# Sartaj & Anr v. Ayub Khan & Ors

- **Citation:** (2019) 1 ILRA 209
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-02
- **Case number:** SECOND APPEAL No. 260 of 1992
- **Bench:** Harsh Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sartaj-anr-v-ayub-khan-ors-44439
- **Pages:** 11

## Headnote

A. Specific Relief Act, 1963 - Section 26 -
When instrument may be
rectified-
Rectification of an instrument may be
permitted when through fraud or a
'mutual mistake' of parties, a contract or
210 INDIAN LAW REPORTS ALLAHABAD SERIES
other instrumentin writing does not
express their real intention.

 (Para 21)
B. Specific Relief Act, 1963 - mutual
mistake as ground for rectification - If a
mistake is averred, as the ground for the
rectification of a contract, or instrument
in writing, the evidence must prove a
mistake common to all the parties.
 (Para21)

C. Plaintiffs purchased property from
defendants Sri Jodha and Smt. Jal Devi
by
registered
sale
deed.
Due
to
inadvertent clerical mistake in the sale
deed, 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 - Suit for
rectification of sale deed decreed by trial
court
-
In
appeal
plaintiff's
suit
dismissed - High Court held due to
mutual mistake at the time of framing
and reducing the sale deed in writing, in
place
of
vendors
names
of
their
predecessors Sri Govind and Smt. Ram
Devi were wrongly mentioned who were
admittedly not alive at that time. The
sale deed did not express real/correct
intention of contract between the parties
(Para 26)
Appeal allowed.

List of Cases Cited: -

## Text

1 All. Sartaj & Anr. Vs. Ayub Khan & Ors.
209
when the cases of vulnerable groups are
decided. The Court has to keep in mind
the ''problem solving approach' by
adopting therapeutic approaches to the
maximum extent the law permits rather
than
''just
deciding'
cases,
thereby
bridging the gap between law and life,
between law and justice. The notion of
access to justice is to be taken in a
broader sense. The objective is to render
justice to the needy and that means fair
solutions to the conflict thereby providing
real access to ''justice'."

37. In view of the clear enunciation
of law in the aforesaid judgments, we find
that the appellants are entitled for fair
compensation. The fairness requires that
"all those similarly situated are treated
similarly."

38. Accordingly, we find that all
the appellants in both the sets of first
appeals are entitled to compensation at
the rate of Rs.297/- per square yard. We
have mentioned in detail regarding the
other similar cases where compensation
has been awarded at the rate of Rs.297/-
per square yard even though there were
gaps between the different notifications,
but the villages are same. As discussed
above, Narendra (supra) lays emphasis
on fair compensation and on parity of
compensation in respect of similarly
situated land. A careful analysis of the
said judgment clearly shows that gaps of
a few years in the notifications have
been ignored by the Supreme Court and
this Court also in the subsequent
judgment in First Appeal No. 522 of
2009, Pradeep Kumar v. State of U.P.,
which has been affirmed by the Supreme
Court. We do not find any reason for not
awarding compensation at the same rate.
Accordingly, the orders of the Reference
Court dated 13th April, 1998, 18th
February, 2000, 23rd May, 2000, 29th
March, 2001 and 02nd April, 2002, which
are under challenge in the respective
appeals, are set aside. The appellants are
entitled to compensation of the land at the
rate of Rs.297/- per square yard along with
other statutory benefits under the law which
shall be calculated and paid to them
expeditiously within six months from today.

39. All the pending amendment and
substitution applications are allowed. In
those appeals where there is deficiency of
court fees, the benefit of this order will be
given only after making the deficiency
good. The other pending applications
accordingly stand disposed of.

40. All the appeals are accordingly
allowed. No order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.07.2019

BEFORE
THE HON'BLE HARSH KUMAR, J.

SECOND APPEAL No. 260 of 1992

Sartaj & Anr. ...Appellants
Versus
Ayub Khan & Ors. ...Respondents

Counsel for the Appellants:
Sri Vipin Saxena

Counsel for the Respondents:
Sri S.K. Verma, Sri A.R. Gupta, Sri K.C.
Pushkar Pandey, Sri Krishna Chandra Pushkar.

