1984 CLC 172 (PLP)

‑‑ S. 100‑Evidence Apt (I of 1872), S. 92 (a)‑Specific Relief Act (I of 1877), S. 31‑Second appeal‑Suit property described incorrectly- Title accrued cannot be defeated‑Both plaintiff and respondent claiming that they were: sold property in same Khasra and that they were also delivered possession of same; in pursuant of sale deeds‑Examination of witnesses showing that suit land was sold to respon dents and their possession as owners affirmed‑Khewat number of land was incorrectly mentioned in sale deed executed in favour of plaintiff whereas Khasra number was erroneously mentioned in sale deed executed in favour of respondents and mistake as such appear ing in both sale‑deeds‑Sellers in both sale‑deeds were co‑sharers in Khewat but other co,‑sharers wino sold land to appellant also delivered possession to respondents who raised construction there on‑As against this co‑sharer who sold land to plaintiff did not deliver actual possession and as such on basis of sale‑deed plaintiff could not seek eviction of respondents from land in dispute‑.Title accrued to respondents, held, cannot be defeated on account of mentioning wrong Khasra number in sale deed‑On basis of sale made by another co‑sharer plaintiff, ,'cannot claim a joint decree for possession in respect of land sold to, respondents by other co‑sharers as they sole land of their share only‑Plaintiff on basis of sale‑deed may be having right to obtain possession through partition out of Khewat in question but in view off circumstances of case can neither seek eviction of respondents nor is entitled to grant of a decree for joint possession of land in. question‑Finding of first‑ appellate Court dismissing suit of appellant, upheld. Uttam Singh and others v. Chuhra and others A I R 1926 Lah. 567 and Mokhan Lal v. Moti Ramp A I R 1928 Lah. 429 ref. Kolachina Mellayya v. Kannekanti Veeriah and others 31 I C 671 and Rangaaswami Aiyangar and another v. Sowri Aiyangar 29 I C 588 rel. The second appeal under section 100, C. P. C. is directed against judgment, dated 1‑10‑1965 of the learned Additional District Judge, Lahore whereby the decree and judgment, dated 28‑6‑1963 of the Administrative Civil Judge, Sheikhupura was set aside and the suit of the appellant was dismissed.

2. The suit was filed by Ch. Ghulam Sarwar, deceased (now repre sented by his legal heirs) claiming that the suit land measuring one Kanal and seven Marlas was purchased by him, on 25‑7‑1949 through a registered sale‑deed executed by one Muhammad Abdullah and that the possession of the same was also delivered to him. It was also asserted in the plaint that a notice, dated 23‑7‑1953 was served on Haji Muhammad Ali, respon dent No. 1 forbidding him from erecting any construction over the plot in question but the said notice was never replied to and that the need to file the suit arose as about 4 years prior to the institution of the suit respondent No. 1 after entering illegally raised construction over an area of 4 Marlas of the land in dispute. Muhammad Ali, respondent in the written statement filed averred that his sons respondents 2 and 3 were in possession of the plot in question having purchased the same through sale deed, dated 25‑7‑1949 executed by Muhammad Sharif and Sher Muhammad. In view of above assertion, the plaint was amended and respondents Nos. 2 and 3 the sons of Muhammad Ali respondent No. 1 were impleaded as defendants. The plaint was again amended so as to seek relief of posses sion. The learned trial Court after framing the issues and recording evidence of the parties decreed the suit vide judgment and decree, dated 28‑6‑1963. On respondents' appeal the aforesaid decree of the learned trial Court was set aside by the learned Additional District Judge and the suit was dismissed vide judgment and decree, dated 1‑10‑1965. (3) "Whether the plaintiff purchased the suit land from Abdullah, if so, whether he became owner of the suit land ? (4) Whether the defendants Nos. 2 and 3 purchased the suit land, if so, whether they became its owners ? (5) Whether the plaintiff has remained in possession of the suit land within 12 years The learned trial Court under Issues Nos. 3 and 4 held that Ghulam Sarwar was owner and defendants Nos. 2 and 3 were not the owners of the suit land as they did not purchase the suit land as claimed by them. Under issue No. 5 it was held by the learned trial Judge that the defendants came into occupation of the suit land some time after 1953 and as such their possession for over 12 years before the suit was not complete. As against this, the learned first appellate Court recorded the finding ‑that it was just a mistake that in the sale‑deed Exh. D. 1 Khasra number of the land sold was mentioned as 177 as it emerges out from record that it was actually Khasra No. 277 which was sold to defendants, Nos. 2 and 3 and not Khasra No.

