IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE FOURTH DAY OF AUGUST TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.84 of 2010 Between: Eruventi Channaiah .. Appellant AND Boinpallyi Venkateshwar Rao & another .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.84 of 2010 JUDGMENT: Heard Sri R. Raghunandan, learned counsel for the appellant and Sri D. Jagan Mohan Reddy, learned counsel for the respondent/plaintiff. 2. The Second Appeal is coming for admission against the judgment and decree in A.S.No.20 of 2008, on the file of the Senior Civil Judge’s Court, Nagarkurnool, dated 06.10.2009, by which the judgment and decree in O.S.No.81 of 1998, dated 23.06.2008, on the file of Junior Civil Judge’s Court, Nagarkurnool, were confirmed. 3. The parties are referred to herein as they are arrayed before the trial Court. 4. The factual background leading to the Second Appeal is that the plaintiff claimed to have purchased two plots of 171 square yards and 112 square yards respectively from the first defendant out of the land of Ac. 0.14 guntas in Sy.No.479 of Telkapally owned by the first defendant for valuable consideration under registered Sale Deeds, dated 08.07.1993, specifying the boundaries for both the plots. The second defendant and another were stated to be the attestors of the Sale Deeds and the first defendant and his son later filed caveats before the Courts at Nagarkurnool, the copies of which were received by the plaintiff. When the plaintiff verified his sale deeds on receiving the copies of the caveats, he found that the sale deeds mentioned the survey number of the plots as Sy.No.459 owned by the second defendant and not Sy.No.479 owned by the first defendant. The plaintiff immediately got issued notices to the first defendant on noticing the mistake calling for execution of a rectification deed. Instead of complying, the first defendant was stated to have applied for permission to Grampanchayat, Telkapally, for construction of a house over the plots of the plaintiff and, therefore, the plaintiff filed a suit for declaration of his purchasing the plots in Sy.No.479 and not in Sy.No.459 and also for a mandatory injunction for directing the first defendant to execute the necessary rectification deed. He also sought for a consequential permanent injunction and costs. 5. The second defendant did not contest the suit, but the first defendant while admitting his ownership of Sy.No.479 denied alienating any plots in that survey number to the plaintiff. He contended the registered sale deeds, dated 08.07.1993, to be bogus, fictitious and without consideration while admitting the filing of the caveats. The correctness of the Court fee paid and the bar of limitation were also pleaded in evidence while requesting for the dismissal of the suit with costs. 6. On such pleadings, the trial Court framed the following issues for trial: “i. Whether the plaintiff is entitled to declare that he purchased the suit land from the defendant No.1 through registered sale deed Nos.1984/93 and 1985/93, dated 8-7-1993 and that the plaintiff has not purchased the suit land out of Sy.No.459 of Telkapally village? ii. Whether the mandatory injunction shall be passed against the first defendant directing him to execute rectification deed for the defect made in sale deed Nos.1984/93 and 1985/93, dated 8-7- 1993 with regard to suit land, while ratifying that the suit and not sold in Sy.No.459 of Telkapally village and Mandal? iii. Whether the plaintiff is entitled for permanent injunction against the defendant No.1 his men etc., from interfering with the suit land? iv. To what relief?” 7. During trial, P.Ws.1 to 3 and D.Ws.1 and 2 were examined and Exs.A-1 to A-16 and B-1 to B-3 were marked. 8. The trial Court rendered its judgment opining that the evidence of P.W.1 corroborated by the attestors of the sale deeds as P.Ws.2 and 3 was about purchase of plots by the plaintiff from the first defendant in Sy.No.479 in which the first defendant owned Ac. 0.14 guntas. The trial Court referred to the admissions of the first defendant as D.W.1 that the signatures contained in Exs.A-1 and A-2-Sale Deeds were his and that he also sold another plot in Sy.No.479 in favour of M. Narsimha. The trial Court also found that the admission of signatures in the absence of any necessary legal action by the first defendant leads to the presumption of due execution of Exs.A-1 and A-2 and the ownership of the land by the first defendant is also proved by Ex.A-3- copy of the registered Partition Deed in favour of the first defendant. The trial Court further referred to Exs.A-4 and A-5 under which the first defendant made similar sales of plots and with reference to the documentary evidence, the trial Court concluded that the case is one of misdescription in the sale deeds while the plaintiff purchased the suit plots from the first defendant in Sy.No.479 and not in Sy.No.459. The trial Court also, with reference to Section 26 of the Specific Relief Act, 1963, concluded the suit to be tenable and with reference to Article 113 of the Limitation Act, 1963, the suit to be within time. The trial Court opined that the knowledge of the plaintiff about the mistake having commenced only after receipt of notices in the caveat petitions-Exs.A-6 and A-7, the limitation starts from that date, making the suit within time. Consequently, the suit was decreed without costs. 