K SALAMMA Vs. K JAYARAMA RAJU

JUDGEMENT

(1.) THE second appeal is filed by the defendants and the cross objections herein are filed by the plaintiffs. In the trial Court, the sole plaintiff who died pending the suit, filed the suit for partition by way of dividing the plaint schedule property of Ac.13 -75 cents in S.No.48 of Ponnagallu village, Puttur Taluk, Chittoor District into 2 bits of Ac.12 -24 cents on the Southern side and Ac.1 -51 cents on Northern side and allotting southern Ac.12 -24 cents to the plaintiff and for delivery of the same. It is the plaintiff 's case that the plaint schedule property jointly belongs to the plaintiff Kosuri Subbaraju and his brother -in -law Konduri Venkata Swamy Raju and that the 1st defendant is wife and the defendants 2 to 10 are children of Late Venkata Swamy Raju and that the plaintiff is entitled to southern Ac.12 -24 cents out of the suit land. On the other hand, the defendants contend that the schedule property never jointly belonged to the 1st plaintiff and Venkata Swamy Raju and that the 1st plaintiff sold away the suit land to Venkata Swamy Raju under Ex.B -1 registered sale deed dated 27.06.1919 and that since then Venkata Swamy Raju and after him, his legal representatives have been in possession and enjoyment of the suit property in their own right and that their possession is open and hostile to the plaintiffs and so the defendants rescribed title to the suit property by adverse possession also and that the plaintiff is not entitled for partition of the suit property. After trial, the then trial Court (Subordinate Judge 's Court, Chittoor. dismissed the suit. On appeal by the plaintiffs, the then lower appellate Court (Additional District Judge 's Court, Chittoor. allowed the appeal and remanded the suit to the trial Court giving directions to frame additional issues and giving liberty to adduce additional evidence to both the parties. As against the said remand order, previously second appeal No.506 of 1980 was filed in this Court. The said second appeal was dismissed by this Court directing the trial Court to dispose of the suit on merits. Thereupon, the suit was made over to Subordinate Judge, Tirupathi on the point of territorial jurisdiction. After adducing additional evidence, the trial Court dismissed the suit upholding all the contentions of the defendants. On appeal by the plaintiffs, the lower appellate Court allowed the appeal and passed preliminary decree for partition and the plaint schedule property into two equal shares and for allotment of one such share to the plaintiffs and the other share to the defendants, after working out equities in between the parties. Questioning the same, the defendants filed this second appeal and the plaintiffs filed cross objections herein.

(2.) THE then Learned Judge of this High Court admitted the second appeal on ground No.43 of the Memorandum of grounds Second Appeal naming the same as substantial question of law to be determined herein. It is as follows:

(3.) EX .B -1 reads that the deceased 1st plaintiff Subba Raju sold the said land to Venkata Swamy Raju in No.37 i.e., Pymaish No.37. According to the defendants, there is mistake in giving Pymaish number in Ex.B -1 and that instead of Pymaish No.36 by mistake Pymaish No.37 was given. Placing reliance on Sabhaji V. Nawalsingh (AIR 1928 Nagpur 4. and Rajaram V. Manik (AIR 1952 Nagpur 90.of the Nagpur High Court, it is contended by the appellants ' counsel that Section 92 is no bar for pleading and proving mistake relating to Pymaish number occurred in Ex.B -1. Both the above Nagpur decisions relate to contracts and not to registered instruments of conveyance. Division Bench of the Madras High Court in Rangasami Ayyangar V. Souri Ayyangar (1920. XXXIX Indian Law Reports 792 (Mad.. held that combined effect of Section 97 of the Evidence Act, 1872 and of Section 31 of the Specific Relief Act, 1963 leaves no room for doubt that the defendant can resist the suit on the ground that what was sold to him was different from what the document described. However, in the case on hand, the defendants are not pleading any 'oral agreement or statement ' for the purpose of contradicting, varying adding to or subtracting from its terms, in order to debar the defendants either from pleading or from letting in evidence relating to mistake in Pymaish number mentioned in Ex.B -1. Therefore, it is open for the defendants to let in evidence to the effect that what was sold under Ex.B -1 was land in Pymaish No.36 and not in Pymaish No.37. At this stage, there is no dispute between the parties that old Pymaish No.37 is equivalent to new S.No.47 measuring Ac.16 -30 cents which is Gutta Poramboke; whereas old Pymaish No.36 is corresponding to New S.No.48 measuring Ac.13 -75 cents which is the suit land. In any event, it remains that what was purchased by the defendants ' predecessor Venkata Swamy Raju under Ex.B -1 from the 1st plaintiff was only 50 Guntas equivalent to Ac.3 -33 1/3 cents and nothing more. Having purchased only Ac.3 -33 1/3 cents of land under Ex.B -1 sale deed, the defendants want to resist the plaintiffs ' claim for the entire suit land of Ac.13 -75 cents.