RSA No.2739 of 1985 In the High Court for the States of Punjab and Haryana at Chandigarh Regular Second Appeal No.2739 of 1985 Date of decision: 21.10.2011 Sadhu Singh and others …Appellants Versus Jagdishwar Singh and others …Respondents Present: Mr Ishwar Lal, Advocate, for the appellants. Mr Sanjiv Pandit, Advocate, for the respondents. Jitendra Chauhan, J. This regular second appeal No.2739 of 1985 is directed against the judgment and decree dated 31.07.1985, passed in Civil appeal No.471 of 1983, whereby the appeal filed by Jagdishwar Singh and others, was accepted; the judgment and decree dismissing the suit of the plaintiffs respondents was set aside and the suit of the plaintiffs respondents was decreed as prayed for. Brief admitted facts of the case are that Milkha Singh, the predecessor in interest of defendants 1 to 3, sold a plot vide agreement to sell, dated 6.8.1956 to Vasdev Singh, the predecessor- in-interest of the plaintiffs. The boundaries of the disputed plot were specifically mentioned by Kilkha Singh in the agreement to sell and further the fact of the filling of foundations by Vasdev Singh was also recorded. While doing so, he had also delivered actual physical 1 RSA No.2739 of 1985 possession of the plot to the seller, Vasdev Singh. Pursuant of the agreement to sell, subsequently, Milkha Singh executed a sale deed dated 20.08.1956 in respect of the said plot. But the khasra nos.44/10 and 44/1/2 were somehow wrongly incorporated in the sale deed. The defendant No.2, i.e. the successor of Milkha Singh, the vendor, contested the suit on various grounds denying the allegations of the plaint. The following issues were framed from the pleadings of the parties: 1. Whether the plaintiffs are the owners in possession of the suit land? OPP 2. Whether the plaintiffs have locus standi to file the present suit? OPP 3. Whether the suit is within time? OPP 4. Whether the suit for declaration is not maintainable? OPD 5. Relief The learned trial court decided all the issues against the plaintiffs (respondents herein) and dismissed the suit. Jagdishwar Singh and others, the successors of Vasdev Singh, the vendee, filed Civil Appeal No.471 of 1983, which was allowed on 31.7.1985 by the Additional District Judge, Jalandhar and the suit for declaration that the plaintiffs and defendant no.4, Manohar Singh, are the owners in possession of the plot in dispute 2 RSA No.2739 of 1985 was passed with permanent injunction restraining the defendants 1 to 3 from interfering in the peaceful possession of the plaintiffs was decreed. Sadhu Singh, Jagir Singh, both sons and Parkash Kaur widow of Milkha Singh, the deceased vendor, filed in this regular second appeal, which was admitted on 19.09.1985. Learned counsel for the appellants has argued that the plot sold to Vasdev Singh (herein referred to as the vendee) by Milkha Singh (herein referred to as the vendor) bore khasra nos.44/10 and 44/1/2, but the vendee is in possession of khasra no.15/2, 6/2/2/4/1. The vendee is not in possession of the plot which infact was sold to him. So, he is not entitled to any relief. Learned counsel further argued that the plaintiff vendee should have applied for the rectification of the sale deed on account of miss-description of the property, which he has not done. He challenges the judgment and decree passed by the Ist Appellate Court. Learned counsels for the appellants vide CM No.325-C of 2007, proposed the following substantial question of law for adjudication by this Court. a) Whether findings of appellate Court in reversing the well reasoned judgment and decree of Civil Court Jalandhar, who dismissed the suit for permanent injunction filed by respondents/plaintiffs, is valid and illegal? 3 RSA No.2739 of 1985 b) Whether injunction can be granted against a person who is true owner in possession of the property in question? c) When plaintiffs/respondents failed to prove its possession over the property by any cogent evidence, whether the appellant Court out to have reversed the findings of lower court? d) Whether appellate Court findings are per verse and against the law and facts. On the other hand, the learned counsel for the respondent, the vendee, argued that no substantial question of law arises in this appeal. The only point to be determined in this appeal is as to whether the property sold in the sale deed Ex.P.1 dated 20.08.1956, is the same property, the boundaries of which have been correctly mentioned, the foundations up to plinth level were actually filled as acknowledged in the agreement to sell and the actual physical possession was handed over at the spot as recited in the sale deed by the vendor to the vendee. I have heard the learned counsel for the parties and have carefully gone through the documentary evidence on record with their able assistance. Section 20 of the Indian Contract Act provides as under:- “ Agreement void where both parties are under mistake as to the matter of fact.