SHIVCHARAN Vs. CHANDRA KUNWAR

JUDGEMENT

(1.) This second appeal preferred by the plaintiff / appellant herein was admitted for hearing on the following substantial question of law: -

(2.) The suit property was held by one Chote Bagar. He had two daughters - Bal Kunwar and Chandra Kunwar, defendants No.1 & 2 herein. He by Ex.D-1 dated 15-7-1985 executed a sale deed alienating the suit property in their favour. Immediately thereupon vide Ex.D-2, on 8-8- 1985, he executed a rectification deed unilaterally stating that he wanted to alienate the suit property only in favour of Chandra Kunwar, but erroneously, the name of Bal Kunwar has also been entered in the sale deed, therefore, it be read as alienating the sale deed only in favour of Chandra Kunwar. But thereafter, Bal Kunwar - defendant No.1 alienated the suit property to the plaintiff on 6-7-1989 vide Ex.P-8 and when the dispute arose between the parties, purchaser / plaintiff Shivcharan filed suit for declaration of title that he is the joint owner of the suit land with defendants No.1 & 2 and entitled for possession qua the property purchased vide Ex.P-8 which the trial Court decreed holding that the plaintiff is entitled for partition of his share which he has purchased and possession also. But the first appellate Court reversed the judgment & decree of the trial Court against which this second appeal has been preferred by the plaintiff in which substantial question of law has been formulated which has been set-out in the opening paragraph of this judgment.

(3.) Mr. Ashok Kumar Shukla, learned counsel appearing for the appellant herein / plaintiff, would submit that the first appellate Court is absolutely unjustified in holding Ex.D-2 as rectification deed which was done unilaterally by Chote Bagar, as the only remedy available to Chote Bagar was to file suit for rectification of sale deed under Section 26 of the Specific Relief Act, 1963. As such, the first appellate Court is absolutely unjustified in setting aside the judgment & decree of the trial Court.