A suit for rectification of a sale deed is maintainable where there is a concluded contract between the parties and the mistake in the deed is mutual.

JUDGMENT:- The first defendant is the appellant. The suit is (1) for a declaration that the plaintiff is entitled to the western half of the suit property; (2) for rectification of the plaintiff's sale deed dated 1-8-1960, describing the property conveyed under it as the western half instead of the eastern half of the plaint property; (3) for recovery of the western half of the suit property from the first defendant; and for other reliefs.

2. The plaintiff's case is that one Perumal Asari originally owned the suit property, that he died about 30 years prior to the date of the plaint, leaving behind him two sons, Subbiah Asary and Velayudhan Asari, that the two .sons became divided in status even before 1117 M.E., and each became entitled to one half share in the property, the eastern half being taken by Velayudhan Asari, and the western half being taken by Subbiah Asari. The elder brother Subbiah died about the year 1118 M.E. leaving behind him his son Eswaramoorthi Asari and his wife Chandanam Ammal. The son died about 15 years prior to the date of plaint, with the result that Chandanam Ammal became the full and absolute owner of the half share in the suit property. The plaintiff's case is that on 1-8-1960, the said Chandanam Ammal executed a sale deed in favour of the plaintiff in respect of the eastern half share in the plaint property of which she was then in possession. Subsequent to the sale, the plaintiff leased the eastern half to one Subramania Pillai, who was in possession as his tenant. While so, the plaintiff filed O.S. 1 of 1961 against the tenant for recovery of the property with arrears of rent, and the suit was decreed. In execution, the plaintiff therein got delivery of the eastern half of the suit property, and is in possession of the same. The case of the plaintiff is that at the time of the sale to the plaintiff, the western half was in possession of a stranger, and the first defendant alleging that he got title to and possession of the whole plaint property filed O.S.144 of 1962 on the file of the District Munsif Court, Nagarcoil, for declaration of his title and injunction. The present plaintiff was the first defendant in that suit. Chandanam Ammal was the second defendant, and Subramania Pillai was the third defendant. The said suit was decreed in favour of the first defendant for possession, the court holding that Subbiah got the western half and Velayudhan took the eastern half, and that the first defendant's vendor was competent to convey only the eastern half of the property. The plaintiff's case is that at the time of the sale deeds, none of the parties knew as to how the two brothers divided and took half share each in the plaint property, and the facts became known only during the trial of O.S.144 of 1962. The present suit for rectification is therefore filed.

3. Defendants 2 and 3 filed separate written statements admitting the claim of the plaintiff, and conceding that the suit may be decreed.

4. The first defendant is the contesting defendant, and his case was that the suit for rectification is not proper relief, that Chandanam Ammal's deceased husband's half right to the property was lost by adverse possession by the first defendant and his predecessors-in-title, and that the plaintiff is not entitled to any of the reliefs claimed.

5. The trial court held the question of rectification does not properly arise in this case and the plaintiff is not entitled to the relief of execution of any rectification deed in pursuance of the sale deed Ex.A-1 as claimed by him. The trial court also held that the plaintiff had no title to the western half of the plaint property, and that this being a suit in ejectment, the plaintiff has not established his possession within 12 years of suit. In the result, the suit was dismissed.

6. The plaintiff filed A.S.47 of 1967 on the file of the Court of the Subordinate Judge, Nagarcoil. The learned Judge reversed the decision of the trial court, and upheld the plain