177. It was further held that if defendants Nos. 2 and 3 are also held owners alongwith the plaintiff in the suit land then the plaintiff cannot eject them without partition .of his share and vice versa. As regards delivery of possession of the disputed plot the learned first appellate Court held that the respondents Nos. 2 and 3 came into possession of the suit land on 25‑7‑1949. So according to the first appellate Court the respondents Nos. 2 and 3 were in possession of the suit land since 25‑7‑1949 claiming to be the owners of the suit land and as such they could not be ejected from the same. The learned Additional District Judge further observed that "if it be held for a moment that Khasra No. 277 was not sold to them and they are in possession as trespassers, it will have to be seen whether the suit of the plaintiff is within time against defendant Nos. 2 and 3". The answer returned to this query was that the respondents having come into possession on 25‑7‑1949 the average possession for a period over 12 years completed before institution of the suit. These findings have been assailed before me by the learned counsel for the appellant.

4. Learned counsel for the appellant has argued that Khasra No. 277 having been sold to Ghulam Sarwar appellant by Abdullah one of the co‑owners through sale‑deed, dated 25‑7‑1949 Exh. P. 2 the plaintiff was entitled to succeed' on the basis of this deed as the sale‑deed Exh. D. 1 relied upon by the, respondents describes the land sold to them as situated in Khasra No.

177. Elaborating the submission, as argued that if there is a wrong description irk a Deed, then two courses are open for the parties to such a document i.e. either to have the description corrected, by getting the document of rectification executed and registered or to file a suit for rectification of document under section 31 of the Specific Relief Act. He submitted that if either of the two courses mentioned above is .not adopted then the document cannot be read in a different manner qua a third person and the so‑called wrong description cannot be read to the prejudice of a third party. Learned counsel for. the appellant further argued that even if it be held that the plaintiff was a co‑sharer by virtue of sale‑deed (Exh. P. 2) then in view of the rule laid down in Uttam Singh and others v. Chuhra and others (A I R 1926 Lah. 567 (2)) Makhan Lai v. Moti Ram (A I R 1928 Lah. 429) the plaintiff was entitled to a decree for joint possession. Lastly, he argued that there being neither any plea nor any issue on the question of adverse possession, the learned first appellate Court went out of the way in dismissing the suit by making out a case which was never pleaded by the respondents.

5. The factual position which emerges out from the record and. which was also not disputed before me is that both the sale deeds were executed on one and the same date i.e., 25th July, 1949. Sale deed Exh: P. 2 was executed by Muhammad Abdullah in favour of Ghulam Sarwar plaintiff whereas sale‑deed Exh. D. 1 was executed by Sher Muhammad and Muhammad Sharif in favour of respondents Nos. 2 and

3. In the sale deed Exh. P. 2 the land sold was described by giving Khasra No. 277 of Khata No. 132 situated in the area of village Arainwala. In Exh. D. 1 the land was described by giving its Khewat as Khewat No. 137 and Khasra No. 177 situated in the area of village Arainwala. A reference to Exh. D. 4 establishes that Muhammad Abdullah as well as Sher Muhammad and Muhammad Sharif were co‑sharers alongwith many others, in the suit land of Khewat No. 137 comprising of Khasras Nos. 257, 258, 260, 267, 268, 276 and

277. The Cultivation column further shows that amongst others Farzand Ali and Rang Ali sons of Nawab Shah were recorded as (Pehnai Qamil) and Ismail son of Muhammad Din was recorded as (ghair morosi). In the sale‑deed Exh. P. 2 it was mentioned that Farzand Ali etc. were (Pehnai Qamil) of the land in dispute but as the land had become Banjar Thoor and uncultivable, the said Farzand Ali etc. abandoned the possession 'of the land and because of that the land was under the posses sion of the executant. As against this Mst. Rani widow of Allah Ditta, Piran Ditta, Farzand Ali and Rang Ali the ' Pehnai Qamil " signed the sale deed Exh. D. 1 acknowledging the sale of said land and abandoning their rights in the said land. Even in Jamabandi of 1957‑58 Exh. P. 7 Farzand Ali etc. have been entered as Muafi daran. It is apparent from above that in both the deeds the property was described incorrectly. The plaintiff claimed that he was sold Khasra No. 277 and possession of the same was also delivered to him whereas the claim of respondents Nos; 2 and 3 was that they were in fact sold Khasra' No. 277 and they were also delivered possession of the same in pursuant to the sale by the Gher Maroosi tenants and that the " Muafi daran." also abandoned their rights in the land sold to them

