MAHMED EUSUF Vs. UMED ALI MIAN

JUDGEMENT

(1.) This appeal arises out of a suit for rectification of a kobala or in the alternative for refund of proportionate consideration together with damages. The kobala in question differs from the bainama on which it purports to be based, both in respect of the total area of land conveyed and in respect of the northern boundary of that land. The learned Munsif who tried the suit held that there had been no mistake or fraud in the matter of the conveyance, and that the northern boundary had been changed with the knowledge of both parties. The learned Munsif further found that there was some deficiency in the area of the land actually conveyed but that having regard to the terms of the kabuliyat and the manner in which the plaint was framed, the plaintiff was not entitled to any refund or damages, and he accordingly dismissed the suit.

(2.) The learned Subordinate Judge who heard the appeal agreed with the learned Munsif in holding that there bid been no mistake or fraud, and that the alteration in the area and in the boundaries had been acquiesced in by the plaintiff in order to make the conveyance conform to the defendant's title deed. On these findings the learned Subordinate Judge ought, in my opinion, to have dismissed the appeal preferred by the plaintiff for, as the learned Munsif rightly observed, the plaintiff had no case for rectification once it had been held that the northern boundary and the area had been changed with the knowledge and consent of both the parties. The learned Subordinate Judge however instead of dismissing the appeal for the reasons indicated above, proceeded to consider whether there ought not to be some rectification of the kobala in respect of the southern boundary, though no foundation for such rectification had been laid id the plaint. In this the learned Subordinate Judge was, in my opinion, clearly wrong, for the suit as framed, related only to the, rectification of the northern boundary. The learned Subordinate Judge next proceeded to consider whether the plaintiff had actually got possession of the whole of the area intended to be conveyed. That question was in my opinion entirely outside the scope of the suit, the question for decision being whether the kobala was a correct expression of the intention of the parties and of the agreement entered into between them, and not whether the plaintiff had or had not actually got possession in pursuance of that agreement.

(3.) On a consideration, of the first point indicated above, the learned Subordinate Judge, holding that there had been a distinct understanding between the parties that any deficiency in the land conveyed by the kobala, as compared with the land specified in the agreement for sale should be made up by the defendant, directed the defendant to execute a separate conveyance in respect of a strip of land to the south of the kobala land, and on a consideration of the second point, the learned Subordinate Judge further ordered the defendant to pay the plaintiff a certain sum as compensation for the deficit area. Both these matters were, in my opinion, quite outside the scope of the suit, and the orders made by the learned Subordinate Judge in respect of these matters must therefore be set aside. The result is that the appeal is allowed with costs throughout and the judgment and decree of the lower appellate Court are set aside and those of the trial Court are restored.