The suit for rectification of the sale deed was well within the period of three years as per Article 113 of the Limitation Act, 1963, and the finding of mutual mistake as to the survey number mentioned in the sale deed was upheld by the lower appellate court.

( 1 ) APPELLANT is the. defendant. Respondent is the plaintiff. The respondent brought the suit O. S. No. 51 of 1981 for rectification of the sale-deed Ext. P. 1 dated 3-7-1967. The rectification sought for is in respect of survey number of the land sold under the sale deed.

( 2 ) ACCORDING to the case of the respondent-plaintiff, in the sale-deed, due to mutual mistake instead of mentio- ning Survey No. 352/1b/1, Survey No. 252/1b/1 is mentioned; that he came to know of it only in the month of July 1980. The suit is filed on 30-6-1981.

( 3 ) THE appellant contested the suit and raised various pleas including the plea of limitation. The trial Court raised the following issues: (1) Whether the plaintiff proves that wrong survey number is shown due to mutual mistake of plaintiff and defendant in suit sale deed ? (2) Whether the suit is in time ? (3) Whether plaintiff is entitled for rectification as prayed tor? (4) Whether Sub Registrar is necessary party as contended by the defendant? , (5) Whether the suit is maintainable without the relief of declaration and injunction? (6) Whether the plaintiff proves that the suit sale deed was executed by the defendant? it answered Issue Nos. 1 to 4 and 6 in the negative and it further held that no finding was required to be recorded on issue No. 5. It accordingly dismissed the suit.

( 4 ) THE lower appellate Court on consideration of the evidence on record, has reversed the findings of the trial court on Issue Nos. 1 to 3 and 6, it has answered point No. 2 in the affirmative and reversed the judgment and decree of the trial court and decreed the suit.

( 5 ) HAVING regard to the contentions urged by Sri M. flama Bhat, learned counsel for the appellant, the following three points arise for consideration:1) Whether the lower appellate court is right in holding that the suit is in time? 2) Whether the finding recorded by the lower appellate court that there was a mutual mistake as to the survey number mentioned in the sale deed calls for interference ? 3) Having regard fo the facts and circumstances of the case, whether the grievance regarding non-framing of an issue as to. fraud and misrepresentation pleaded by the defendant appellant can be entertained ?

( 6 ) THE lower appellate court has recorded a finding that the plaintiff became aware of the mistake as 'to the survey number mentioned in the sale deed only in April or May 1980 when he approached the State Bank of India to obtain a loan on the security of the suit property. It was the bank which pointed out that the sale deed did not relate to the survey number on the security of which the loan was sought. Thereafter the suit was filed on 30th June 1981. This finding is a finding of fact. As such it is not liable to be disturbed in second appeal. It is on the basis of this finding 'and on applying Article 58 of the Limitation Act, 1963, (hereinafter referred to as the 'act'), the lower appellate court has held that the suit is well within time. "it is however contended by sri Rama Bhat learned counsel for the appellant that as per Atticle 58 of the act, the period of limitation commences when the right to sue first accrues. The ' learned counsel further submits that the right to sue first accured to the plaintiff on the date when the sale deed was executed and as the suit fs filed 14 years after the execution of the sale deed, it is beyond time. "it appears to me that this contention cannot be accepted. No doubt the courts below are not right in applying article 58 of the Act. Article 58 is a residuary article applicable to the suits relating to declarations. In fact it occurs in Part III of the Schedule to the Act under the heading "suits relating to declarat ons. ' It reads thus : article No. Description of suit period of limitation time from which period begins to run 58. To obtain any other declaration three years when the right to sue first accrues. In the suit in question, the plaintiff has not sought for any declar