IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 31 of 1995()
1. KAMALAKSHYAMMA THANKAMMA
... Petitioner
Vs
1. KAMALAKSHYAMMA SARASWATHYAMMA
... Respondent
For Petitioner :SRI.PIRAPPANCODE V.S.SUDHIR
For Respondent :SRI.R.S.KALKURA
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :11/02/2009
O R D E R
THOMAS.P.JOSEPH, J
==================
S.A.No. 31 of 1995
==================
Dated this the 11th day of February, 2008.
J U D G M E N T
The substantial question of law formulated for a decision is
whether the courts below are justified in relying on a wrong
description of the property in Ext.A1 to declare the respondents’
possession and enjoyment of the schedule property and whether
the courts below ought to have found that the property covered by
Ext.A1 is not the schedule property.
2. Respondents initiated the litigation seeking declaration of
their title and possession of the plaint scheduled property and for
fixation of its eastern boundary. They claimed that the suit
property which is described as seven cents in R.Sy.No. 2014/2 was
acquired by the 1st respondent as per Ext.A1, sale deed No. 2904
dated 9.6.1964 executed by the 1st appellant. It is also claimed that
the respondents have been in possession and enjoyment of the said
property paying its revenue. Respondents alleged that the
appellants destroyed the eastern boundary of the said property.
That lead to the institution of the suit. Appellants admitted the
execution of Ext.A1 by the 1st appellant but their contention is that
S.A.No. 31 of 1995 -2-
though a property as described in the schedule of Ext.A1 was
purported to be sold to the 1st respondent, what was really
intended by the parties is to convey another item of land which is
situated on the immediate east of another 10 cents belonging to
the 1st respondent situated on the south of the property referred to
in Ext.A1. Appellants denied that they destroyed the physical
boundary on the eastern side of the schedule property. Learned
Munsiff found that in view of Ext.A1, the appellants cannot dispute
the identity of the property sold, accepted the case of the
respondents and granted decree. It was directed that Ext.C2, plan
prepared by the Advocate Commissioner with the assistance of the
Surveyor will form part of the decree. Appellants challenged that
judgment and decree before the First Additional District Court
Thiruvananthapuram. Learned Additional District Judge confirmed
the judgment and decree. It is contended by the learned counsel
for appellants that the view taken by the learned Munsiff that in
view of Ext.A1 the defence of appellants in the suit is foreclosed as
they could not adduce evidence in support of their contention that
what was intended to be conveyed and actually conveyed is
another plot of land, is erroneous. Learned counsel placed
reliance on the decision in Balaprasad Asaram Charkha and
others v. Asmabi w/o Fakruddin Bohri [A.I.R. 1954 NAGPUR
S.A.No. 31 of 1995 -3-
328], Sateri Shiddappa Gadkari v. Rudrappa Shetteppa
Bachenhatti [A.I.R. 1954 BOMBAY 463] and Rikhiram
Pyarelal and another v. Ghasiram Dukalu [A.I.R. 1978
MADHYA PRADESH 189]. According to the learned counsel,
evidence on record is sufficient to show that it is a case of mistaken
identity of the property sold. Counsel for the respondents asserted
that the concurrent findings of fact by the courts below required no
interference.
3. It is seen from the judgment of the learned Munsiff that a
view has been taken that in the light of Ext.A1, it is not open to the
appellants to contend that what was sold as per Ext.A1 is not in the
property scheduled in the plaint but another plot of land. That
view stems from Section 92 of the Indian Evidence Act which
excludes oral evidence against the terms of a contract, grant or
other disposition of property or any matter required by law to be
reduced to the form of a document. The contention that there was
a common mistake regarding the description and boundaries in
Ext.A1 and what was intended to be sold is another plot of land
cannot be brought within the mischief of “terms of any such
contract, grant or other disposition of property”. Oral evidence is
admissible to prove that the expression of the contract was
contrary to the intention of the parties due to a common mistake
S.A.No. 31 of 1995 -4-
and it is possible to prove by evidence that what was intended to be
sold is not the property referred to in the document in question.