6. Having gone through the evidence on record. I am of the con sidered view that the findings recorded by the learned first appellate Court merit no interference as the same are based on the facts established on record. Respondents produced Muhammad Ismail the recorded Gher Maroosi tenant in evidence. He in his statement admitted having delivered the possession of the land in dispute to the respondents. Farzand Ali appeared as P. W: 8 and stated in his examination‑in‑chief that he was in possession of the land in dispute as ( Pehnai Kadeem)" but he gaves the dis puted land to Abdullah by abandoning his possession and that the same was sold in his presence to the plaintiff. Through he stated that he was present at the time of the sale yet his signature or thumb impression was not obtained on the sale‑deed executed by Abdullah in favour of the plaintiff. He cannot be believed for another reason as well. In the cross-examination he stated that "we, the Maroosis receive half share of the sale price and the other half is kept by the owners and that . Abdullah on sale of the land in favour of the plaintiff gave Rs. 400 as half share of sale price, to him." This appears to be incorrect as the land under sale deed Exh. P. 2 was sold for Rs. 500 in all. He also admitted that' some area was sold vide Exh: D. 1 in favour of respondents Nos. 2 and 3 and that Muhammad Sharif etc. the owners were the sellers alongwith them. He further stated that the said area was on Pata with Muhammad Ismail and that the same is now lying vacant and is in possession of the respondents. He though asserted that the land sold was different from the land in dispute yet he admitted that besides the land of Exh. D. 1 they had e not sold any other land to the respondents. Farzand Ali P. W. 8 as such cannot be believed when he says that they had sold some land other than the one in dispute to the respondents especially in view of the fact that he joined the other "Muaffdars" in affixing thumb‑impression on sale‑deed Exh. D. 1 in acknowledgment of the sale and delivery of possession of the land.

7. The finding as regards delivery of possession was not assailed before me and in view of the evidence on record and the discussion above the view formed by the learned Additional District Judge that the respondent/defendants Nos. 2 and 3. were in possession of the‑suit land‑since 25‑7‑1949 as owners is affirmed. In Kollachina Mellayya v. Kannekanti Veeriah and others (31 I C 671) it was held that oral evidence is admissible under proviso 1 to section 92 of the Evidence Act to prove a mutual mistake made in the description of a place of land in a registered mortgage deed and that the Court can on reception of such evidence treat the instrument as rectified and proceed on that assumption though no suit for rectification of the instrument is brought under section 31 of the Specific Relief Act provided that the rights of third persons acquired in good faith and for value are not prejudiced thereby. Again in Rangasawami Aiyangar and another v. Sowri Aiyangar (29 I C 588) it was observed that where there is a mis-description of the property sold, the vendee can claim the rectification of the sale‑deed under section 31 (a) of the Specific Relief Act and that such a right can be used as a shield when possession is sought to be wrested from the party entitled to the rectification and the fact that he is a defendant does not disable him from setting up the plea which could have available him as plaintiff. It was also observed that the combined effect of section 92 clause (a) of the Evidence Act, 1872 and of section 31 of the Specific Relief Act, 1877 is that the defendant can resist a suit on the ground that what was sold to him was different from what the sale‑deed contained. It will be re‑called that' in the instant case Khewat number of the land was incorrectly mentioned in the sale‑deed Exh. P. 2 executed in favour of the plaintiff whereas the Khasra number was erroneously mentioned in the sale‑deed Exh. D. 1 executed in favour of respondents Nos. 2 and

3. The mistake as such appeared in both the sale deeds. The sellers in both the sale‑deed were co‑sharers in the Khewat but Muhammad Sharif. She Muhammad co‑sharers who sold land to the appellant also delivered possession to respondents Nos. 2 and 3 of the land sold and the respon dents have admittedly raised construction thereon. As against this co sharer named Muhammad Abdullah who sold the land to Ghulam Sarwar plaintiff did not deliver actual possession and as such on the basis of the sale‑deed Exh. P. 2 the plaintiff cannot seek eviction of the respondents from the land in dispute. The respondents purchased the land from co sharers who had not only sold the land falling to there share but had also delivered actual possession thereof and in doing that not only the Muafidars but also Ismail the lessee in possession were joined. In these circumstance the rights and title secured by the respondents cannot be defeated on account of wrong mention of Khasra number in the sale‑deed. ' Again on the basis of the sale made by another co‑sharer named Abdullah, the plaintiff cannot claim a joint decree for possession in respect of the land sold to the respondents Nos. 2 and 3 by the other co‑sharers as they sold the land of their share only. The plaintiff on the basis of the sale‑deed Exh. P. 2 may be having the right to obtain possession through partition out of the Khewat in question but in view of the circumstances of this case can neither seek eviction of the respondents nor is entitled to the grant of a decree for Joint possession of the land in dispute. The precedents noted above and referred to by the learned counsel for claiming decree for joint possession are not' relevant in the 'facts and circumstances of the instant case.

8. The nit result of the above discussion is that there is no merit in this second appeal and the same is hereby dismissed with costs. M Y. H. Appeal dismissed.