- Where both the parties to an 4 RSA No.2739 of 1985 agreement are under mistake as to a matter of fact essential to the agreement, the agreement is void.” It is clear that section 20 makes the agreement void, if there is mistake on the part of both the parties to the agreement. In this case, both the parties agreed regarding the same subject matter consisting of specific boundaries, as stated not only in the agreement to sell Ex.P1, but also in the Sale Deed Ex.P.3 there is not mistake. The disputed plot measure one kanal seven sirsahi. There is no mistake about the identity of the property as admittedly before the execution of the agreement to sell Ex.P.1, and Sale Deed is P.3, the foundations upto plinth level were dig and constructed, with the mutual consent of the vendor and the vendee. There is recital in the Sale Deed Ex.P.3 that actual physical possession of the plot in question had been delivered to the vendee at the spot. If, a document is proved and admitted, the recital thereof, are also to be admitted to be correct, unless and until contrary is shown that the recitals are wrong. There is no evidence available on record that the recital mentioned in Sale Deed Ex.P.3 is wrong. No doubt there is error with regard to Khasra number in Sale Deed Ex.P.3, but this itself will not make the Sale Deed invalid. The performance of the agreement to sell is complete from both the sides by execution and registration of the Sale Deed Ex.P.3, coupled with the delivery of possession of the plot. There is no allegation of fraud. The agreement to sell Ex.P.1, was affirmed by execution of Sale Deed 5 RSA No.2739 of 1985 Ex.P.3, the same is valid and binding transaction not only against both the parties, but also against their legal representatives. The recital of the documents Ex. P.1 and P.3, go to show that the boundaries of the plot in dispute are the same, the possession of which was delivered by the vendor at the spot to the vendee. The argument of the Ld. Counsel for the appellant that the vendee has not filed any suit for ratification of the Sale Deed, is not available to him as when the legal representative of the vendee i.e. plaintiffs came to know that there was some error of Khasra number, they immediately filed the present suit, because by that time the vendee or their legal representative had become actual owner of the plot by acquiescence. For the first time, Jagdiswar Singh and Ors, instituted the Civil Suit on 03.06.1981. None has come forward to claim possession of the plot till today. It was the duty of the vendor also to get the Khasra number corrected, because he has executed the Sale Deed Ex.P.3 of the plot giving particular dimensions and boundaries after receiving the sale consideration. There was no mistake about the identity of the plot subject matter of Sale Deed ExP.3. So, this argument of the Ld. Counsel for the Appellant is repelled. The principle that no injunction can be granted against a true owner is not applicable in this case as after the execution of Sale Deed Ex.P.3 regarding the plot in question, the defendants did not remain the owner of the property. The judgment of the first 6 RSA No.2739 of 1985 Appellate Court is well reasoned and a mere finding of fact can not be interfered with by this Court in Regular Second Appeal, however, gross and inexcusable it may be. The first Appellate Court has rightly decreed the suit of the plaintiffs. The judgment and decree of the first Appellate Court is, hereby, affirmed. No substantial question of law arises for determination in this case. The Sale Deed Ex.P.3, is dated 20.08.1956. The vendee through his legal representatives is in established possession of the plot in dispute. After lapse of 55 years, it would not be proper to dislocate the legal representatives of the vendee from the plot in question. The half century long established possession of the plaintiffs under a bona-fide belief that they are the actual owner in possession of the plot on the basis of the Sale Deed Ex.P.3 has ripened into ownership. At this stage their ownership and established possession can not be disturbed. For the reasons stated above, this Regular Second Appeal number 2739 of 1985 fails and is, hereby, dismissed. 21.10.2011 (JITENDRA CHAUHAN) S.K./atulsethi JUDGE Note : Whether to be referred to the reporter ? Yes / No 7