the effect that Plot No.39, whereof 1/3rd share has been sold, has been acknowledged to be located in Village Chhauchh. The relevant part of the cross-examination of the defendant, who testified as DW-1 on 07.04.2017, reads:

"विवादित भूमि गाटा सं0 39 का 1/3 भाग ग्राम छाउछ का विवाद है। मैंने वन्दना पितारिया के हक में इस भूमि का पंजीकृत इकरार नामा दि0 3-2-2004 को किया था। इस एग्रीमेंट में कोई मेरा विवाद नहीं है। इस इकरार नामा के बाद इसी भूमि का बैनामा मैंने वन्दना पितारिया के हक में दि0 20-4-2004 को किया था। मुझे जानकारी नहीं थी ग्राम छाउछ के स्थान पर ग्राम उदयपुर महोवा लिख गया था।"

16. On the aforesaid stand of the defendant, it is evident that on facts the defendant admits the plaintiff's case that the property, in respect whereof the sale deed subject matter of rectification, was executed, is situate in Village Chhauchh and that the transaction was about the defendant's 1/3rd share in Gata No.39, situate in Village Chhauchh; not in Village Udaipur Maheva. The testimony of the defendant further makes it evident that the incorrect mention of the village as Udaipur Maheva for Chhauchh was not within the knowledge of the defendant. The stand of the defendant in his pleadings, his testimony in the examination-in-chief and his transparently clear stand in the cross-examination, places it beyond doubt that mention of Village Udaipur Maheva for Chhauchh, does not express the real intention of parties about the identity of the property, regarding which they entered into the transaction embodied in the sale deed. It is apparently, by a mutual mistake, that the village came to be incorrectly described as Udaipur Maheva instead of Chhauchh with the other particulars of the property correctly mentioned.

17. Section 26 of the Specific Relief Act, 1963 reads:

"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.

(2) If, any suit in which a contract or other instrument is sought to be rectified under sub-section (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.

(3) A contract in writing may first be rectified, and then if the party claiming rectification has so prayed in his pleading and the court thinks fit, may be specifically enforced.

(4) No relief for the rectification of an instrument shall be granted to any party under this section unless it has been specifically claimed:

Provided 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 pleading on such terms as may be just for including such claim."

18. Section 26(1) makes it clear that if a contract or other instrument in writing does not express the real intention of parties, as a result of fraud or a mutual mistake, the Court is empowered to direct a rectification of the instrument.

19. Learned Counsel for the defendant has placed reliance upon a decision of the Supreme Court in State of Karnataka and another v. K.K. Mohandas and others, (2007) 6 SCC 484. The attention of the Court has been drawn to Paragraph No.17 of the report in State of Karnataka v. K.K. Mohandas, where it has been held:

"17. Under Section 26 of the Specific Relief Act, an instrument or contract may be rectified when through fraud or a mutual mistake of the parties, a contract or other instrument in writing does not express their real intention. According to Dr. Banerjee in his Tagore Law Lectures on the "Law of Specific Relief", "if the parties had deliberately left out something from the written instrument, that cannot be put in" by resort to the remedy of rectification. Here, the parties have entered into written contracts and admittedly no term is incorporated therein regarding enforcement of the ban on trade of toddy to the public in the district of Dakshina Kannada. Nor is there any case pleaded in the plaint of any mutual mistake in the matter of setting down the terms of the contract. There is also no plea of fraud on the part of the State in entering into the contract. On the terms of the contract, the plaintiffs had obtained the right to vend arrack for Excise Year 1990-1991 on their obligation to pay the bid amount in monthly instalments. In the absence of any foundation in the pleadings being laid by the plaintiffs establishing a ground for the grant of the relief of rectification, the mere adding of a prayer by way of an amendment could not be considered sufficient to grant them the relief of rectification."

