IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 11TH FEBRUARY 2009 / 22ND MAGHA 1930 SA.No. 31 of 1995() -------------------------- AS.65/1987 of D.C & SESSIONS COURT,TRIVANDRUM OS.15/1984 of PRL.MUNSIFF COURT,NEDUMANGAD .................... APPELLANT(S): ---------------------- 1. KAMALAKSHY AMMA THANKAMMA, NETTARA VEEDU, KARAKULATHU MURI, KARAKULAM VILLAGE 2. THANKAMMA OMANA AMMA, NETTARA VEEDU, KARAKULATHU MURI, KARAKULAM VILLAGE BY MR.PIRAPPANCODE V.S.SUDHIR RESPONDENTS: ----------------------- 1. KAMALAKSHY AMMA SARASWATHY AMMA, NETTARA VEEDU, KARAKULATHU MURI, KARAKULAM VILLAGE. 2. NARAYANA PILLAI, THANKAPPAN NAIR, NETTARA VEEDU, KARAKULATHU MURI, KARAKULAM VILLAGE. 3. NARAYANA PILLAI SEKHARAN NAIR, NETTARA VEEDU, KARAKULATHU MURI, KARAKULAM VILLAGE. (DIED RESP. IMPLEADED) 4. NARAYANA PILLAI, ACHUTHAN NAIR, NETTARA VEEDU, KARAKULATHU MURI, KARAKULAM VILLAGE. 5. SARASWATHI AMMA OMANA AMMA, NETTARA VEEDU, KARAKULATHU MURI, KARAKULAM VILLAGE. 6. ADDITIONAL 6TH RESPONDENT - S. MANJUSHA, KANDAMATH HOUSE, KODOOR, VENKODE P.O., NEDUMANGAD TALUK, THIRUVANANTHAPURAM - IS IMPLEADED AS THE LEGAL HEIR OF THE 3RD RESPONDENT AS PER ORDER DATED 23.1.2008 IN I.A.1184 OF 2007 . BY ADVOCATE MR.R.S.KALKURA FOR R1,R2,R4&R5 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS.P.JOSEPH, J ================== S.A.No. 31 of 1995 ================== Dated this the 11th day of February, 2008. J U D G M E N T The substantial question of law formulated for a decision is whether the courts below are justified in relying on a wrong description of the property in Ext.A1 to declare the respondents' possession and enjoyment of the schedule property and whether the courts below ought to have found that the property covered by Ext.A1 is not the schedule property. 2. Respondents initiated the litigation seeking declaration of their title and possession of the plaint scheduled property and for fixation of its eastern boundary. They claimed that the suit property which is described as seven cents in R.Sy.No. 2014/2 was acquired by the 1st respondent as per Ext.A1, sale deed No. 2904 dated 9.6.1964 executed by the 1st appellant. It is also claimed that the respondents have been in possession and enjoyment of the said property paying its revenue. Respondents alleged that the appellants destroyed the eastern boundary of the said property. That lead to the institution of the suit. Appellants admitted the execution of Ext.A1 by the 1st appellant but their contention is that S.A.No. 31 of 1995 -2- though a property as described in the schedule of Ext.A1 was purported to be sold to the 1st respondent, what was really intended by the parties is to convey another item of land which is situated on the immediate east of another 10 cents belonging to the 1st respondent situated on the south of the property referred to in Ext.A1. Appellants denied that they destroyed the physical boundary on the eastern side of the schedule property. Learned Munsiff found that in view of Ext.A1, the appellants cannot dispute the identity of the property sold, accepted the case of the respondents and granted decree. It was directed that Ext.C2, plan prepared by the Advocate Commissioner with the assistance of the Surveyor will form part of the decree. Appellants challenged that judgment and decree before the First Additional District Court Thiruvananthapuram. Learned Additional District Judge confirmed the judgment and decree. It is contended by the learned counsel for appellants that the view taken by the learned Munsiff that in view of Ext.A1 the defence of appellants in the suit is foreclosed as they could not adduce evidence in support of their contention that what was intended to be conveyed and actually conveyed is another plot of land, is erroneous. Learned counsel placed reliance on the decision in Balaprasad Asaram Charkha and others v. Asmabi w/o Fakruddin Bohri [A.I.R. 1954 NAGPUR S.A.No. 31 of 1995 -3- 328], Sateri Shiddappa Gadkari v. Rudrappa Shetteppa Bachenhatti [A.I.R. 1954 BOMBAY 463] and Rikhiram Pyarelal and another v. Ghasiram Dukalu [A.I.R. 1978 MADHYA PRADESH 189]. According to the learned counsel, evidence on record is sufficient to show that it is a case of mistaken identity of the property sold. Counsel for the respondents asserted that the concurrent findings of fact by the courts below required no interference. 