PERIYAL NARAYANA RAO Vs. PERIYAL RAMA RAO

JUDGEMENT

(1.) THIS appeal by plaintiff arises from a suit for recovery,on the strength of title,of possession of property which is 85 cents of arecanut garden,with mesne profits.In the partition evidenced by Ext.A -1,made in the family of plaintiff and defendants 1 and 2,who are brothers,and some others,on April 24,1961,A schedule -properties including the suit property,were allotted to the share of plaintiff,C schedule -properties to defendants 1 and 2 and some others and B schedule -properties to the heirs of one Anantha Rao.The plaintiff alleged that defendants 1 and 2 trespassed on the suit property on April 5,1967 and claimed mesne profits from that date.Defendants 1 and 2 while admitting their being in possession of the property denied plaintiff's title to it.According to them the suit property was really allotted to them in Ext.A -1 and it happened to be included in A schedule in Ext.A -1 by mutual mistake.During suit they assigned their rights in the property,in favour of the eighth defendant who subse­quently assigned the same to the ninth defendant.The trial court upheld the contention of defendants 1 and 2 and dismissed the suit.In case the plaintiff had to be given a decree for possession with mesne profits the trial court found in its judgment that it had to be from January 5,1967,and that at the rate claimed in the plaint.

(2.) THIS is not a case of there being any ambiguity in the description of any property included in any schedule in Ext.A -1.The suit property,without any ambiguity in its description,is included not in the C schedule but in the A schedule of Ext.A -1.When that is the position the result of acceptance of the contention of the defendants would be to take away the suit property from the A schedule and put it in the C schedule of Ext.A -1 and it is mutual mistake that is pleaded in justification of it.

(3.) EXCEPT the plaintiff and second defendant who were examined as P.W.1 and D.W.1 respectively and whose evidence is interested none of the parties to Ext.A -1 was examined.None of the attesters to it was also examined D.W.3 who is the scribe had nothing,to say about the intention of the parties at the time of the execution of Ext.A -1.D.W.1 unambiguously admitted that he signed in Ext.A -1 only after reading it carefully and knowing its contents and satisfying himself about its correctness.The evidence of D.W.1 and 3 shows that even before that the,draft on the basis of which Ext.A -1 was prepared had also been read and examined by defendants 1 and 2.The parties to Ext.A -1 are the different sharers to whom A,B and C schedule properties in it were allotted.Of them the persons to whom B schedule properties were allotted are not parties to this suit.