ALIYAR Vs. RAJU V. VAYALAT

JUDGEMENT

(1.) This is an appeal by the defeated defendant.

(2.) Apart from the factual issues, the prime legal question arising for determination in this appeal is whether an assignment deed can be rectified under Sec. 26 of the Specific Relief Act, 1963 (for brevity, "the Act") without pleading and proving fraud or mutual mistake of the parties? Ancillary question is whether a decree declaring that the property shown in the plaint schedule is the property assigned to the plaintiff through Ext.A1 (the document sought to be rectified) will salvage the situation in favour of the plaintiff? Of course, other reliefs sought in the plaint are dependent on the findings on these issues.

(3.) Short facts pleaded in the plaint are thus: Respondent is the absolute owner of 22 cents of land in resurvey Nos. 63/2 and 196 of Chelamattom Village and a double storied building bearing No. PMC/XXI/339. He purchased the property from the appellant as per Ext.A1 sale deed. The dispute in this case is centered around this property and the building. Respondent contended that he purchased the property from the appellant for a consideration of Rs. 52 lakhs, by availing a loan from the State Bank of Travancore, Thoppumpady Branch. In connection with the loan transaction, the respondent deposited original sale deed with the bank. Respondent further contended that immediately after the purchase, the appellant sought his permission to continue residence in the house situated in the property for three months in order to enable him to purchase a suitable land and building. Respondent acceded to this request and permitted the appellant to reside in the building. Even after three months, the appellant did not vacate. But he sought further time. That was also allowed by the appellant. In spite of various demands made by the respondent, the appellant refused to vacate the building and therefore, the respondent was compelled to initiate this action against the appellant. The suit, at its inception, was one for mandatory and prohibitory injunction reliefs. Thereafter an Advocate Commissioner was appointed by the court to identify the property. The Commissioner inspected the property with the help of Taluk Surveyor and submitted a report and plan. Subsequent to that the plaint underwent multiple amendments. Finally, the suit became one for rectification of Ext.A1 document, declaration of the respondent's title over the plaint property and building and also for prohibitory and mandatory injunction reliefs.