# Suraj Prasad v. Smt. Vandana Pitariya

- **Citation:** (2022) 1 ILRA 980
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-29
- **Case number:** Regular Civil Appeal No. 5000248 of 2013
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suraj-prasad-v-smt-vandana-pitariya-47497
- **Pages:** 10

## Headnote

Specific Relief Act, 1963 - Section 26 -
Rectification of instrument - power of the
Court to rectify an instrument - Held -
rectification to a sale deed can be ordered
to express the real intention of parties
about identity of the property sold, but
incorrectly described in the sale deed due
to fraud or a mutual mistake - All that is to
be
seen
is
whether
the
instrument
embodies the true intention of parties; or
it does not - If it does not, it has to be
examined whether the error is the result
of fraud or a mutual mistake - In case, it is
caused
by
either
of
the
two,
the
instrument has to be rectified, though the
result of it may be an alternation in the
identity
of
the
property
sold
-
consequences
of
rectification
are
absolutely foreign to the exercise of the
power under Section 26(1) (Para 23, 25)

In the sale deed, executed by defendant, suit
property correctly described with reference to its
plot number, but village incorrectly mentioned
as Udaipur Maheva instead of Chhauchh -
plaintiff requested defendant to get mistake
rectified - defendant declined - plaintiff brought
suit seeking a rectification to the registered sale
deed - defendant admits plaintiff's case, in his
W.S. & in his testimony in the examination-inchief
 &
in
cross-examination,
 that
the
property, in respect whereof the sale deed,
subject matter of rectification, was executed, is
situate in Village Chhauchh & not in Village
Udaipur Maheva - by a mutual mistake village
came to be incorrectly described as Udaipur
Maheva instead
of Chhauchh
with other
particulars of the property correctly mentioned -
1 All. Suraj Prasad Vs. Smt. Vandana Pitariya
981
 Held - there is no change in the identity of the
property sold - change is only in the description
of it by virtue of its situation in the village,
where it is really located (Para 16, 24, 25 )

Dismissed. (E-5)

List of Cases cited:

## Text

980 INDIAN LAW REPORTS ALLAHABAD SERIES
by this Court. By virtue of Section 107
CPC the appellate Courts have the same
power as are conferred on Courts of
Original jurisdiction in respect of Suits
instituted therein. Order XLI Rule 33 CPC
provides that the appellate Court shall have
the power to pass any order which ought to
have been passed and to pass such further
other orders as the case may require. A
similar situation arose before the Division
Bench of this Court in Nasir Khan versus
Itwari & Ors.; AIR 1924 All 144 and the
Division Bench while allowing the Second
Appeal passed order which the first
appellate Court should have passed. The
Division Bench dismissed the appeal of the
Court below for default and permitted the
appellant
to
file
an
application
for
restoration of appeal which was to be
decided by the lower appellate Court on
merits.

22. Following the Division Bench
judgment of this Court in Nasir Khan
(supra), the present Second Appeal is
allowed, the judgment and decree of the
lower appellate Court is set aside and the
Regular Civil Appeal No. 5000248 of 2013
(Janki Prasad vs. Sanjay Kumar and
others) filed by the appellant is dismissed
in default. The appellant shall have the
liberty to file an application for restoration
of the said appeal before the lower
appellate Court which, if filed, shall be
decided by the lower appellate Court in
accordance with law.

22. With the aforesaid observations,
the Second Appeal is allowed.
----------
(2022)01ILR A980
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.11.2021

BEFORE
THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 280 of 2018

Suraj Prasad ...Appellant
Versus
Smt. Vandana Pitariya ...Respondents

Counsel for the Appellant:
Anuj Dayal

Counsel for the Respondents:
Vipul Gupta, Mohd. Aslam Khan

Specific Relief Act, 1963 - Section 26 -
Rectification of instrument - power of the
Court to rectify an instrument - Held -
rectification to a sale deed can be ordered
to express the real intention of parties
about identity of the property sold, but
incorrectly described in the sale deed due
to fraud or a mutual mistake - All that is to
be
seen
is
whether
the
instrument
embodies the true intention of parties; or
it does not - If it does not, it has to be
examined whether the error is the result
of fraud or a mutual mistake - In case, it is
caused
by
either
of
the
two,
the
instrument has to be rectified, though the
result of it may be an alternation in the
identity
of
the
property
sold
-
consequences
of
rectification
are
absolutely foreign to the exercise of the
power under Section 26(1) (Para 23, 25)