3. It is seen from the judgment of the learned Munsiff that a view has been taken that in the light of Ext.A1, it is not open to the appellants to contend that what was sold as per Ext.A1 is not in the property scheduled in the plaint but another plot of land. That view stems from Section 92 of the Indian Evidence Act which excludes oral evidence against the terms of a contract, grant or other disposition of property or any matter required by law to be reduced to the form of a document. The contention that there was a common mistake regarding the description and boundaries in Ext.A1 and what was intended to be sold is another plot of land cannot be brought within the mischief of “terms of any such contract, grant or other disposition of property”. Oral evidence is admissible to prove that the expression of the contract was contrary to the intention of the parties due to a common mistake S.A.No. 31 of 1995 -4- and it is possible to prove by evidence that what was intended to be sold is not the property referred to in the document in question. Even in the absence of a suit for rectification of the instrument as contemplated under Section 31 of the Specific Relief Act, it is possible for the party concerned to raise such a plea either as plaintiff or in defence provided of course, rights of third parties who bonafide purchased the property for consideration without noticing the 'common mistake' is not involved. The decisions of the Nagpur, Bombay and Madhya Pradesh High Courts in the cases referred above, support that view. 4. Learned counsel for respondents contend that it is possible to raise such a contention only if at the time when such a defence is taken, a suit for rectification of the instrument under Section 31 of the Specific Relief Act is not barred by limitation. Learned counsel invited my attention to the observation in Sateri Shiddappa Gadkari v. Rudrappa Shetteppa Bachenhatti [A.I.R. 1954 BOMBAY 463]. 5. I am unable to accept that contention of the learned counsel. For, it is when the respondents attempted to enforce their right under Ext.A1 which according to the appellants contain a common mistake regarding identity of the property that the appellants are required to take up such plea. A plea in defence S.A.No. 31 of 1995 -5- cannot be said to be barred by limitation. Therefore, it is open to the appellants to show that what is conveyed by Ext.A1 is not the suit property, but, another plot of land. 6. Now, I have to refer to the evidence adduced by the parties. It is not disputed and proved by the respondents that the 1st appellant executed Ext.A1, for valid consideration. That, the schedule descriptions in Ext.A1 as it stands relate to the suit property is not very much in dispute. The contention of the appellants is that what they sold as per Ext.A1 is not the suit property but another item of land. This is clear from the suggestion made to PW1, husband of the 1st respondent in cross examination that though in Ext.A1 the property sold is described as situated on the south of the 10 cents, the property sold for convenient enjoyment (of the respondents) is on the east of the said 10 cents which also belonged to the first respondent. PW1 denied that suggestion. Records reveal that the Advocate Commissioner had identified the suit property based on the descriptions in Ext.A1. Ext.C2 is the plan prepared by Commissioner with the assistance of the Surveyor. In Ext.C2, the suit property (coming within the descriptions in Ext.A1) is shown as the red shaded portion. On its south, the 10 cents admittedly belonging to the respondents is marked in green (in Ext.C2). On the east of the said S.A.No. 31 of 1995 -6- green shaded portion is another 12.625 cents which also belongs to and is in the possession of the respondent. According to the appellants, the property conveyed as per Ext.A1 is the yellow shaded portion in Ext.C2. But concededly, the boundary description in Ext.A1 did not support that contention. 7. The suit property as described in the plaint schedule tallies with the descriptions in Ext.A1 (item No. 2) in respect of the 7 cents. The Advocate Commissioner found on measurement the extent of the red shaded portion as 7 cents. It is seen from Ext.A2 that consequent to the transfer as per Ext.A1, 1st respondent has been paying revenue for the 7 cents. What is now pressed into service by the appellants is Ext.B1, a gift deed of the year 1981 executed by the 1st appellant in favour of her daughter, 2nd appellant. Ext.B1, according to the appellants covered the suit property also. Learned counsel contends that Ext.B1 was executed before the institution of the suit and therefore, no oblique motives could be attributed to the execution of Ext.B1. But fact remained that Ext.B1 was executed in the year 1981 while Ext.A1 was executed by the 1st appellant in favour of the respondent in the year 1964. Therefore, whatever be the intention behind the execution of Ext.B1, that document cannot take precedence over Ext.A1. It is seen from Ext.C2 which again is not objected by the S.A.No. 31 of 1995 -7- appellants that the property comprised in R.Sy.No.2014/3 is situated on the further south of the green and yellow shaded portion. Ext.B1 is not sufficient to prove that what was conveyed as per Ext.A1 is not the suit property. In this situation, it is pertinent to note that the appellants did not produce their original documents nor requested the Advocate Commissioner to measure the properties based on such documents. 