Even in the absence of a suit for rectification of the instrument as
contemplated under Section 31 of the Specific Relief Act, it is
possible for the party concerned to raise such a plea either as
plaintiff or in defence provided of course, rights of third parties
who bonafide purchased the property for consideration without
noticing the ‘common mistake’ is not involved. The decisions of the
Nagpur, Bombay and Madhya Pradesh High Courts in the cases
referred above, support that view.
4. Learned counsel for respondents contend that it is
possible to raise such a contention only if at the time when such a
defence is taken, a suit for rectification of the instrument under
Section 31 of the Specific Relief Act is not barred by limitation.
Learned counsel invited my attention to the observation in Sateri
Shiddappa Gadkari v. Rudrappa Shetteppa Bachenhatti
[A.I.R. 1954 BOMBAY 463].
5. I am unable to accept that contention of the learned
counsel. For, it is when the respondents attempted to enforce their
right under Ext.A1 which according to the appellants contain a
common mistake regarding identity of the property that the
appellants are required to take up such plea. A plea in defence
S.A.No. 31 of 1995 -5-
cannot be said to be barred by limitation. Therefore, it is open to
the appellants to show that what is conveyed by Ext.A1 is not the
suit property, but, another plot of land.
6. Now, I have to refer to the evidence adduced by the
parties. It is not disputed and proved by the respondents that the
1st appellant executed Ext.A1, for valid consideration. That, the
schedule descriptions in Ext.A1 as it stands relate to the suit
property is not very much in dispute. The contention of the
appellants is that what they sold as per Ext.A1 is not the suit
property but another item of land. This is clear from the
suggestion made to PW1, husband of the 1st respondent in cross
examination that though in Ext.A1 the property sold is described as
situated on the south of the 10 cents, the property sold for
convenient enjoyment (of the respondents) is on the east of the said
10 cents which also belonged to the first respondent. PW1 denied
that suggestion. Records reveal that the Advocate Commissioner
had identified the suit property based on the descriptions in
Ext.A1. Ext.C2 is the plan prepared by Commissioner with the
assistance of the Surveyor. In Ext.C2, the suit property (coming
within the descriptions in Ext.A1) is shown as the red shaded
portion. On its south, the 10 cents admittedly belonging to the
respondents is marked in green (in Ext.C2). On the east of the said
S.A.No. 31 of 1995 -6-
green shaded portion is another 12.625 cents which also belongs to
and is in the possession of the respondent. According to the
appellants, the property conveyed as per Ext.A1 is the yellow
shaded portion in Ext.C2. But concededly, the boundary
description in Ext.A1 did not support that contention.
7. The suit property as described in the plaint schedule
tallies with the descriptions in Ext.A1 (item No. 2) in respect of the
7 cents. The Advocate Commissioner found on measurement the
extent of the red shaded portion as 7 cents. It is seen from Ext.A2
that consequent to the transfer as per Ext.A1, 1st respondent has
been paying revenue for the 7 cents. What is now pressed into
service by the appellants is Ext.B1, a gift deed of the year 1981
executed by the 1st appellant in favour of her daughter, 2nd
appellant. Ext.B1, according to the appellants covered the suit
property also. Learned counsel contends that Ext.B1 was executed
before the institution of the suit and therefore, no oblique motives
could be attributed to the execution of Ext.B1. But fact remained
that Ext.B1 was executed in the year 1981 while Ext.A1 was
executed by the 1st appellant in favour of the respondent in the
year 1964. Therefore, whatever be the intention behind the
execution of Ext.B1, that document cannot take precedence over
Ext.A1. It is seen from Ext.C2 which again is not objected by the
S.A.No. 31 of 1995 -7-
appellants that the property comprised in R.Sy.No.2014/3 is
situated on the further south of the green and yellow shaded
portion. Ext.B1 is not sufficient to prove that what was conveyed
as per Ext.A1 is not the suit property. In this situation, it is
pertinent to note that the appellants did not produce their original
documents nor requested the Advocate Commissioner to measure
the properties based on such documents.
