Rangasami Ayyangar (Died) … vs Souri Ayyangar on 30 April, 1920

Madras High Court
Rangasami Ayyangar (Died) … vs Souri Ayyangar on 30 April, 1920
Equivalent citations: (1916) ILR 39 Mad 792
Author: S Ayyar
Bench: S Ayyar, Napier


Seshagiri Ayyar, J.

1. This is a suit to recover possession. Plaintiff’s case was that he purchased Survey No. 92-B from the owners in April 1911 and that the defendant is wrongfully in possession of it. The defendant pleaded that the same vendors conveyed to him the property in dispute in 1908 and that although the conveyance (Exhibit III) describes the land sold as Survey No. 90-B, his vendors intended to sell and he intended to purchase only Survey No. 92-B. He also alleged that he was put in possession of this latter number under the sale-deed.

2. The Issue raised in the case was whether it was Survey No. 90-B or 92-B, that was sold to the defendant. The Munsif agreed with the defendant’s contention and dismissed the suit. In appeal, the Subordinate Judge held that evidence to prove that what was described in the document was not what was actually sold was inadmissible under Section 92 of the Evidence Act and decreed the plaintiff’s claim.

3. We think the Subordinate Judge is wrong. The written statement clearly sets up a case of mistake in the description of the property sold. There can be no doubt that on the allegations contained in the written statement, the defendant would be entitled to claim rectification of his sale-deed under Section 31 of the Specific Relief Act. Under Section 92, Clause (a), any fact may be proved which would entitle any person to any decree on the ground of ” mistake of fact or law.” Thus it is clear that if he went to Court as plaintiff, the defendant could have claimed relief by way of injunction against the plaintiff from interfering with his possession, and to have his sale-deed rectified. Does the fact that the defendant is resisting the plaintiff’s claim disable him from setting up the plea which could have availed him as plaintiff? We think not. We find nothing in the language of Section 92, Clause (a), which indicates that this benefit can be invoked only by the plaintiff. In Mahendra Nath Mukherjee v. Jogendra Nath Roy Chaudry (1897) 2 C.W.N. 260, it was held that the defendant can protect himself by such a plea. See Dagdu v. Bhana (1904) I.L.R. 28 Bom. 420. In this Court it was decided in Karuppa Goundan alias Thoppala Goundan v. Periatambi Goundan (1907) I.L.R. 30 Mad. 397 and Mahadeva Ayyar v. Gopala Ayyar (1911) I.L.R. 34 Mad. 51, that a plaintiff pan sue to recover the right property notwithstanding misdescription in his document of title. Reliance was placed in these two cases on the proviso to Section 92. None of these cases have been considered by the Subordinate Judge. It is true that Section 94 has no application as pointed out by him, but the combined effect of Section 92, Clause (a), and of Section 31 of the Specific Relief Act leaves no room for doubt that the defendant can resist the suit on the ground that what was sold to him was different from what the document described.

4. Mr. Narasioaha Ayyangar contends that on the facts he will be able to show that there was no mistake. We must reverse the decree of the Subordinate Judge and remand the appeal for disposal on the merits. Costs to abide the result.

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