A. Specific Relief Act, 1963 - Section 26 -
When instrument may be
rectified-
Rectification of an instrument may be
permitted when through fraud or a
'mutual mistake' of parties, a contract or
210 INDIAN LAW REPORTS ALLAHABAD SERIES
other instrumentin writing does not
express their real intention.

 (Para 21)
B. Specific Relief Act, 1963 - mutual
mistake as ground for rectification - If a
mistake is averred, as the ground for the
rectification of a contract, or instrument
in writing, the evidence must prove a
mistake common to all the parties.
 (Para21)

C. Plaintiffs purchased property from
defendants Sri Jodha and Smt. Jal Devi
by
registered
sale
deed.
Due
to
inadvertent clerical mistake in the sale
deed, 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 - Suit for
rectification of sale deed decreed by trial
court
-
In
appeal
plaintiff's
suit
dismissed - High Court held due to
mutual mistake at the time of framing
and reducing the sale deed in writing, in
place
of
vendors
names
of
their
predecessors Sri Govind and Smt. Ram
Devi were wrongly mentioned who were
admittedly not alive at that time. The
sale deed did not express real/correct
intention of contract between the parties
(Para 26)
Appeal allowed.

List of Cases Cited: -
1. AIR 1957 Assam 49 'Santi Ranjan Das
Gupta Vs. Dasuram Mirzamal Firm',

2. AIR 1956 Orissa 83 'Bidyadhar Mohanty and
another Vs. Ananta Hota and another
distinguished (Para 16)

3. AIR 1921 Calcutta 730 'Bepin Krishna Ray
and others Vs. Jogeshwar Ray and others
relied upon (Para 15, 23)

4. AIR 1958 Rajasthan 276.M/s. Siddique and
Co. v. M/s. Utoomal and Assudamal Co.,
AIR1946 PC 42 relied (para 22)

5. Natarajan Asari Vs. Pichamuthu Asari, AIR
1972 (Madras) 192 (Para 24) (E-5)
(Delivered by Hon'ble Harsh Kumar, J.)

1. 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
1 All. Sartaj & Anr. Vs. Ayub Khan & Ors.
211
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 parties'
counsel and analyzing the evidence on
record, the trial court in its findings on issue
no.1 came to the conclusion that sale deed
dated 19.12.1985 was executed by defendant
nos.2 & 3 Sri Jodha and Smt. Jal Devi and
the sale deed is liable to be rectified as
prayed and passed (i) a decree for
rectification of sale deed dated 19.12.1985,
(ii) a decree for cancellation of sale deed
dated 18.3.1986 as well as (iii) a decree for
permanent injunction against defendants.
Feeling aggrieved the defendant no.1 Ayub
Khan preferred Civil Appeal No.92 of 1989
before District Judge, Etah which was
transferred for disposal to Additional Civil
Judge, Etah and was allowed by impugned
judgment and decree dismissing the suit of
plaintiffs by setting aside judgment and
decree passed by trial court. Hence the
plaintiffs have preferred this appeal.

6. Heard Sri Vipin Saxena, learned
counsel for appellants, Sri Anant Ram
212 INDIAN LAW REPORTS ALLAHABAD SERIES
Gupta, learned counsel for respondent
no.1 and perused the record.