In the sale deed, executed by defendant, suit
property correctly described with reference to its
plot number, but village incorrectly mentioned
as Udaipur Maheva instead of Chhauchh -
plaintiff requested defendant to get mistake
rectified - defendant declined - plaintiff brought
suit seeking a rectification to the registered sale
deed - defendant admits plaintiff's case, in his
W.S. & in his testimony in the examination-inchief
 &
in
cross-examination,
 that
the
property, in respect whereof the sale deed,
subject matter of rectification, was executed, is
situate in Village Chhauchh & not in Village
Udaipur Maheva - by a mutual mistake village
came to be incorrectly described as Udaipur
Maheva instead
of Chhauchh
with other
particulars of the property correctly mentioned -
1 All. Suraj Prasad Vs. Smt. Vandana Pitariya
981
 Held - there is no change in the identity of the
property sold - change is only in the description
of it by virtue of its situation in the village,
where it is really located (Para 16, 24, 25 )

Dismissed. (E-5)

List of Cases cited:

1. St. of Karn. & anr. Vs K.K. Mohandas & ors.
(2007) 6 SCC 484

2. Subhadra & ors. Vs Thankam, (2010) 11 SCC
514
(Delivered by Hon'ble J.J. Munir, J.)

1. "What's in a name", is not always
true. In a given situation or transaction,
everything could revolve around a name. It
is about the name of the Village, where the
suit property is situate, but incorrectly
mentioned in the registered deed of
conveyance as another village, that has led
the respondent in this appeal, Smt.
Vandana Pitariya, to institute a suit for
rectification.

2. The facts giving rise to this
appeal
lie
in
a
narrow
compass.
According to Smt. Vandana Pitariya, the
sole respondent, and hereinafter referred
to as 'the plaintiff', an agreement to sell
dated
03.02.2004
was
entered
into
between her and the sole appellant, Suraj
Prasad, hereinafter referred to as 'the
defendant', with the latter covenanting to
transfer in favour of the plaintiff his 1/3rd
share in Gata No.39, admeasuring 1.502
hectares, situate in Village Chhauchh,
Pargana Kheri, District Kheri, for a total
sale consideration of Rs.3,09.000/-. The
agreement, that was duly admitted to
registration, carries an acknowledgment
that the defendant has received from the
plaintiff
out
of
the
agreed
sale
consideration, a sum of Rs.2,50,000/-.

3. It was further covenanted that
the balance sale consideration would be
payable at the time of execution and
registration of the sale deed. Nothing else
is material about the agreement, for
shortly after its execution, on 20th April,
2004, a sale deed was executed by the
defendant
in
the
plaintiff's
favour,
acknowledging receipt of the balance
consideration. The sale deed was duly
registered.

4. The plaintiff's case is that the suit
property lies on the border of an adjoining
Village Udaipur Maheva, Pargana and
District Kheri, a fact the plaintiff did not
know. In the sale deed, that was executed
by the defendant, the suit property was
correctly described with reference to its
plot number, but the village was incorrectly
mentioned as Udaipur Maheva instead of
Chhauchh. The plaintiff requested the
defendant to get the aforesaid mistake
rectified by presenting a mutually done
deed of rectification to the Sub-Registrar
concerned, but the defendant declined. It is
on this cause of action that the plaintiff
brought the suit seeking a rectification to
the registered sale deed dated 20.04.2004 in
terms of a decree of Court ordering the
defendant to execute a deed of rectification,
substituting for Village Udaipur Maheva,
Village Chhauchh. It was further prayed
that in case the defendant does not execute
the requisite deed of rectification, the Court
may execute it at the plaintiff's expense.

5. The defendant put in a written
statement, where in Paragraph No.5, it was
not denied that the suit property was situate
in Village Chhauchh, but it was denied that
the plaintiff has been delivered possession
over the suit property, as claimed. In the
additional
pleas,
the
defendant
has
982 INDIAN LAW REPORTS ALLAHABAD SERIES
acknowledged the fact that the terms of the
transaction were negotiated by Ratan Lal
on the defendant's behalf with the plaintiff's
husband and the entire formalities of paper
work and conveyancing was got done by
the plaintiff's husband and Ratan Lal
together.