8. It is contended by the learned counsel for appellants that
respondent did not produce the title deeds in respect of the green
and yellow shaded portions marked in Ext.C2 and that non
production of the documents was with ulterior motives. But, the
suit is in respect of the disputed property which according to the
respondents is covered by Ext.A1. The appellants did not, at any
point of time require the respondents to produce their title deeds
in respect of the green and yellow shaded portions.
9. It is then contended that the respondents have no
possession of the disputed property, no evidence is produced by
the respondent to prove their possession and that even as per
report of the Advocate Commissioner (Ext. C1) and the evidence
given by DW2, respondent can have no possession of the disputed
property. DW2 claimed that since before 4 years of the institution
of the suit, he has been running a brick kiln in the disputed
S.A.No. 31 of 1995 -8-
property. He obtained permission for running the brick kiln from
the appellants. PW1 admitted that there is a brick kiln towards the
eastern portion of the 7 cents and that portion of the brick kiln
comes in the property admittedly belong to the appellants and
situated on the immediate east of the suit property. According to
PW1, since DW2 wanted to put up a brick kiln, he also granted
permission. Evidence of DW2 is not sufficient to hold against the
recitals in Ext.A1. It is recited in Ext.A1 that the 1st appellant
handed over possession of the 7 cents referred to therein to the 1st
respondent. It must be presumed that the respondents continue in
possession of the 7 cents. DW2 claimed that he has document to
show that he obtained permission from the appellants to put up the
brick kiln but he did not produce that document. Exts.A1 and A2
show that the respondents are in possession of the suit property.
When the appellants claimed as against the recitals in Ext.A1 that
they continue to be in possession of the suit property, it was for
them to substantiate that contention and show that the recital in
Ext.A1 was not correct. Appellants have not adduced acceptable
evidence in that respect. The statement made by the Advocate
Commissioner in Ext.C1 about what he learned about possession
cannot be accepted as the Commissioner is not expected to speak
about possession. This is a matter to be decided by the court on
S.A.No. 31 of 1995 -9-
evidence, may be including the datas if any supplied by the
Advocate Commissioner.
10. It is contended by the learned counsel for appellants that
though PW1 stated that the green and yellow shaded portions and
the red shaded portion in Ext.C2 lie contiguous, Exts.C1 states that
the green and yellow shaded portions lie within specified
boundaries. According to the learned counsel, that is an indication
that the red shaded portion is not in the possession of the
respondents. The Advocate Commissioner has stated in Ext.C1
that the first respondent has his residential building with other
structures in the green shaded portion. A boundary between the
red shaded (suit property) and the green shaded portion is not
inconsistent with the claim of the respondents.
11. It is true that it was open to the appellants to raise a
contention as made by them even without a separate suit for
rectification of the instrument under Section 31 of the Specific
Relief Act. But it is important to remember that in spite of the
appellants claiming that there is a wrong description of the
property in Ext.A1 no attempt was made by them to correct that
mistake in Ext.A1 of the year 1964 in appropriate proceedings till
they raised a contention to that effect in the suit filed in the year
1984. It is difficult to think that in spite of getting Ext.A1 in the
S.A.No. 31 of 1995 -10-
year 1964, respondents remained idle till 1984 without trying to
get possession of the property covered by Ext.A1. Courts below
concurrently found that what is conveyed as per Ext.A1 is the suit
property marked in red shade in Ext.C2. It is also found that AB
line is the boundary between the suit property marked in red shade
in Ext.C2 and the property belonging to the appellants on its east.
There is no reason to interfere with the concurrent findings
entered by the courts below.
12. I make it clear that I am not not interfering with the
observation made by the learned Munsiff regarding the right if any
of the appellants to move against the 12.625 cents with whatever
defence that may be available to the respondents.
Appeal fails. It is dismissed. No Costs.
THOMAS.P.JOSEPH, JUDGE
rhs