7. Learned counsel for appellants
contended that lower appellate court acted
wrongly and illegally in not considering
the undisputed/admitted facts on record
and material issues involved in the case
and misappreciated the evidence on
irrelevant considerations; that it was not
only proved rather was admitted to the
defendant-respondent no.1 Ayub Khan
that Govind and Maiku were original
tenure holders of land in suit and after
death of Maiku his share in land in
dispute devolved on his wife Smt. Ganga
Devi @ Ram Devi and after death of
Govind his share in land in disputed
devolved on his son Sri Jodha defendantrespondent no.2 and on death of Smt.
Ganga Devi @ Ram Devi her share in
land in dispute devolved on her daughter
Smt. Jal Devi defendant-respondent no.3;
that after mutation of their names in
revenue records in respect of land in suit,
they executed disputed sale deed dated
19.12.1985
in
favour
of
plaintiffappellants;
that
it
is
admitted
to
defendant-respondent no.1 Ayub Khan
that Govind and Smt. Ganga Devi @ Ram
Devi had died about 10 & 12 years back
respectively and so the question of
execution of sale deed by them, the dead
persons neither arose nor was possible;
that lower appellate court has acted
wrongly in misguiding itself by relying on
the fact that stamp paper for execution of
impugned sale deed dated 19.12.1985 was
purchased in the name of Sri Govind; that
it was fully proved from the evidence on
record that identity of vendor was
mistaken by scribe on account of not
looking over mutation entry on right side
margin over copy of extract of Khatauni,
and so at the time of purchase of stamp
name of original tenure holder was
wrongly mentioned in place of name of
Sri Jodha and same mistake was repeated,
due to which the sale deed executed by
defendant-respondent nos.2 & 3 was also
wrongly scribed in the name of dead
persons as vendors, over which thumb
impressions were put by Sri Jodha and
Smt. Jal Devi defendant-respondent nos.2
& 3 respectively, but over their thumb
impressions (due to repetition of above
inadvertent mistake) names of Sri Govind
and Smt. Ram Devi were wrongly
mentioned; that both parties to the sale
deed dated 19.12.1985 were of real
intention that sale deed in respect of land
in dispute is being executed by Sri Jodha
and Smt. Jal Devi, defendant-respondent
nos.1 & 2 as vendors in favour of
plaintiffs-appellants
Sartaj
and
Sher
Zaman Khan as vendors; that lower
appellate
court
acted
wrongly
and
illegally in ignoring the admitted facts;
that judgment and decree passed by lower
appellate court are based on wrong,
illegal, arbitrary and perverse findings
which are based on surmises and
conjectures; that since impugned sale
deed
dated 6.3.1986 in
favour of
defendant Ayub Khan is not only in
respect of disputed plot Khasra No.843
but also in respect of other plot numbers
907 & 910, the appellants do not seek
cancellation of sale deed dated 6.3.1986
as a whole or in respect of land plot
nos.907 & 910.

8. Per contra, learned counsel for
defendant-respondent
Ayub
Khan
supported the impugned judgment and
decree and contended that Section 26 of
Specific
Relief
Act
provides
for
rectification of an instrument through
fraud or mutual mistake of parties and
since there is no allegation of fraud and
1 All. Sartaj & Anr. Vs. Ayub Khan & Ors.
213
no mistake of parties so the relief of
rectification may not be granted; that in
any case sale deed dated 6.3.1986
executed by defendant-respondent nos.2
& 3 in favour of defendant no.1 Ayub
Khan is in respect of their respective
shares in plot Khasra No.843, 907 & 910
so even if the sale deed in favour of
plaintiffs prevails upon rectification of
sale deed dated 19.12.1985, the sale deed
dated 6.3.1986 in favour of defendant
no.1 in respect of plot Khasra Nos.907 &
910 may not be cancelled.

