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2019 Supreme(All) 836
IN THE HIGH COURT OF ALLAHABAD
HARSH KUMAR, J.
Sartaj And Another - Appellant
Versus
Ayub Khan - Respondent
Second Appeal No. 260 of 1992
Decided on : 02-07-2019
Advocate Appeared:
Vipin Saxena, Adv., S.K. Verma, Adv., A.R. Gupta, Adv., K.C. Pushkar Pandey, Adv., Krishna Chandra Pushkar, Adv.
Headnote:
Specific Relief Act, 1963 – Section 26,31 – Civil Procedure Code, 1908 – Order X Rule 2 – Appeal against impugned judgment and decree passed by Additional Civil Judge, by which lower appellate court by allowing appeal and setting aside judgment and decree passed by 4th Additional Munsif, dismissed plaintiffs suit – Whether Additional Civil Judge had not at all considered material issues involved in case and based his judgment on irrelevant considerations – Whether Additional Civil Judge had committed illegality in rejecting admitted facts on which depended decision of case – Held, Precise terms of contract of sale had been orally agreed between plaintiff-defendants but due to mutual mistake mentioned above sale deed which was reduced into writing and registered did not express real intent of parties to contract of instrument in question – Additional Civil Judge/lower appellate court acted wrongly, illegally and perversely in holding that there was no mutual mistake between parties to impugned sale deed – Impugned judgment and decree passed by Additional Civil Judge, are set-aside and judgment and decree passed by trial court stands restored with modification that impugned sale deed in favour of defendant-respondent as per particulars given in judgment and decree – Appeal allowed. (Paras: 27, 30 & 32)
Facts of the case:
Appeal against impugned judgment and decree passed by Additional Civil Judge, by which lower appellate court by allowing appeal and setting aside judgment and decree passed by 4th Additional Munsif, dismissed plaintiffs suit – Whether Additional Civil Judge had not at all considered material issues involved in case and based his judgment on irrelevant considerations – Whether Additional Civil Judge had committed illegality in rejecting admitted facts on which depended decision of case.
Findings of the court:
Precise terms of contract of sale had been orally agreed between plaintiff-defendants but due to mutual mistake mentioned above sale deed which was reduced into writing and registered did not express real intent of parties to contract of instrument in question – (i) Additional Civil Judge, lower appellate court not at all consider material issues involved in the case and based its judgment on irrelevant considerations and findings recorded by it are wrong, illegal and perverse, (ii) Additional Civil Judge, lower appellate court committed illegality in rejecting admitted facts by misreading and misappreciating evidence on record and its decision with arbitrary and perverse findings is based on surmises and conjectures and (iii) Additional Civil Judge/lower appellate court acted wrongly, illegally and perversely in holding that there was no mutual mistake between parties to impugned sale deed – Impugned judgment and decree passed by Additional Civil Judge, are set-aside and judgment and decree passed by trial court stands restored with modification that impugned sale deed in favour of defendant-respondent no.1 as per particulars given in judgment and decree.
Result: Appeal allowed
JUDGMENT :
Harsh Kumar, J.
The present second appeal has been filed against impugned judgment and decree dated 30.9.1991 passed by Additional Civil Judge, Etah in Civil Appeal No.92 of 1989 (Ayub Khan Vs. Sartaj and others), by which the lower appellate court by allowing appeal and setting aside judgment and decree dated 17.7.1989 passed by 4th Additional Munsif, Etah in Civil Suit No.467 of 1986 (Sartaj Vs. Ayub Khan), dismissed plaintiffs' suit. Feeling aggrieved plaintiffs have preferred this appeal which was admitted vide order dated 4.2.1992 on following two substantial questions of law framed by this Court:-
"(i) whether the Additional Civil Judge had not at all considered the material issues involved in the case and based his judgment on irrelevant considerations.
(ii) whether the Additional Civil Judge had committed illegality in rejecting the admitted facts on which depended the decision of the case."
2. At the time of hearing parties' counsel in appeal one more substantial question of law found to arise in the second appeal and was framed as under:-
(iii) whether the Additional Civil Judge was correct in holding that there was no mutual mistake for rectification in the impugned sale deed.
3. The brief facts relating to the case are that appellants filed Civil Suit No.467 of 1986 with the allegations that plaintiffs purchased property land Khasra No.843-A and 843-B area 0.20 acre from defendant-respondent nos.2 & 3 Sri Jodha son of Sri Govind and Smt. Jal Devi daughter of Smt. Ram Devi on 19.12.1985 by registered sale deed for valuable consideration of Rs.2,000/- but due to inadvertent clerical mistake and misunderstanding of scribe, in the sale deed in question, executed by Jodha and Jal Devi, defendant nos.2 & 3 by putting their thumb impressions, names of their father and mother, Sri Govind father of Sri Jodha and Smt. Ram Devi mother of Smt. Jal Devi were wrongly mentioned as vendors in place of Sri Jodha and Smt. Jal Devi and taking undue advantage of above mutual/clerical mistake defendant no.1 Ayub Khan obtained a sale deed from Sri Jodha and Smt. Jal Devi in his favour on 6.3.1986. The following reliefs sought in the plaint are for issuing of (a) a decree for rectification of sale deed dated 19.12.1985 for writing names Sri Jodha and Smt. Jal Devi as vendors in place of names of Sri Govind and Smt. Ram Devi, (b) a decree for cancellation of sale deed dated 6.3.1986 allegedly obtained by defendant no.1 from defendant nos.2 & 3 in respect of property in suit and (c) a decree for permanent injunction restraining defendants from interfering in the peaceful possession of plaintiffs over the property in suit. In written statement filed by contesting defendant no.1 Ayub Khan in paras 1, 2 & 3 of written statement it was admitted that Sri Govind father of Sri Jodha and Smt. Ganga Devi @ Ram Devi mother of Smt. Jal Devi, were previous owners of land in suit and Sri Govind died about 10 years back while Smt. Ganga Devi @ Ram Devi died about 12 years back, leaving behind them Sri Jodha son of Govind and Smt. Jal Devi daughter of Smt. Ganga Devi @ Ram Devi as their only legal heirs.
4. The trial court framed following five issues on parties' pleadings viz.
(i) Whether sale deed dated 19.12.1985 is liable to be rectified?
(ii) Whether sale deed dated 6.3.1986 is liable to be cancelled?
(iii) Whether suit is barred by provisions of Section 34 of Specific Relief Act?
(iv) Whether suit is under valued and Court fees paid is insufficient? and
(v) To what relief, if any, are the plaintiffs entitled?
5. Apart from disputed sale deeds, copy of extract of Khatauni, reports of handwriting and finger print expert by both parties were filed as documentary evidence. The plaintiffs produced Sri C.K. Jauhari, Finger Print and Hand Writing Expert as P.W.-1, Sri Safi Alam as P.W.-2, Sri Jodha son of Govind as P.W.-3 and Sartaj-plaintiff as P.W.-4 while defendant no.1 produced Noor Alam Khan as D.W.-1 and Ayub Khan himself as D.W.-2. After hearing parti