8. It is contended by the learned counsel for appellants that respondent did not produce the title deeds in respect of the green and yellow shaded portions marked in Ext.C2 and that non production of the documents was with ulterior motives. But, the suit is in respect of the disputed property which according to the respondents is covered by Ext.A1. The appellants did not, at any point of time require the respondents to produce their title deeds in respect of the green and yellow shaded portions. 9. It is then contended that the respondents have no possession of the disputed property, no evidence is produced by the respondent to prove their possession and that even as per report of the Advocate Commissioner (Ext. C1) and the evidence given by DW2, respondent can have no possession of the disputed property. DW2 claimed that since before 4 years of the institution of the suit, he has been running a brick kiln in the disputed S.A.No. 31 of 1995 -8- property. He obtained permission for running the brick kiln from the appellants. PW1 admitted that there is a brick kiln towards the eastern portion of the 7 cents and that portion of the brick kiln comes in the property admittedly belong to the appellants and situated on the immediate east of the suit property. According to PW1, since DW2 wanted to put up a brick kiln, he also granted permission. Evidence of DW2 is not sufficient to hold against the recitals in Ext.A1. It is recited in Ext.A1 that the 1st appellant handed over possession of the 7 cents referred to therein to the 1st respondent. It must be presumed that the respondents continue in possession of the 7 cents. DW2 claimed that he has document to show that he obtained permission from the appellants to put up the brick kiln but he did not produce that document. Exts.A1 and A2 show that the respondents are in possession of the suit property. When the appellants claimed as against the recitals in Ext.A1 that they continue to be in possession of the suit property, it was for them to substantiate that contention and show that the recital in Ext.A1 was not correct. Appellants have not adduced acceptable evidence in that respect. The statement made by the Advocate Commissioner in Ext.C1 about what he learned about possession cannot be accepted as the Commissioner is not expected to speak about possession. This is a matter to be decided by the court on S.A.No. 31 of 1995 -9- evidence, may be including the datas if any supplied by the Advocate Commissioner. 10. It is contended by the learned counsel for appellants that though PW1 stated that the green and yellow shaded portions and the red shaded portion in Ext.C2 lie contiguous, Exts.C1 states that the green and yellow shaded portions lie within specified boundaries. According to the learned counsel, that is an indication that the red shaded portion is not in the possession of the respondents. The Advocate Commissioner has stated in Ext.C1 that the first respondent has his residential building with other structures in the green shaded portion. A boundary between the red shaded (suit property) and the green shaded portion is not inconsistent with the claim of the respondents. 11. It is true that it was open to the appellants to raise a contention as made by them even without a separate suit for rectification of the instrument under Section 31 of the Specific Relief Act. But it is important to remember that in spite of the appellants claiming that there is a wrong description of the property in Ext.A1 no attempt was made by them to correct that mistake in Ext.A1 of the year 1964 in appropriate proceedings till they raised a contention to that effect in the suit filed in the year 1984. It is difficult to think that in spite of getting Ext.A1 in the S.A.No. 31 of 1995 -10- year 1964, respondents remained idle till 1984 without trying to get possession of the property covered by Ext.A1. Courts below concurrently found that what is conveyed as per Ext.A1 is the suit property marked in red shade in Ext.C2. It is also found that AB line is the boundary between the suit property marked in red shade in Ext.C2 and the property belonging to the appellants on its east. There is no reason to interfere with the concurrent findings entered by the courts below. 12. I make it clear that I am not not interfering with the observation made by the learned Munsiff regarding the right if any of the appellants to move against the 12.625 cents with whatever defence that may be available to the respondents. Appeal fails. It is dismissed. No Costs. THOMAS.P.JOSEPH, JUDGE rhs