9. Upon hearing parties learned
counsel and perusal of record as well as
lower court record, I find that facts of the
case are not disputed to the extent that plot
Khasra nos.843-A & B originally belonged
to Sri Govind and Smt. Ganga Devi @ Ram
Devi wife of Maiku which devolved on Sri
Jodha and Smt. Jal Devi defendantrespondent nos.2 & 3 being son of Sri
Govind and daughter of Smt. Ram Devi
respectively and after mutation of their
names in revenue records, they transferred
the same and executed a registered sale deed
dated 19.12.1985 in favour of plaintiffsappellants Sartaj and Sher Zaman Khan. It is
clear from the evidence on record that
without looking at mutation entry on right
side margin on copy of extract of Khatauni,
purchase of general stamps for sale deed was
wrongly made in the name of Govind
deceased in place of his son Sri Jodha and
consequently sale deed dated 19.12.1985 was
also scribed in the names of Sri Govind and
Smt. Ram Devi (dead persons) instead of Sri
Jodha and Smt. Jal Devi and over the thumb
impressions put by Sri Jodha and Smt. Jal
Devi over the sale deed, names of Sri Govind
and
Smt.
Ram
Devi
were
mentioned/transcribed by inadvertent and
mutual mistake of scribe and thereafter in
office of Sub-Registrar, when sale deed was
presented by Sri Jodha and Smt. Jal Devi for
registration, the same mistake was repeated
under the wrong impression by presuming
them to be Sri Govind and Smt. Ram Devi
respectively. The uncontroverted report of
handwriting and finger print expert duly
proved by P.W.-1 also states that disputed
thumb impressions over the impugned sale
deed dated 19.12.1985 are identical to
admitted thumb impressions of Smt. Jal Devi
and Sri Jodha, the defendant nos.2 & 3.

10. It is pertinent to mention that in
passing the impugned judgment and
decree, dismissing suit of plaintiff lower
appellate court has placed reliance on the
fact that stamp paper of the impugned sale
deed was also purchased in the name of
Sri Govind, without considering that it
was admitted to defendant that Sri Govind
had died long ago. and further failed to
consider that stamp could not have been
purchased in the name of dead person.
The defendant-respondent no.1 in para 1
of his written statement dated 19.3.1987 has
specifically stated that Sri Govind and Smt.
Ganga Devi @ Ram Devi were original
tenure holders and co-sharers to the extent
of equal shares in plot Khasra No.843-A &
843-B apart from which defendant no.3
Smt. Jal Devi had also 1/6th share in plot
Khasra Nos.907 & 910. In para 2 he has
stated that Govind died about 10 years back
and it is admitted that his son Sri Jodha is
his legal heir whose name has been mutated
in place of Sri Govind in revenue records.
In para 3 he has stated that Smt. Ganga
Devi died about 12 years back and Smt. Jal
Devi is her legal heir.

11. It is human nature that if a
mistake occurs at one place, it gets
repeated at subsequent places. The
evidence on record shows that since due
to above advertent mutual mistake and
214 INDIAN LAW REPORTS ALLAHABAD SERIES
mistaken identity of defendant-respondent
nos.2 & 3, name of Sri Govind was
mentioned at the time of purchase of
requisite stamp paper for execution of
impugned sale deed in place of Sri Jodha
and the same mistake was repeated again
and again. The above mistake could not
be noticed due to wrong assumption and
so
could
not
be
corrected
and
consequently in the impugned sale deed
executed by Sri Jodha and Smt. Jal Devi,
defendant-respondent nos.2 & 3 at every
place
and
even
over
their
thumb
impressions, names of dead persons Sri
Govind and Sri Ram Devi respectively
were wrongly mentioned, pretending the
execution of sale deed by Sri Govind and
Smt. Ram Devi, who were not alive on
the date.

12. It is undisputed that impugned sale
deed dated 19.12.1985 was executed by Sri
Jodha and Smt. Jal Devi and they presented
it for registration before Sub-Registrar and
accepted receipt of sale consideration and
execution of sale deed before him, but on
account repeatition of same mistake name of
Sri Govind and Smt. Ram Devi was
mentioned at every place instead of names of
Sri Jodha and Smt. Jal Devi. Since
admittedly Sri Govind and Smt. Jal Devi
were not alive at the time of execution of
impugned sale deed dated 19.12.1985, the
sale deed could not have been executed by
them under any stretch of imagination. There
is no case by defendant-respondent no.1, that
impugned sale deed dated 19.12.1985 was
obtained through impersonations. Moreover
there can be no intention of either party to
sale deed (vendor or vendee) to deliberately
get the names of dead persons mentioned as
vendors in place of defendant-respondent
nos.2 & 3. Trom above admitted facts and
evidence on record it is crystal clear that it
was a case of mutual clerical mistake on
account of which in the impugned sale deeds
executed by defendant-respondent nos.2 & 3
Sri Jodha and Smt. Jal Devi names of their
predecessors (who were not alive) were
wrongly mentioned as vendOrs. It also
clearly shows that real intentions of parties to
sale deed was to sell property in dispute by
Sri Jodha and Smt. Jal Devi in favour of
plaintiff-appellants.

