KISTOORMALL Vs. SATTAR MOHAMED

JUDGEMENT

(1.) THIS is an appeal by the plaintiffs against a decree of the Senior Civil Judge, jodhpur, dismissing a part of their claim in a suit brought under Section 31 of the specific Relief Act for (1) a rectification of the boundaries of the mortgaged property in mortgage-deed dated 1-4-46, (2) a rectification of the boundaries of the mortgaged property given in the plaint in mortgage suit No. 47/48-49 brought in the Court of the District Judge, Jodhpur, on the basis of the mortgage-deed and (3) declaration that the preliminary and final decrees in suit No. 47/48-49 dated 30-11-49 and 13-3-50 respectively relate to the property described in para 1 of the plaint of the present suit and the plaintiffs have a right to get the house sold in execution of the decree. The mortgage-deed was executed by one Dhume Khan, who died before the suit was brought. Sattar Mohamed, defendant No. 1, is the son, Smt. Chanda and Smt. Hanifa, defendants Nos. 2 and 3 are the widows and Smt. Halima is the daughter of Dhume Khan deceased. Defendants Nos. 1 and 3 contested the suit. The mortgage-deed was executed in favour of Smt. Bilam Kanwar wife of Kanmal who brought the present suit. She died during the pendency of it and her legal representatives, who were brought on record as plaintiffs, prosecuted the suit.

(2.) THE facts which have given rise to the present case are these. Smt. Bilam kanwar obtained a final decree for sale on the foot of the above mortgage-deed and put the mortgaged property to auction in execution. When the sale was being held by the Amin defendants Nos. 1 and 2 filed an objection on 13-3-51 before the district Judge which was the executing Court that the Amin was selling some property at the instance of the decree-holder in execution which was not mentioned in the decree. The executing Court held an inquiry into the matter. The decree-holder admitted that the boundaries of the house which was being sold were different from the boundaries entered in the decree. Her contention however was that the property which was being auctioned was the one which the mortgagor intended to mortgage and that wrong boundaries were entered in the mortgage-deed by mutual mistake, which was repeated in the plaint and the decree. She accordingly prayed that she may be allowed to prove what property was intended to be mortgaged. After hearing the arguments of both parties the District judge allowed the decree-holder to adduce evidence on the point. Against that order defendants Nos. 1 and 2 filed D. B. Civil Miscellaneous First Appeal No. 1/1952. It was held by this Court that in the case of a mutual mistake of the parties such as the one alleged to have been committed in the mortgage-deed in the present case, the remedy was by way of suit and not by way of application in execution proceedings or an application under Section 151 or Section 152, C. P. C. This case is reported in Mt. Chanda v. Mt. Bilam Kunwar, ILR 1953-3 Raj 914 (A ). Smt. Bilam Kanwar then brought the present suit for the reliefs indicated above. It was contested by defendants Nos. 1 and 3. The learned Civil Judge held that by mutual mistake wrong boundaries were entered in the mortgage-deed dated 1-446, although it was the intention of the parties to mortgage the house described in para 1 of the plaint. He accordingly granted relief No. 1 to the plaintiff. He was however of the opinion that reliefs Nos. 2 and 3 could not be granted in the present suit. He accordingly did not decree these reliefs in favour of the plaintiffs. Against this the plaintiffs have filed the present appeal claiming that they are entitled to reliefs Nos. 2 and 3 also. Smt. Hanifa filed a cross-objection challenging the decree on the ground that the plaintiffs are not entitled even to relief No. 1 as there was no mutual mistake.

(3.) TAKING up the cross objection fust we find that there was a mutual mistake on account of which wrong boundaries were entered in the mortgage-deed dated 1-446. Azim Khan father of Dhume Khan owned two houses and a Nohra which were adjacent to one another. He died leaving two sons Dhume Khan and Karim Khan. Ex. 1 is a plan of the two houses and the Nohra which was prepared by Abdul rehman P. W. 11 and was duly proved. From this plan it is clear that the Nohra is part of the house shown in yellow colour. It is connected with it. On the other hand it is not connected With the other house. The Nohra and the house with which it is connected have been referred to by this witness as the house of Dhume Khan. Its main door faces towards the west, and opsns into a courtyard which is common to both the houses. This courtyard has a door opening towards north. The yellow coloured house and the Nohra are bounded on the south by the house of Ganchi Chhellia, on the north by the house of Chinpa ibrahim, who purchased it from Chhottu, on the east by a thorough-fare and the house of Ganchi Chhelia and on the west by the other house referred to by the witness as the house of Karim Khan, the entrance door of this other house opens towards the north into the common courtyard re-ferred to above. This house is bounded on the west by the Nohra of the other house, on the south by the house of Gafoor Khan, on the west by the house of Ghisu Khan and on the north by the house referred to by this witness as the house of Dhume Khan.