SATERI SHIDDAPPA GADKARI Vs. RUDRAPPA SHETTEPPA BACHENHATTI

JUDGEMENT

(1.) This second appeal arises from a suit, which had been filed by the appellant plaintiff for recovery of a piece of land, which, it has been found now by both the lower Courts, was intended to be included in a sale deed executed by the plaintiff's predecessors-in-title, Baswant Sattu Gadakari alias Gadadavar, Sattava wife of Rama Gadakari alias Gadadavar and Kareppa Hasapur alias Karodi in favour of the defendant. It was, however, upon the findings of both the trial Court and the appellate Court, not included in the sale deed, because of a mutual mistake. The plaintiff-appellant is a subsequent purchaser of the land from the defendant's vendors. He purchased the land on 23-5-1947, and on 14-8-1947, filed the suit from which the present appeal arises for recovery of possession of the land. The defendant filed his written statement on 10-6-1948, and his principal defence therein was that of a mutual mistake, which prevented the inclusion of the land in the sale deed, when the contract between the parties was that the land was also to be included in the sale deed along with the other properties which find mention therein. It appears that in the written statement the defendant raised a contention with regard to the plaintiff not having mentioned in his plaint from whom he had purchased the land in suit, and what his vendor had got to do with it. When subsequently he had to file documents, he pointed out as to the complaint which he had made in his written statement, and said that he should be allowed time to file further documents, after the plaintiff had filed a counter written statement. The Court, however, did not ask the plaintiff to file any counter written statement, and merely gave time to the defendant to produce his papers. Even so, however, the plaintiff appears to have filed a statement, in which he confined himself to explaining the matter upon which the defendant had said in his written statement what were not sufficient details in the complaint. The issues which were framed subsequently included an issue on the point of mutual mistake; but even in case there was a mutual mistake, inasmuch as the plaintiff is a transferee from the original vendors, and the defendant has founded his defence upon Section 31, Specific Relief Act, the plaintiff would be protected in case he was a transferee in good faith. But there is no issue among the issues framed by the learned trial Judge as to whether the plaintiff was a transferee from the original vendor in good faith and was thus protected under the provisions of Section 31, Specific Relief Act. The plaintiff's sale deed, however, was challenged by the defendant as without consideration and champertous. There were issues upon the point, and the defendant appears to have cross-examined the plaintiff upon his knowledge about what had happened at the time of the defendant's sale deed as well as the plaintiff's sale deed. The plaintiff said that at the time when he took his sale deed, his vendors told him that the defendant was in possession; but he did not make any inquiries from the defendant as to in what right he was in possession of the land in suit. This cross-examination may, however, have been directed, as I have already mentioned, to the issues as to whether the plaintiff's sale deed was without consideration and whether it was champertous, and upon both the points the trial Court held in favour of the plaintiff. But inasmuch as the defendant has made out mutual mistake, and no question of plaintiff's good faith was ever raised, the plaintiff's suit has been dismissed with costs, without consideration of any questions as to whether the subsequent transferee was a transferee in good faith.

(2.) The first point which Mr. Jahagirdar, who appears on behalf of the plaintiff, makes is that in this case there ought to have been an issue on the question of the plaintiff's good faith, and in case there was no such issue, then, the dismissal of the plaintiff's suit cannot possibly be justified. It appears to us, however, that immediately the defendant raised his contention of mutual mistake, the plaintiff should have either filed a counter written statement saying that he was a transferee in good faith, or, in the alternative, at any rate, he should have raised an issue of good faith and led evidence upon it. We find in this case that the plaintiff has done neither. That is why there is no issue framed in the trial Court upon the question of the plaintiff's good faith, and that is why neither the trial Court nor the appellate Court has applied their minds to that question. Now, the question of the plaintiff's good faith is obviously a question of fact, and it was necessary for the plaintiff to raise that question by his pleadings, and, at any rate, by asking the Court to frame an issue upon the point. Subsequently, he should have satisfied the Court upon the point. He failed to do so, and consequently he cannot now be allowed to say that there should have been an issue upon the question of his good faith, and if that question was not decided, the dismissal of the plaintiff's suit cannot be upheld.

(3.) Coming now to the main question, the argument which has been advanced on behalf of the plaintiff can be put in this manner. The plaintiff's suit was based upon his own title. The defendant has got in his favour a sale deed, and even though it has now been found that the contract of sale was with regard to not only the properties actually conveyed by the sale deed in favour of the defendant, but also with 'regard to the property in suit, the latter was omitted from the sale deed. Title to any piece of property can be conveyed in India, where the property is admittedly more than hundred rupees in value, by a registered instrument, and there being no registered instrument executed in regard to the property in dispute in favour of the defendant, the defendant has no title to the property. It is true that whenever the defendant discovered the mistake, it was open to him to go to a Court under Section 31, Specific Relief Act, and ask for a rectification of the sale deed. If he obtained rectification of the sale deed, then he would get-a title; but until the sale deed was rectified, he would have in his favour only the right to file a suit conferred upon him under Section 31, and not the title itself. It may be that once the document was rectified, the title may relate back to the date upon which the sale deed was executed. The suit would be not for a fresh conveyance, but for a rectification of the conveyance, which had already been passed. The order for rectification would necessarily imply that there was a mistake in the document, & what the Court would give, therefore, as a result of the suit for rectification, would be a reformed document, viz. the original sale deed, with an additional item added to it. But even so, to the plaintiff's suit which was based upon title, the defendant had no defence. He could only defend it by showing a better title in him, and upon what he has done, he had got no title.