The limitation on the right to sue for rectification does not apply if the relief for rectification is only formal or incidental and not necessary for awarding the main relief prayed for.

Venkataramana Rao, J.

1. This is an appeal from the judgment of the learned Subordinate Judge of Rajahmundry granting a decree in favour of the plaintiff, the suit is upon a mortgage executed by the first defendant. The substantial defence to the suit was that the plaintiff was not entitled to ask for the sale of one of the items of the property, namely, Survey No. 172/2, on the ground that the property actually described in the deed of mortgage as having been mortgaged was only 172/4. The plaintiff in his plaint stated that the description 172/4 was a mistake for 172/2 and that if necessary the mortgage deed might be rectified by inserting 172/2 in the place of 172/4. But the substantial relief he prayed for in the plaint was the sale of 172/2 on the basis of the mortgage. One of the defences raised was that the prayer for rectification was barred by limitation because it was asked for after more than three years had elapsed from the date when the mistake came to the plaintiffs knowledge. This contention seems to have prevailed in the lower Court but the learned Subordinate Judge gave a decree on the ground that the prayer for rectification was an unnecessary prayer, that, if the plaintiff was able to establish before Court that by mutual mistake the property was described wrongly, it was open to the Court to take oral evidence in regard to it, treat the document as rectified and give relief to the plaintiff on the basis of the said property having been mortgaged thus giving effect to the intentions of the parties. The learned Subordinate Judge purported to follow a ruling of this High Court which clearly lays down that it is open to the plaintiff or the defendant to adduce oral evidence in regard to the correct description of the property in the conveyance executed between them and that relief in regard thereto can be granted even though a suit for rectification has not been filed vide Mahadeva Aiyar v. Gopala Aiyar I.L.R.(1910) 34 Mad. 51 and China Mallayya v. Veerayya (1915) 3 L.W. 551. It has been held that, so far as a defendant is concerned, even though he has not sued to have the document rectified and even though a suit for rectification is barred by limitation, nevertheless the Court is entitled to give him relief. Vide Mahendra Nath Mukherjee v. Jogendra Nath Roy Chaudhury 2 C.W.N. 260. But it is contended that a different rule ought to apply in the case of a plaintiff, that is, if he wants to get a relief on the basis of mutual mistake, it is his duty to institute a suit for rectification within three years from the date when the mistake came to his knowledge under Article 96 of Schedule II of the Limitation Act and no relief could be given if he allows his claim for rectification to be barred. It seems to us that this contention is not tenable. Article 96 will be applicable only if the plaintiff wants to file a suit for rectification of a deed and prays only for that relief. But if the plaintiff sues for possession of property or for a declaration of title in regard to property or, as in this case, for sale of property, on the basis of the mortgage executed in his favour and if the relief regarding rectification is only formal or incidental and not necessary for awarding the main relief prayed for, then Article 96 will have no application. In a case decided in Asiatulla v. Sadatulla (1917) 28 C.L.J. 197 it was held by Mukherjee and Walmsley, JJ., that:

Title may be established without rectification of an instrument, even though the time to secure a rectification of the instrument has elapsed, and that it is open to a party to give evidence to prove that his name has been-omitted from the document by fraud or mistake.

2. It seems to us that this is the correct principle and especially where the rights of third parties have not been intervened. So long as it is open to the parties to adduce oral evidence on the ground of mutual mistake in regard to mis-description of property and a Court can give effect to the