SARTAJ Vs. AYUB KHAN

JUDGEMENT

(1.) The present second appeal has been filed against impugned judgment and decree dated 30.9.1991 passed by Additional Civil Judge, Etah in Civil Appeal No.92 of 1989 (Ayub Khan Vs. Sartaj and others), by which the lower appellate court by allowing appeal and setting aside judgment and decree dated 17.7.1989 passed by 4th Additional Munsif, Etah in Civil Suit No.467 of 1986 (Sartaj Vs. Ayub Khan), dismissed plaintiffs' suit. Feeling aggrieved plaintiffs have preferred this appeal which was admitted vide order dated 4.2.1992 on following two substantial questions of law framed by this Court:-

(2.) At the time of hearing parties' counsel in appeal one more substantial question of law found to arise in the second appeal and was framed as under:-

(3.) The brief facts relating to the case are that appellants filed Civil Suit No.467 of 1986 with the allegations that plaintiffs purchased property land Khasra No.843-A and 843-B area 0.20 acre from defendant-respondent nos.2 & 3 Sri Jodha son of Sri Govind and Smt. Jal Devi daughter of Smt. Ram Devi on 19.12.1985 by registered sale deed for valuable consideration of Rs.2,000/- but due to inadvertent clerical mistake and misunderstanding of scribe, in the sale deed in question, executed by Jodha and Jal Devi, defendant nos.2 & 3 by putting their thumb impressions, names of their father and mother, Sri Govind father of Sri Jodha and Smt. Ram Devi mother of Smt. Jal Devi were wrongly mentioned as vendors in place of Sri Jodha and Smt. Jal Devi and taking undue advantage of above mutual/clerical mistake defendant no.1 Ayub Khan obtained a sale deed from Sri Jodha and Smt. Jal Devi in his favour on 6.3.1986. The following reliefs sought in the plaint are for issuing of (a) a decree for rectification of sale deed dated 19.12.1985 for writing names Sri Jodha and Smt. Jal Devi as vendors in place of names of Sri Govind and Smt. Ram Devi, (b) a decree for cancellation of sale deed dated 6.3.1986 allegedly obtained by defendant no.1 from defendant nos.2 & 3 in respect of property in suit and (c) a decree for permanent injunction restraining defendants from interfering in the peaceful possession of plaintiffs over the property in suit. In written statement filed by contesting defendant no.1 Ayub Khan in paras 1, 2 & 3 of written statement it was admitted that Sri Govind father of Sri Jodha and Smt. Ganga Devi @ Ram Devi mother of Smt. Jal Devi, were previous owners of land in suit and Sri Govind died about 10 years back while Smt. Ganga Devi @ Ram Devi died about 12 years back, leaving behind them Sri Jodha son of Govind and Smt. Jal Devi daughter of Smt. Ganga Devi @ Ram Devi as their only legal heirs.