20. This Court fails to see how the principle laid down in State of Karnataka v. K.K. Mohandas is ever so remotely attracted to the facts here. In the case before their Lordships of the Supreme Court, there was no case pleaded in the plaint about a mutual mistake relating to the terms of the contract, that involved the right to sell arrack for a particular excise year, and obliged the plaintiff to pay the bid amount in monthly installments. The plaintiff wanted relief from payment of installments on the ground that contrary to a representation of the Minister and a Government Order, sale of toddy to the public in District of Dakshin Kannad was permitted. It was, in that connection, held by their Lordships that there was no term incorporated in the contract, that the parties entered into about the right to sell arrack, banning trade or sale of toddy to the public. Apparently, it was not a case where the real intention of parties had not been incorporated in the contract. The right to seek rectification was based on something extraneous to the contract, like the Minister's speech or the Government Order. Thus, the principle in State of Karnataka v. K.K. Mohandas is not attracted to the defendant's case at all. Even otherwise, the question that the defendant has mooted is about the power of the Court to rectify an instrument, where the identity of the property would change in consequence of the rectification and the impermissibility of it. That is a question, that was not in the slightest consideration before their Lordships of the Supreme Court in State of Karnataka v. K.K. Mohandas.

21. The other decision relied upon by the learned Counsel for the defendant is Subhadra and others v. Thankam, (2010) 11 SCC 514. In Subhadra, it was held:

"15. The description of the entire property has been given in Ext. B-1. In other words, 5 cents and complete description of Ext. B-1 was the subject-matter of the sale in terms of Ext. A-1. This aspect of the case stands fully clarified and Ext. A-1 has been completely clarified with certainty by the report of the Commissioner, which was relied upon by the trial court. In face of the matters being beyond ambiguity, there is no occasion for this Court to interfere with this finding of fact.

16. Furthermore, 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. Even then, the party claiming will have to make specific pleadings and claim an issue in that behalf.

18. We have already stated that the provisions of Section 26 of the Act are not attracted in the facts and circumstances of the present case. On the contrary, the respondent had specifically taken up the plea that Exts. A-1 and B-1 relate to sale of specific property and there was no ambiguity or mutual mistake. The courts have returned a concurrent finding in favour of the respondent and we see no reason to disturb the said finding. The High Court has specifically noticed that perusal of Ext. B-1 shows that the eastern boundary is the property owned by one Kuttappan Master and the northern boundary is shown as rest of the property as old one. There is no controversy in the appreciation of evidence and the courts have recorded the concurrent finding on the basis of evidence, documentary and oral, adduced before them and have taken a view which is permissible and in accordance with law. The contention of law raised before us on behalf of the appellant, in any case, has no merit as aforestated."

22. As would be evident, the facts on which the decision in Subhadra turns show that there was no ambiguity at all found by the Courts below about the description and identity of the property, subject matter of sale. It is in the context of the aforesaid facts that their Lordships of the Supreme Court have held that it is not a case where rectification can be granted by the Court in exercise of powers under Section 26 of the Specific Relief Act, 1963. In the opinion of this Court, the said decision also has no bearing on the substantial question of law raised here, given the facts found by the Lower Appellate Court on a very reasonable view of the evidence.

23. Much emphasis has been laid by the learned Counsel for the defendant still on the fact that through rectification, a different property cannot be made the subject matter of the transaction embodied in the sale deed. This Court is afraid that the submission to the above effect on behalf of the defendant is not tenable. The power of rectification under Section 26(1) of the Specific Relief Act bears no reference to the consequences of rectification of the mistake in an instrument or contract. The consequences of rectification are absolutely foreign to the exercise of the power under Section 26(1). All that is to be seen is whether the instrument embodies the true intention of parties; or it does not. It it does not, it has to be examined whether the error is the result of fraud or a mutual mistake. In case, it is caused by either of the two, the instrument has to be rectified, though the result of it may be an alternation in the identity of the property sold.

24. Here, this Court must remark that in fact, there is no change in the identity of the property sold. The change is only in the description of it by virtue of its situation in the village, where it is really located. This Court must also remark that the case of a mutual mistake is virtually admitted to the defendant, and it is disheartening to note that this litigation should have travelled to this Court, engaging some seventeen years of the parties' life in strife.

25. Substantial Question of Law No. (i) is answered in the affirmative in the terms that rectification to a sale deed can be ordered to express the real intention of parties about identity of the property sold, but incorrectly described in the sale deed due to fraud or a mutual mistake.

26. Substantial Question of Law No. (ii) is substantially the same as the first question, and, therefore, need not be answered.

27. So far as Substantial Question No. (iii) is concerned, learned Counsel for the defendant submits that the Trial Court had recorded cogent reasons to dismiss the suit, which have not been dealt with, assigning reasons by the Lower Appellate Court. The submission is that the judgment of the Lower Appellate Court is, therefore, in violation of the mandatory requirement of Order XLI Rule 31 CPC.

