DASHRATH Vs. SHATRUGHAN SINGH

JUDGEMENT

(1.) THE suit, out of which this appeal arose, was brought by the appellant, as plaintiff, for declaration of title and for rectification of a sale deed against the respondent. The dispute related to Khasra No. 366/1, area 1.42 acres, known as "Kanhardhana", which the plaintiff alleges to have been purchased by a registered sale deed (Ex. P -1), dated 9 -6 -1956, through the sale deed describes the property sold as Khasra No. 932/1, area 1.25 acres, known as "Tiliyabhata". 'The suit was decreed by the Court of first instance, but the decree has been reversed in appeal by the District Judge.

(2.) THE point at issue between the parties is one of limitation. The question arose in this way. The Court of first instance held that the property sold was the land, bearing Khasra No. 366/1, i.e. the field known at "Kanhardhana", but, due to a mutual mistake, the land, bearing Khasra No. 932/1, i.e. the field known as "Tiliyabhata", was mentioned in the sale deed. Following the observations of J. Sen, J. in Rajaram v. Manik ILR 1951 Nag 948, the Court of first instance held that where there was a mutual mistake in the expression of a contract, then, notwithstanding that no suit has been brought under section 31 of the Specific Relief Act, 1877, corresponding to section 26 of the Specific Relief Act, 1963, a party is entitled to the grant of the relied on the ground of mistake, if it does not prejudicially affect the rights of third parties acquired in good faith and for value.

(3.) THE view of the learned District Judge that the plaintiff's suit was barred by limitation can hardly be assailed. In Ajabsingh Imrat v. Jhabbulal (supra) the plaintiff relied on a plea of mistake. The finding was that he had come to know of the mistake in December, 1936 or January 1937; and that as the suit was filed on 14th July 1941, the claim for rectification was barred by limitation. That precisely is the case here. The decision of J. Sen. J. in Rajaram v. Manik (supra) is dearly distinguishable. There, the defendant relied on the plea of mistake and claimed relief on that ground. His Lordship held the combined effect of proviso (1) to section 92 of the Indian Evidence Act and section 31 of the Specific Relief Act was that a defendant may plead and prove any mistake in the expression of a contract, notwithstanding that he had not filed a suit for rectification. He can resist a suit on the ground that what was sold to him was different from what the document described. The point of distinction between that case and the present one lies in the fact that the plea of mutual mistake there was a plea in defence and therefore there was no question of limitation involved. This is made clear by J. Sen. J thus: -