6. It is also pleaded that at the time
of execution of the sale deed, the plaintiff
was obliged to pay the defendant a
balance of Rs.1,17,000/-. The plaintiff's
husband and Ratan Lal had instructed the
defendant to the effect that the duly
scribed sale deed was ready and the
defendant may proceed with its execution
and registration while the plaintiff's
husband and Ratan Lal would go and
fetch the balance sale consideration. The
defendant has also pleaded that reposing
faith in the words of the plaintiff's
husband and Ratan Lal, he executed the
sale deed, subject matter of the suit for
rectification, but the plaintiff's husband
declined to pay the balance. It is also
averred by the defendant that about one
month after the sale deed was executed,
Ratan Lal told the defendant that the
name of the Village had been incorrectly
mentioned, to which the defendant said
that the balance sale consideration may
be paid to him, subject to which alone he
would join the plaintiff to get the sale
deed mutually corrected and deliver
possession of the suit property. It is also
pleaded
in
Paragraph
No.14
that
possession over the suit property, situate
in Village Chhauchh is not with the
plaintiff. The defendant asserted that the
suit deserves to be dismissed with costs.

7. On the pleadings of parties, the
Trial Judge framed issues on 06.07.2016,
which
read
to
the
following
effect
(translated into English from Hindi):

"(i) Whether the plaintiff, on the basis
of pleas set out in the plaint, is entitled to
seek rectification of the sale deed dated
20.04.2004?

(ii) Whether the suit is undervalued?

(iii) Whether the court fee paid is
insufficient?

(iv) Whether the Court has jurisdiction
to try the suit?

(v) To what relief is the plaintiff
entitled?"

8. The record of the Trial Court shows
that Issues Nos.2 and 3 were decided
against the defendant on the day these were
framed, to wit, 06.07.2016. Thus, Issue
Nos.1, 4 and 5 came up for trial, at the
hearing of the suit. The learned Civil Judge
(Jr. Div.), Lakhimpur Kheri vide his
judgment and decree of April the 25th,
2017 dismissed the suit, leaving parties to
bear their own costs.

9. The plaintiff, aggrieved by the Trial
Court's decree, carried an appeal to the
District Judge, Lakhimpur Kheri, where the
appeal was numbered as Civil Appeal
No.31 of 2017. The appeal, on assignment,
came up for determination before the
Additional District Judge, Court No.3,
Lakhimpur Kheri on 07.07.2018, who
allowed the appeal, reversed the Trial Court
and decreed the suit for rectification. The
learned Additional District Judge did not
say anything about cost.

10. The defendant, aggrieved by the
appellate decree, has instituted the present
Second Appeal. The Appeal was admitted
to hearing on 15.02.2019 and the following
substantial
questions
of
law
were
formulated:

(i) Whether a suit for correction of a
sale-deed is maintainable to include a
1 All. Suraj Prasad Vs. Smt. Vandana Pitariya
983
different property which is not the subject
matter of sale-deed.

(ii) Whether a property which is not
the subject matter of an agreement to sell
and the sale deed executed in pursuance
thereof could be included in a sale deed on
the ground of seeking correction in the sale
deed.

(iii) Whether the first appellate Court
could reverse the finding without meeting
the reason and consideration of the
evidence dealt with by the trial court and
decree the suit for correction of sale-deed."

11. Heard Mr. Anuj Dayal, learned
Counsel for the defendant and Mr. Mohd.
Arif Khan, learned Senior Advocate
assisted by Mr. Mohd. Aslam Khan,
learned Counsel appearing for the plaintiff
and perused the records.

12. So far as the first substantial
question of law is concerned, it is
submitted by the learned Counsel for the
defendant that the subject matter of the sale
deed is a property located in Village
Udaipur
Maheva
whereas
through
rectification the plaintiff wants it to be
corrected
to
Village
Chhauchh.
The
submission
proceeds
that
with
the
difference in the two villages, the identity
of the suit property would be entirely
changed and that is beyond the scope of
rectification, envisaged under Section 26(1)
of the Specific Relief Act, 1963. What Mr.
Dayal says is that in the garb of
rectification, transaction relating to one
property cannot be substituted for another.
And, this precisely is what Substantial
Question of Law No. (i) is about.

13. On the other hand, Mr. Mohd.
Arif Khan, learned Senior Advocate
submits that the relief of rectification
proceeds on the basis that if in any
written contract or instrument, a fact, word
or recital has been mentioned or made
through fraud or a mutual mistake of
parties, which does not express their true
intention, it may be corrected at the suit of
a party to the instrument. Learned Senior
Counsel submits that if it is established that
in the description of the suit property set
out in the conveyance, an incorrect village
has been mentioned, it could be as much
the result of a fraud or a mutual mistake as
anything else. If a deed in writing while
describing the property subject matter of
conveyance shows it to be located in a
different village or place, other than the
place where it is actually situate, there is no
impediment to rectify the mistake, provided
it is established that it is the product of
fraud or a mutual mistake of parties that
does not express their true intention.

