CHANDRA SARUP Vs. KANHIAIYA LAL

JUDGEMENT

(1.) This is a plaintiff's first appeal arising out of a suit for possession, mesne profits and for rectification of a deed. The facts of the case are as follows : Chandra Sarup and Joti Prasad, defendants, are minors and both of them have certificated guardians appointed by the District Court. In Suit No. 37 of 1921, a decree on the basis of a mortgage deed was passed against them. In that deed a 10 biswa zamindari share in mahal Chain Sukh, patti Rattan Kunwar, entered in khewat as holding No. 2 in mauza Qayampur Bahiria had been mortgaged but the decree was passed in respect of only 8 biswa 12 biswansi and 13 kachwansi share out of the above-mentioned share. That decree was made absolute and was put in execution. The parties to the suit entered into a compromise on 1 March, 1929, and it was agreed that the 8 biswa 12 biswansi and 13 kachwansi share should be sold by the defendants to the plaintiff in consideration of a sum of Rs. 33,000. Rs. 23,000 went towards the satisfaction of the mortgage decree and the balance of Rs. 10,000 went towards-satisfying another decree No. 104 of 1921, which the plaintiff bad against the defendants.

(2.) The permission of the District Court was obtained in order to permit the guardian to execute a sale deed in favour of the plaintiff. The draft deed was sanctioned and then the sale deed was executed. Under the agreement dated 1st March 1929, the property to be sold was 8 biswa 12 biswansi and 13 kachwansi, situate in mahal Chain Sukh, patti Ratan Kunwar, and entered in khewat as holding No. 2 in mauza Qayampur Baharia; but somehow in the deed which was executed it was wrongly recorded that the property sold was in khata-khewat No. 1. The plaintiff made an application to the revenue Court and was put in possession. Later on an application was made to the revenue Court by the defendants contending that there has been no sale in favour of the plaintiff in khata-khewat No. 2 and therefore the mutation has been wrongly made in the plaintiff's favour. This plea was successful and the name of the plaintiff was removed from the khewat. The plaintiff thereupon instituted a suit in the civil Court against the defendants. He claimed a relief for rectification of the sale deed. It appears that the office reported that the court-fee paid was insufficient. After that the plaintiff made an application for amendment and gave up the relief for rectification and asked for possession of the property sold instead, The Court which tried that suit No. 20 of 1930, came to the conclusion that as the sale deed stood unrectified, the plaintiff could not sue for possession and therefore the claim was thrown out. Then the plaintiff instituted the present suit which has given rise to this appeal.

(3.) In the plaint it was alleged that the property agreed to be sold which was in khata-khewat No. 2 was not mentioned in the sale deed by the defendants and their pairokar intentionally acted in bad faith. It was pleaded that "the act of defendants was based on deception". The plaintiff therefore prayed for the rectification of the sale deed and for possession of the property sold and further claimed a sum of Rs. 3,300 on account of mesne profits. The suit was resisted by the defendants. The learned Judge of the Court below has given the plaintiff a decree for possession of the property in suit and for a sum of Rs. 900 on account of mesne profits. The defendants have preferred this appeal against the decree passed by the Court below. We may point out that in the trial Court several pleas were taken in defence but for the purposes of this appeal, it is not necessary to mention all of them. Before us, learned Counsel for the appellants pressed only two points. One was that the suit was barred by Rule 2, Order 2, Civil P.C., and the other was that the former decision dismissing the plaintiff's suit for possession operated as res judicata. We propose to first consider the plea to the effect that the suit is barred by Rule 2, Order 2, Civil P.C. We may point out here that so far as the facts are concerned, there is no dispute between the parties. It is admitted that under the agreement of 1 March 1929, printed at p. 13, the defendants agreed to sell their property in khata-khewat No. 2. It is further agreed that the defendants possessed no property in khata-khewat No. 1. The parties are also agreed that in the sale deed which was eventually executed on 5 July 1929, by the defendants in favour of the plaintiff, the property sold was not rightly described. There, in the sale deed, it was stated that the property sold was situate in khata-khewat No. 1 in which the defendants, as a matter of fact, had no property. The sale deed is printed at pp. 15 to 19. The learned Judge of the Court below in his judgment, discussing the question of concealment and deception came to the conclusion that neither party was aware of the mistake at the time of the execution of the deed but came to know of it afterwards. He remarked: Anyhow, the instrument can be rectified, no matter whether the wrong description was due to fraud or to mutual mistake and the point is not therefore material.