9. In the first appeal, the appellate Court rendered the impugned judgment framing points for consideration about the entitlement of the plaintiff for declaration, mandatory injunction and permanent injunction. The Appellate Court, again making a reference to the pleadings and evidence of the parties, had concluded with reference to the admission of the first defendant of his signatures on Exs.A-1 and A-2 that the burden shifted to the first defendant on such admission to prove under what circumstances he subscribed to the documents for which the first defendant did not adduce any evidence. The Appellate Court also considered delivery of possession to have been probablised by the recitals of Exs.A-1 and A-2 and opined further that mere wrong mention of a survey number will not take away the plaintiff’s rights in the suit properties as the boundaries specified in Exs.A-1 and A-2 should prevail. The Appellate Court also agreed with the trial Court in concluding that limitation has to be computed only from the date of knowledge of the mistake and not since earlier. The suit as framed was considered maintainable and hence, the first Appellate Court dismissed the appeal with costs. 10. The unsuccessful first defendant is before this Court with this Second Appeal contending that the oral and documentary evidence was not properly appreciated and the fact that he never sold Sy.No.479 under Exs.A-1 and A-2 to the plaintiff was not properly appreciated. The first defendant pleaded herein that substantial questions of law arise about the suit being hit by Article 113 of the Limitation Act, 1963, and also by Section 26 of the Specific Relief Act, 1963. It was pleaded that the plaintiff not having taken any steps to bring the legal representatives of the second defendant on record notwithstanding his death during the pendency of the suit cannot succeed. 11. Coming to the objection about any effect of not bringing the legal representatives of the deceased second defendant on record who was claimed to have died during the pendency of the suit, it is to be noted that the reliefs sought for were primarily and exclusively against the first defendant alone either in respect of the declaration of purchase or in respect of the direction for execution of a registered rectification deed or concerning consequential permanent injunction. The second defendant was obviously impleaded only due to his being the owner of Sy.No.459 which survey number was wrongly mentioned in the sale deeds in favour of the plaintiff. When neither the plaintiff nor the first defendant claimed any interest for the second defendant in Sy.No.479 and when the reliefs sought for in the suit and adjudicated by the Courts below were purely in respect of Sy.No.479 admittedly owned by the first defendant, the absence of any steps for the second defendant who was claimed to have died during the pendency of the suit would not have been fatal to the suit. 12. The findings of fact of the Courts below concerning the mention of Sy.No.459 instead of Sy.No.479 in Exs.A-1 and A-2 are that the land sold by the first defendant to the plaintiff in two plots was in Sy.No.479 owned by the first defendant and not in Sy.No.459. The conclusions of fact are about an obvious misdescription in the sale deeds and the claims of the first defendant about not admitting Exs.A-1 and A- 2 were negatived in view of his admission about his signatures in the sale deeds in the absence of any explanation for them. If so, even if there was no fraud, there was an obvious mistake in description and Sri Jagan Mohan Reddy, learned counsel for the first respondent invited attention to Section 17 of the Limitation Act, 1963, whereunder, in a suit for relief from the consequences of fraud or mistake, the period of limitation will not begin to run until the plaintiff discovered the fraud or mistake or would have discovered such fraud or mistake with reasonable diligence. While the existence of any reasonable diligence for the plaintiff in not discovering the fraud or mistake before receiving notices in the caveats was neither the subject of any specific issue nor the subject of any specific conclusion, both the Courts below have obviously agreed with the plaintiff that he discovered the fraud or mistake only on receiving the notices of the caveats. If it were so, on reading Article 113 together with Section 17 of the Limitation Act, 1963, the suit cannot be considered to be barred by time. 13. Even concerning the bar of the suit by Section 26 of the Specific Relief Act, 1963, sought to be raised by the first defendant, Section 26 of the Specific Relief Act, 1963, referring to fraud or mutual mistake of the parties leading to a contract in expressing the real intention of the parties permitted the plaintiff in any suit to claim rectification of the instrument in the pleading in the suit in which any right arising under the instrument is in issue. The Court was given the discretion to direct rectification if such circumstances were to be proved without prejudice to the rights acquired by third persons in good faith and for value and in the present case, no rights of third parties were stated to have been involved in any manner. If so, any technicalities in the format of the suit may not go to the root of the sustainability of the claim and no substantial questions of law appear to arise in the Second Appeal on the conclusions of fact arrived at by the trial Court and the first Appellate Court. Consequently, the Second Appeal has to fail. 14. Accordingly, the Second Appeal is dismissed at the stage of admission, without costs. ______________________ G. BHAVANI PRASAD, J Date: 4th August, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.84 of 2010 Date: 4th August, 2011 KL