14. A perusal of the record, which
includes the pleadings and evidence, makes
it clear that execution of the agreement
followed by the sale deed subject matter of
rectification, is not disputed by the
defendant. Rather, the defendant has
acknowledged in Paragraph No.5 of the
written statement that the suit property is
situate in Village Chhauchh though he says
that possession thereof has not been
delivered to the plaintiff. Thus, the parties
are, on their pleadings, ad idem that the
subject matter of transaction is property
located in Village Chhauchh and not in
Village Udaipur Maheva.

15. In his examination-in-chief, that is
on affidavit, it is acknowledged by the
defendant that on the representation of
Ratan Lal and the plaintiff's husband, that
they would be back with the balance of the
sale consideration, he signed the sale deed.
984 INDIAN LAW REPORTS ALLAHABAD SERIES
The aforesaid testimony strengthens the
position that there is absolutely no quarrel
between parties about the factum of the
transaction
or
the
execution of
the
conveyance,
wherein
rectification
is
sought. In his cross-examination, the
defendant says that the property subject
matter of the agreement is situate in Village
Chhauchh, Pargana Kheri. It is also said
that the land in Village Chhauchh and
Village Udaipur Maheva are contiguous. It
is also said that an agreement about the
land in Village Chhauchh was executed in
favour of the plaintiff and registered. The
Lower Appellate Court has drawn an
inference from these facts, and in our
opinion rightly so, that the transaction
embodied in the sale deed in question
relates to land situate in Village Chhauch.
The Lower Appellate Court has also
noticed the stand of the defendant in his
cross-examination to the effect that Plot
No.39, whereof 1/3rd share has been sold,
has been acknowledged to be located in
Village Chhauchh. The relevant part of the
cross-examination of the defendant, who
testified as DW-1 on 07.04.2017, reads:

"दववाददत िूदम गाटा सां0 39 का 1/3 िाग ग्राम
िाउि का दववाद है। मैंने वन्दना दपताररर्ा के हक में
इस िूदम का पांजीकृत इकरार नामा दद0 3-2-2004
को दकर्ा था। इस एग्रीमेंट में कोई मेरा दववाद नहीां
है। इस इकरार नामा के बाद इसी िूदम का बैनामा
मैंने वन्दना दपताररर्ा के हक में दद0 20-4-2004 को
दकर्ा था। मुझे जानकारी नहीां थी ग्राम िाउि के
थथान पर ग्राम उदर्पुर महोवा दलख गर्ा था।"

16. On the aforesaid stand of the
defendant, it is evident that on facts the
defendant admits the plaintiff's case that the
property, in respect whereof the sale deed
subject
matter
of
rectification,
was
executed, is situate in Village Chhauchh
and that the transaction was about the
defendant's 1/3rd share in Gata No.39,
situate in Village Chhauchh; not in Village
Udaipur Maheva. The testimony of the
defendant further makes it evident that the
incorrect mention of the village as Udaipur
Maheva for Chhauchh was not within the
knowledge of the defendant. The stand of
the
defendant
in his
pleadings, his
testimony in the examination-in-chief and
his transparently clear stand in the crossexamination, places it beyond doubt that
mention of Village Udaipur Maheva for
Chhauchh, does not express the real
intention of parties about the identity of the
property, regarding which they entered into
the transaction embodied in the sale deed.
It is apparently, by a mutual mistake, that
the village came to be incorrectly described
as Udaipur Maheva instead of Chhauchh
with the other particulars of the property
correctly mentioned.

17. Section 26 of the Specific Relief
Act, 1963 reads:

"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 (1 of
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, any suit in which a contract or
other instrument is sought to be rectified
1 All. Suraj Prasad Vs. Smt. Vandana Pitariya
985
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:

Provided that where a party has not
claimed any such relief in his pleading, the
court shall, at any stage of the proceeding,
allow him to amend the pleading on such
terms as may be just for including such
claim."

18. Section 26(1) makes it clear that if
a contract or other instrument in writing
does not express the real intention of
parties, as a result of fraud or a mutual
mistake, the Court is empowered to direct a
rectification of the instrument.

