In cases of misdescription of property in a sale deed, the real intention of the parties should be gathered from the surrounding circumstances and the sale deed. Ordinarily, when there is a conflict between the plot number, khata number, and boundaries, the boundaries are to prevail.

P. K. MISRA, J.

( 1 ) SOME of the defendants are the appellants against the affirming appellate decision. Plaintiffs-respondents 1 and 2 had filed the suit for declaration of title, confirmation of possession, or in the alternative, recovery of possession in respect of the disputed land as described in plaint 'ka' Schedule and for permanent injunction restraining the defendants from entering upon the disputed land.

( 2 ) BRIEFLY stated, the case of the plaintiffs is as follows: The disputed 'ka' schedule land originally belonged to Radhu Dehury (defendant No. 1 ). The plaintiffs purchased the said land in the year 1977 under a registered sale deed and remained in possession. Subsequently, the plaintiffs purchased another piece of land adjacent to the disputed land in the year 1980. In the year 1981, they learnt that the plot number and khata number as indicated in the sale deed in respect of the disputed land were not correct. Thereafter the plaintiffs sent notice to defendant No. 1 to rectify the mistakes, but defendant No. 1 did not pay any heed to such notice and, on the other hand, sold the very same land to defendants 2 to 34 by executing a sale deed on 15-4-1981. Thereafter on the basis of the subsequent sale deed, defendants 2 to 34 tried to disturb the possession of the plaintiffs for which the plaintiffs had to file the suit.

( 3 ) DEFENDANTS 2 to 34 filed a joint written statement denying the allegations made in the plaint. They took the plea that there was no mistake in the sale deed executed by defendant No. 1 in favour of the plaintiffs. It was further pleaded that defendants 2 to 34 after purchasing the land in 1981 had acquired valid title and were in possession. The question of limitation was also raised. Defendant No. 1 in a separate written statement challenged the assertions made by the plaintiffs and supported the case of defendants 2 to 34.

( 4 ) THE trial Court on consideration of the materials on record decreed the suit on a finding that there was an error in khata number and plot number in the transaction in favour of the plaintiffs and accordingly declared the title and confirmed the possession of the plaintiffs in respect of the disputed land. On appeal by some if the defendants, the decision of the trial Court was confirmed. Hence the present second appeal by the very same defendants-appellants.

( 5 ) AT the time of admission of the second appeal on 14-1-1986, grounds Nos. C, E and I were certified to be the substantial questions of law as envisaged in Section 100 of the Code of Civil Procedure. Grounds C, E and I are extracted hereunder: -"c. For that the suit is originally one for rectification of mistake committed in a sale deed should have been filed within a period of three years inasmuch as the appellate Court has lost sight of this aspect of the case. E. For that in view of the specific objection of the defendants that the suit was grossly undervalued the learned Munsif should have framed the issue regarding valuation as a preliminary issue and after deciding that issue should have proceeded in trial of the suit. I. For that in view of the detail description of the sabit plot no with the area thereof in sale deed Ext. 2 executed by defendant No. 1 in favour of the plaintiff the Courts below should not have come to the conclusion that the suit land has been sold under the sale deed. "

( 6 ) THE learned Advocate for the plaintiffs-respondents raises a preliminary objection to the maintainability of the appeal. He submits that in view of the dismissal of the appeal as against respondents 5, 9 and 12, the entire appeal is liable to be dismissed. On a perusal of the records it appears that the appellants were required to take steps for substitution in place of deceased respondents 5, 9 and 12 and though petitions for substitution were filed, separate petitions for condonation of delay had not been filed. Time was granted to the appellants on several occasions to take steps for filing separate