13. It is pertinent to mention that Sri
Jodha, defendant-respondent no.2 was
examined as D.W.-3 wherein he admitted
thumb impressions of himself and of Smt.
Jal Devi on the disputed sale deed dated
19.12.1985
while
Smt.
Jal
Devi,
defendant-respondent no.3 was examined
by trial court on 21.8.1987 under
provisions of Order X Rule 2 of C.P.C.
wherein she stated that sale deed in
question was executed by her and Sri
Jodha and since they are illiterate, names
of their predecessors Sri Govind and Smt.
Ram Devi were mentioned in place of
their names due to mistake, without any
intention.

14. The lower appellate court has
referred to following case laws which
were relied by defendant-respondent
no.1, the appellant in First Appeal No.92
of 1989 (i) AIR 1957 Assam 49 'Santi
Ranjan
Das
Gupta
Vs.
Dasuram
Mirzamal Firm', (ii) AIR 1956 Orissa
83 'Bidyadhar Mohanty and another Vs.
Ananta Hota and another', (iii) AIR
1921 Calcutta 730 'Bepin Krishna Ray
and others Vs. Jogeshwar Ray and
others' and (iv) AIR 1958 Rajasthan
276.

15. In the case of Bepin Krishna Ray
and others Vs. Jogeshwar Ray and others
(supra) (relied by respondent no.1 before
lower appellate court) a decree for
1 All. Sartaj & Anr. Vs. Ayub Khan & Ors.
215
rectification was passed by trial court on
account of mistake in description of property
in the mortgage deed as well as decree also,
and the appeal filed by defendant was
dismissed with costs, by Division Bench of
High
Court
Calcutta
upholding
the
correctness of judgment and decree passed
by subordinate court. The above decision
fully supports the case of plaintiffs-appellants
and lower appellate court taken absolutely
wrong, illegal and perverse view in rejecting
plaintiffs-appellants
claim
by
placing
reliance on above case law. The findings of
lower appellate court in holding that there
was no mutual mistake are absolutely wrong,
illegal and perverse also.

16. In another case of Bidyadhar
Mohanty and another Vs. Ananta Hota
and another (supra), (relied by respondent
no.1 before lower appellate court), in a
suit for declaration of title and possession
it was held that plaintiff was not under an
obligation to seek rectification of the sale
deed and court itself can grant the relief
by way of putting him in possession. The
facts of above case are entirely different
from the case in hand and lower appellate
court acted wrongly and perversely in
allowing the first appeal of respondent by
placing reliance on this case, which has
no application to the case in hand.

17. Above decisions are prior in
time to the replacement of old Act by new
Specific Relief Act, 1963 and refers to
provision of Section 31 of old Act relating
to rectification of sale deed.

18. It is very unfortunate that
without considering the law laid down in
above decisions and their applicability to
the facts of this case, the lower appellate
court has taken a highly wrong and illegal
view, adverse to plaintiff-appellant. The
lower appellate court misguided itself by
mentioning of names of Sri Govind and
Smt. Ram Devi at every place as vendors
in holding that there was no mutual
mistake. Since it was proved rather
admitted to defendant-respondent no.1
that Sri Govind and Smt. Ram Devi were
not alive as on 19.12.1985 at the time of
execution of sale deed in favour of
plaintiffs-appellants, the lower appellate
court erred in not considering the
execution of sale deed by dead persons
was impossible and it was a clear case of
mutual mistake between the parties to sale
deed who were of clear and true intention
that plot Khasra No.843 was being sold
by Sri Jodha and Smt. Jal Devi defendantrespondent nos.2 & 3 in favour of
plaintiffs-appellants. Since Sri Govind
and Smt. Ram Devi were not alive and the
parties to sale-deed were illiterate, they
were not aware of the mistake committed
by scribe in mentioning names of dead
persons Sri Govind and Smt. Ram Devi as
vendors while sale deed was executed by
Sri Jodha and Smt. Jal Devi, defendantrespondent nos.2 & 3.

