Sections 91 and 92 of the Evidence Act do not preclude a party from proving that the real contract between the parties was different from that recorded in a deed.

JUDGMENT :- This appeal arises from A.S. No.40 of 1957 on the file of the court of the Subordinate: Judge, Dindigul, which was filed against O.S. No.8 of 1957, on the file of we District Munsif Court, Dindigul. The defendant is the appellant herein. The facts are briefly as follows: One Sankaranarayana Pillai owned a block of land comprising of several survey numbers and extending in area, 111 acres and 34 cents. They were entered in patta No.1349 in his name in the revenue records. On 22-7-1943, under the sale deed, Ex.B.23, he sold 87 acres 28 cents out of the said block to two persons, Si Palamandi Thevar and Sa Palamandi Thevar. Subsequently, a document Ex.154 dated 23-8-1949 was executed, by Sankaranarayana Pillai to the two vendees. Since the major controversy in the suit has arisen on account of Ex.B4, its purport has to be given briefly. It states that the entire 111 acres and odd (comprised in the block) were agreed to be sold for Rs.3000 under Ex.B.23, that by mutual mistake, 24 acres and odd, set out in schedule B to Ex.B4, were omitted to be included in Ex.B-23, that Sankaranarayana Pillai was executing the rectification deed Ex.B4 to right this mutual mistake and that 24 acres and odd also should be deemed as having been sold under Ex.B.23. It also recites that the executant has simultaneously applied for transferring the B schedule properties from the patta number of the executant to the patta number of the vendees.

2. This document was not registered. It is common ground that purporting as it does, to be rectification deed consequent upon a mutual mistake, the document does not require registration, for its validity. The claim of the two vendees was that ever since the date of the sale under Ex.B.23, they really got into possession of the entire 111 acres and odd as vendees from Sankaranarayana Pillai, and that they were paying kist for the entire land including the 24 acres and odd. Sa. Palamandi Thevar sold; his half share in 87 acres and odd to one Ramaswami Naicker on 7-11-1951, who in turn sold is to the defendant on 24-10-1952. Si. Palamandi Thevar sold; his half share in 87 acres and odd to the defendant on 1-10-1952. Sankaranarayana Pillai however proceeding on the, footing that he was still entitled to 24 acres and odd gitted 5 acres and 13 cents out of it to the Boodan Committee, and by another deed dated 22-11-1954 settled the remaining 18 acres and 93 cents of the Secondary Education Committee of the Vellala Sangam who is the plaintiff in the suit.

The claim of the plaintiff was that in the sale deed dated 22-7-1943, only 87 acres and odd were sold and it was never intended to convey the balance of 24 acres and odd, that when the two vendees tried to sell their lands to one Krishnaswami Chetti in 1949, the Vendee insisted on a conveyance of the whole block. Thereupon the two Thevars approached Sankaranarayana Pillai for a sale of 24 acres and odd. In order to save stamp duty a document was written up as if it was a rectification deed. It was in the contemplation of the parties to have the deed registered, but on account of a sudden calamity in Sankaranarayan Pillais house, in was not registered. When subsequently Sankaranarayana Pillai asked the Thevars to return the unregistered document, they told him that they had mislaid it. What the Thevars intended at the time of the writing of the deed was to take a sale of 24 acres and odd for Rs.1000 so that the Thevars could sell the entire block to Krishnaswami Chetti, realise the price from him and pay Sankaranarayana Pillai. The sale to Krishnaswami Chetti did not materialise and, therefore, the whole transaction fell through. Ex.B4 was never acted upon. The plaintiff therefore claims to have obtained title to the extent of 18 acres and odd from Sankaranarayana Pillai under the settlement deed Ex.A.I dated 22-11-1954. Since the defendant trespassed upon ten acres and odd of the suit properties, and raised two crops thereon the plaintiff has come f