In cases of written agreements where there has been innocent omission or insertion of a material stipulation contrary to the intention of both parties, Courts of equity can grant equitable relief by way of a declaration of the plaintiff's title to the lands which had actually been agreed to be sold, without driving the plaintiff to file a separate suit for rectification of the sale deed.

Judgement

PANIGRAHI, C. J. :- This is a second appeal filed by the defendants in a suit for declaration of title and confirmation of possession, or in the alternative for recovery of possession of the suit lands.

2. The plaintiffs case is that the defendants agreed to sell 1.10 acres of land appertaining to Khata No. 94, in Plot No. 334/969 in Sambara Chaka in Mouza Anlapatta within the sub-division of Khandapara and received Rs. 1300/- as consideration therefor. The defendants who took upon themselves the responsibility of executing a proper sale deed fraudulently inserted some other lands, which were of inferior quality, in the deed.

The plaintiff therefore prays for a declaration of his title to the lands agreed to be sold, and for possession of the same. The sale deed was executed by the defendants on 9-10-1948. The fraud was discovered on 27-1-1949 when the plaintiff got the sale deed from the Registration office. Soon afterwards he filed the suit, out of Which this appeal arises.

3. The defendants case is that they neither agreed to sell the lands in Sambara Chaka, nor had they received the sum of Rs. 1300/- as consideration from the plaintiff. They also denied that the plaintiff was put in possession of the lands in Sambara Chaka.

4. The question before the Courts was whether the registered kabala dated 9-10-1948 executed by the defendants correctly represents the intention of the parties and if it does not, what is the appropriate relief that should be granted to the plaintiff. Both the Courts below held that the defendants had in fact agreed to sell 1.10 acres of land in Sambara Chaka and that they received full consideration as alleged by the plaintiff.

The trial Court directed the dismissal of the suit. Though it came to the finding that the sale deed was executed fraudulently, it refused to grant a declaration of title or confirmation of possession as, in its view, the contract between the parties could not be specifically enforced in the present suit.

The learned Additional District Judge, who heard the appeal, while recording his concurrence with the findings of the learned Munsif, held that the plaintiff, was not under an obligation to seek a rectification of the sale deed and that the Court itself could grant the relief by way of putting him in possession in this very suit.

Accordingly, the point that has been urged before us in this second appeal is whether the plaintiff should be driven to file another suit for rectification of the sale deed in question, or whether in this very suit the Court can grant equitable relief by way of a declaration of the plaintiffs title to the lands which had actually been agreed to be sold.

Mr. Das, appearing for the defendants-appellants contended that as the second defendant is a minor no relief by way of specific performance should be granted to the plaintiff, but in my opinion there is no substance in this plea when the concurrent findings of the two Courts is that the minor has been benefited by receipt of consideration money and has executed the sale deed along with defendant 1 conveying these properties.

5. It is well established that Courts of equity will interfere in cases of written agreements where there has been innocent omission or insertion of a material stipulation contrary to the intention of both parties. Where the contract has been executed and the defendant has done all that he was bound to do it would be wholly otiose to require the defendant to execute a fresh deed or rectify the deed that he has already executed.

There would be no use in reforming an agreement when it is wholly executed and nothing remains to be done by either party; and in such cases the relief that the Court grant must be absolute and unconditional - Steele v. Haddock, (1885) 156 ER 597 (A).

6. In Mahendra Nath v. Jogendra Nath, 2 Cal WR 260 (B), the plaintiffs brought a suit to recover possession of some lands on the allegation that it was covered by a conveyance executed in their favour by the defe