19. It is pertinent to mention that
Specific Relief Act, 1877 (hereinafter
referred to as 'old Act') was replaced by
Specific Relief Act, 1963 (hereinafter
referred to as 'new Act') and the provisions
with regard to rectification of instrument
which were contained in Section 31 of old
Specific Relief Act, 1877 were mentioned in
corresponding Section 26 of new Specific
Relief Act, 1963.

20. Before proceeding further it
would be appropriate to reproduce the
provisions of Section 31 of Specific
Relief Act, 1977 and corresponding
Section 26 of Specific Relief Act, 1963
regarding rectification of instrument:-
216 INDIAN LAW REPORTS ALLAHABAD SERIES

Section 31 of Specific Relief
Act, 1877:-

"31. When instrument may be
rectified- When, through fraud or a mutual
mistake of the parties, a contract, or other
instrument in writing, does not truly express
their
intention,
either
party
or
his
representative-in-interest, may institute a suit
to have the instrument rectified; that if the
Court finds it clearly proved that there has
been fraud or mistake in framing the
instrument, and ascertain the real intention of
the parties in executing the same, the Court
may, in its discretion, rectify the instrument so
as to express that intention, so far as this can
be done without prejudice to rights acquired
by third persons in good faith and for value.

Section 26 of Specific Relief
Act, 1963:-

"26. When instrument may be
rectified.-

(1) When, through fraud or a
mutual mistake of the parties, a contract
or other instrument in writing [not being
the articles of association of a company to
which the Companies Act, 1956 applies]
does not express their real intention, then-

(a)
either
party
or
his
representative-in-interest may institute a
suit to have the instrument rectified; or

(b) the plaintiff may, in any suit
in which any right arising under the
instrument is in issue, claim in his
pleading that the instrument be rectified;
or

(c) a defendant in any such suit
as is referred to in clause (b), may, in
addition to any other defence open to him,
ask for rectification of the instrument.

(2) If, in any suit in which a
contract or other instrument is sought to
be rectified under sub-section (1), the
court finds that the instrument, through
fraud or mistake, does not express the
real intention of the parties, the court
may, in its discretion, direct rectification
of the instrument so as to express that
intention, so far as this can be done
without prejudice to rights acquired by
third persons in good faith and for value.

(3) A contract in writing may
first be rectified, and then if the party
claiming rectification has so prayed in his
pleading and the court thinks fit, may be
specifically enforced.

(4) No relief for the rectification
of an instrument shall be granted to any
party under this section unless it has been
specifically claimed."

21. From perusal of above mentioned
provisions of Section 31 of old Act of 1877
and corresponding Section 26 of new Act of
1963 it is very much clear that scope of
rectification of instruments has been made
wider by the legislature under new Act and
rectification of an instrument may be
permitted when through fraud or a mutual
mistake of parties, a contract or other
instrument in writing does not express their
real intention. As far as mutual mistake is
concerned it has been interpreted as under:-

"If a mistake is averred, as the
ground for the rectification of a contract,
or instrument in writing, the evidence
must prove a mistake common to all the
parties, that is, -

(i) a common intention different
from the expressed intention, and

(ii)
a
common
mistaken
supposition that it is rightly expressed.

There is no mistake as to what
was agreed, but the mistake is in the
expression of the agreement in writing. If
there were a mistake in the agreement
itself, that would preclude a consensus ad
1 All. Sartaj & Anr. Vs. Ayub Khan & Ors.
217
idem, and no contract would be formed,
and there would be nothing to rectify the
instrument."