28. A perusal of the judgment passed by the Trial Court shows that the relevant findings have been recorded while deciding Issue No. 1. The findings go to the effect that the plaintiff's case has not been admitted by the defendant, and, therefore, burden lies on the plaintiff to prove his case. The Trial Court has said that the plaintiff has relied upon the agreement, which also describes the property as land situate in Village Udaipur Maheva. It has been inferred, therefore, that the antecedent agreement does not lend support to the plaintiff's case that what was intended to be sold was land located in Village Chhauchh. It has then been remarked by the Trial Court that in order to prove his case, the plaintiff has examined PW-1, Ved Prakash Pitariya, who has said in his cross-examination that he does not know the boundaries of the suit property, but could tell about the same on reading the sale deed. The Trial Court has also noted that in his cross-examination PW-1 has said that he had not visited the suit property in the past 2 - 3 years. The Trial Court has drawn an inference from this stand of the plaintiff's witness that he is not familiar with the suit property.

29. It has also been remarked by the Trial Court that the plaintiff, who is the purchaser of the suit property, has not deposed in Court as a witness. By contrast, the defendant, who is the seller, has denied the plaintiff's case. The Trial Court has also said that the plaintiff has not examined the Scribe of the sale deed as a witness or any of the witnesses of the sale deed, to wit, Anil Sengar and Suresh. It has been also said by the Trial Court that evidence of the witnesses of the sale deed is crucial as they could throw light on the true intention of parties while executing the instrument. The Trial Court seems to have been much swayed by the fact that the witnesses or the Scribe of the sale deed or the plaintiff have not been examined.

30. By contrast, the Lower Appellate Court has carefully looked into the pleadings to find that the fact about the subject matter of sale, being the land in Village Chhauchh, has not been denied by the defendant in Paragraph No.5 of the written statement. The Lower Appellate Court has then carefully considered the stand of the defendant in his cross-examination to rightly infer that he admits the plaintiff's case about the transaction being one related to the sale of a 1/3rd share of Gata No.39, situate in Village Chhauchh. The Lower Appellate Court has relied more upon the admission of the defendant, which, without doubt, is the best piece of evidence. The Trial Court's findings have been carefully considered and reversed. In doing so, the Lower Appellate Court has said that it deserves mention that PW-1 has said in his evidence that he does not know about the boundaries of the suit property, and that he has not visited it in the past 2 - 3 years. The Lower Appellate Court has remarked that possibly, the Trial Court has disbelieved this witness going by this part of his evidence.

31. It has then been observed by the Lower Appellate Court that it deserves mention that PW-1 is the plaintiff's husband. If this witness says that he cannot recollect the boundaries of the suit property or has not visited the site in the past 2 - 3 years, the factum of execution of the agreement or the sale deed cannot be doubted on this ground alone. The reason is, according to the Lower Appellate Court, that the fact of execution of the sale deed is admitted to the defendant as well as the agreement. Therefore, it was not necessary to examine the witnesses of the sale deed. The Lower Appellate Court has then noted the admission of the defendant that the plaintiff's husband, PW-1 and Ratan Lal assured him that they would be back with the balance sale consideration, trusting which he signed the sale deed. The said fact has been relied upon by the Lower Appellate Court to infer a clear admission about the execution of the sale deed. The cross-examination of DW-1, who is none other than the defendant, has been carefully looked into to infer that the suit property is situate in Village Chhauchh and that it adjoins Village Udaipur Maheva. He has admitted executing the agreement and the sale deed in respect of land of Village Chhauchh, to the extent of his 1/3rd share in Gata No.39 of Village Chhauchh.

32. With so much of careful analysis of the evidence done and findings recorded, supported by reasons, to reverse the Trial Court, it cannot be said that the Lower Appellate Court has reversed the Trial Court without meeting the reasons or considering the evidence dealt with by the Trial Court. As such, Substantial Question of Law No. (iii) is answered in the affirmative, subject to the conclusions hereinabove.

33. In the result, the appeal fails and is dismissed.

34. The impugned judgment and decree passed by the Lower Appellate Court is affirmed. The plaintiff shall be entitled to his costs in this Court and in both the Courts below.