22. It was held by Division Bench of
Privy Council in the case of M/s.
Siddique and Co. v. M/s. Utoomal and
Assudamal Co., AIR1946 PC 42, that:-

"In a suit for rectification of a
contract or instrument, the plaintiff must
prove that it was through a mutual
mistake of the parties, or their agent, or
otherwise that the contract for instrument
in question did not truly express the
intention of the parties, and the court,
before it can rectify the contract or
instrument, must-

(1) find it clearly proved that
there has been mistake in framing the
instrument, and

(2) ascertain the real intention
of the parties in executing the instrument.
It is only when the court is satisfied of
these two elements, that it can, in the
exercise
of
its
discretion,
grant
rectification."

23. In the case of Bepin Krishna
Ray Vs. Jogeshwar Ray, AIR 1921
(Calcutta) 730, it was held by Division
Bench that the party seeking rectification
must clearly prove-

(1) there was a prior complete
agreement, which

(2) according to the common
intention was embodied in writing, but

(3) by reason of the mistake in
framing the writing,

(4) the writing did not express,
or give effect to, the agreement.

24. The Madras High Court in the
case of Natarajan Asari Vs. Pichamuthu
Asari, AIR 1972 (Madras) 192, that in a
suit rectification of an instrument-

"it
must
clearly
and
satisfactorily appear that-

(1) the
precise terms of the contract had been
orally agreed upon; and

(2)
the
writing
afterwards
signed failed to be, as it was intended, an
execution of such previous agreement,
but, on the contrary, expressed a different
contract.

The mistake may be either as to
the contents, or the effect, of the
instrument, but it must be a mistake of
both parties, in regard to the same matter.

Where the vendor was owner of
only western portion of a house and both
parties, vendor and vendee, intended that
to be transferred but by mistake the sale
deed recited Eastern portion on the
property sold, it was a case of mutual
mistake and suit for rectification was
maintainable."

25. In the case in hand there is no
whisper of fraud by either party to the
impugned sale deed dated 19.12.1985. It
is also noteworthy that where mistake is
proved as a fact, in a case of rectification,
the
plaintiffs
negligence
cannot
be
pleaded as a bar to relief.

26. It is crystal clear from the
undisputed/admitted facts and evidence
on record that there was a prior contract
between Sri Jodha and Smt. Jal Devi on
one side (first party) and Sri Sartaj and
Sher Jaman Khan on the other (second
party), according to which there was a
prior complete agreement with common
intention between the parties that land
plot
Khasra
No.843-A
and
843-B
belonging to Sri Jodha and Smt. Jal Devi,
218 INDIAN LAW REPORTS ALLAHABAD SERIES
the defendant-respondent nos.2 & 3,
(devolved upon them on death of their
father and mother Sri Govind and Smt.
Ram Devi, respectively), is to be sold by
them in favour of Sartaj and Sher Jaman
Khan through registered sale deed and in
furtherance of their common intention, the
impugned sale deed dated 19.12.1985 was
reduced into writing/executed by Sri
Jodha and Smt. Jal Devi in favour of
plaintiffs-appellants but due to mutual
mistake at the time of framing and
reducing the sale deed in writing, in place of
vendors Sri Jodha and Smt. Jal Devi, names
of their predecessors Sri Govind and Smt.
Ram
Devi
were
wrongly
mentioned.
Admittedly Sri Govind and Smt. Ram Devi
were not alive at that time, and the impugned
sale deed did not express real/correct
intention of contract which did take place
between the parties mentioned above.

27. In view of the discussions made
above, I find that the precise terms of
contract of sale had been orally agreed
between plaintiff-defendants no.2 & 3 but
due to mutual mistake as mentioned above
the sale deed which was reduced into writing
and registered did not express real intent of
parties to contract of instrument in question. I
am of the considered view that (i) the
Additional Civil Judge, lower appellate court
did not at all consider the material issues
involved in the case and based its judgment
on irrelevant considerations and findings
recorded by it are wrong, illegal and
perverse, (ii) the Additional Civil Judge,
lower appellate court committed illegality in
rejecting the admitted facts by misreading
and misappreciating the 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 dated 19.12.1985.

28. I am of the considered view that
lower appellate court has acted wrongly,
illegally, arbitrarily and perversely in
allowing the appeal in toto and dismissing
the suit of plaintiffs.

29. In view of the facts and
circumstances of the case and discussions
made above, the appeal is liable to be
allowed, the impugned judgment and decree
dated 30.9.1991 passed by lower appellate
court of Additional Civil Judge, Etah in
Appeal No.92 of 1989 are liable to be setaside and judgment and decree passed by
trial court are liable to be restored.

30. The appeal is accordingly allowed
with costs throughout. The 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) are set-aside and the
judgment and decree dated 17.7.1987 passed
by trial court i.e. VIth Additional Munsif,
Etah in Civil Suit No.467 of 1987 stands
restored with the modification that impugned
sale deed dated 6.3.1986 in favour of
defendant-respondent no.1 Ayub Khan as per
particulars given in the judgment and decree
dated 17.7.1989 stands cancelled only to the
extent of and in respect of plot Khasra
No.843 and stands valid in respect of other
plot nos.907 & 910.

31. Interim orders, if any, stand
vacated.

32. Let lower court record be sent
back to court below along with a copy of
this judgment for necessary compliance, if
any.
----------
1 All. Ramesh Chandra Sharma Vs. Ramji Das Agarwal
219
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.07.2019

BEFORE

THE HON'BLE AJAY BHANOT, J.

SECOND APPEAL No. 752 of 1999

Ramesh Chandra Sharma ...Appellant
Versus
Ramji Das Agarwal ...Respondent

Counsel for the Appellant:
Sri Ramji Das Agarwal.

Counsel for the Respondent:
Sri R.P. Tiwari, Sri Rishikesh Tripathi.

A. Second Appeal - Or. VI Rule 2 C.P.C.-
Admissibility of judgment rendered in
earlier suit between parties - Principle of
pleading is to set out the material facts,
which constitute claim and state cause
of action - Evidence not required to be
pleaded
-
Adversary
party
has
opportunity to refute the evidence of
other party - Documentary evidence of
earlier judgement to fortify landlordtenant relationship need not to be
pleaded - Trial court lawfully received
judgement as evidence - Lower appellate
court, having contrary view erred -
Substantial question of law answered
posit ively - Appeal allowed. (E-1)

(Delivered by Hon'ble Ajay Bhanot, J.)

1. This second appeal arises out of
judgment and decree dated 12.02.1999 in
Civil Appeal No. 179 of 1994 (Ramji Das
Agarwal Vs Ramesh Chandra Sharma)
rendered by the learned Additional
District Judge IV, Jhansi, which set aside
the judgment and decree dated 22.11.1994
entered by Additional Munsif 3rd, Jhansi.

2. The plaintiff-appellant brought
civil action for eviction, of the defendantrespondent, from the premises in dispute,
by instituting Original Suit No. 260 of
1989 (Ramesh Chandra Sharma Vs Ramji
Das Agarwal) before the III Additional
Munsif, Jhansi.

3. The case of the plaintiff-appellant,
as set out in the plaint, was that the
plaintiff is the landlord of the property in
dispute. The defendant-respondent is a
tenant in the disputed property. The rent
of the property which was payable by the
defendant tenant was at the rate of Rs.
300/- per month. A notice terminating the
tenancy was served upon the defendantrespondent by the plaintiff-appellant.

4. The defendant-respondent refuted
the contents of the plaint and filed a
written statement. He denied the landlord
tenant relationship, with the plaintiffappellant.

5. The learned trial court framed
various
issues
after
exchange
of
pleadings. The issue which remains
relevant to date, is issue no. 1 framed by
the learned trial court, "whether the
defendant is a tenant of the plaintiff in the
property in dispute, and was liable to pay
a rent of Rs. 300/- per month, in his
capacity as the tenant?" The learned trial
court considered the pleadings of the
parties, adverted to the evidences tendered
and returned a finding on the aforesaid
issue.

6. The learned trial court, noticed
the oral evidence of the plaintiff-appellant
PW-1 Ramesh Chand, wherein he called
reference
to
the
suit
between
the
defendant and the father of the plaintiff,
registered as Original Suit no. 738 of