19. Learned Counsel for the defendant
has placed reliance upon a decision of the
Supreme Court in State of Karnataka and
another v. K.K. Mohandas and others,
(2007) 6 SCC 484. The attention of the
Court has been drawn to Paragraph No.17
of the report in State of Karnataka v.
K.K. Mohandas, where it has been held:

"17. Under Section 26 of the Specific
Relief Act, an instrument or contract may
be rectified when through fraud or a mutual
mistake of the parties, a contract or
other instrument in writing does not
express their real intention. According to
Dr. Banerjee in his Tagore Law Lectures
on the "Law of Specific Relief", "if the
parties had deliberately left out something
from the written instrument, that cannot be
put in" by resort to the remedy of
rectification. Here, the parties have entered
into written contracts and admittedly no
term is incorporated therein regarding
enforcement of the ban on trade of toddy to
the public in the district of Dakshina
Kannada. Nor is there any case pleaded in
the plaint of any mutual mistake in the
matter of setting down the terms of the
contract. There is also no plea of fraud on
the part of the State in entering into the
contract. On the terms of the contract, the
plaintiffs had obtained the right to vend
arrack for Excise Year 1990-1991 on their
obligation to pay the bid amount in
monthly instalments. In the absence of any
foundation in the pleadings being laid by
the plaintiffs establishing a ground for the
grant of the relief of rectification, the mere
adding of a prayer by way of an
amendment could not be considered
sufficient to grant them the relief of
rectification."

20. This Court fails to see how the
principle laid down in State of Karnataka
v. K.K. Mohandas is ever so remotely
attracted to the facts here. In the case
before their Lordships of the Supreme
Court, there was no case pleaded in the
plaint about a mutual mistake relating to
the terms of the contract, that involved the
right to sell arrack for a particular excise
year, and obliged the plaintiff to pay the bid
amount in monthly installments. The
plaintiff wanted relief from payment of
installments on the ground that contrary to
986 INDIAN LAW REPORTS ALLAHABAD SERIES
a representation of the Minister and a
Government Order, sale of toddy to the
public in District of Dakshin Kannad was
permitted. It was, in that connection, held
by their Lordships that there was no term
incorporated in the contract, that the parties
entered into about the right to sell arrack,
banning trade or sale of toddy to the public.
Apparently, it was not a case where the real
intention
of
parties
had
not
been
incorporated in the contract. The right to
seek rectification was based on something
extraneous to the contract, like the
Minister's speech or the Government Order.
Thus, the principle in State of Karnataka
v. K.K. Mohandas is not attracted to the
defendant's case at all. Even otherwise, the
question that the defendant has mooted is
about the power of the Court to rectify an
instrument, where the identity of the
property would change in consequence of
the rectification and the impermissibility of
it. That is a question, that was not in the
slightest
consideration
before
their
Lordships of the Supreme Court in State of
Karnataka v. K.K. Mohandas.

21. The other decision relied upon by
the learned Counsel for the defendant is
Subhadra and others v. Thankam, (2010)
11 SCC 514. In Subhadra, it was held:

"15. The description of the entire
property has been given in Ext. B-1. In
other words, 5 cents and complete
description of Ext. B-1 was the subjectmatter of the sale in terms of Ext. A-1. This
aspect of the case stands fully clarified and
Ext. A-1 has been completely clarified with
certainty
by
the
report
of
the
Commissioner, which was relied upon by
the trial court. In face of the matters being
beyond ambiguity, there is no occasion for
this Court to interfere with this finding of
fact.

16. Furthermore, the question of
rectification in terms of Section 26 of the
Act would, thus, not arise. The provisions
of Section 26 of the Act would be attracted
in limited cases. The provisions of this
section do not have a general application.
These provisions can be attracted in the
cases only where the ingredients stated in
the section are satisfied. The relief of
rectification can be claimed where it is
through fraud or a mutual mistake of the
parties that real intention of the parties is
not expressed in relation to an instrument.
Even then, the party claiming will have to
make specific pleadings and claim an issue
in that behalf.

18. We have already stated that the
provisions of Section 26 of the Act are not
attracted in the facts and circumstances of
the present case. On the contrary, the
respondent had specifically taken up the
plea that Exts. A-1 and B-1 relate to sale of
specific property and there was no
ambiguity or mutual mistake. The courts
have returned a concurrent finding in
favour of the respondent and we see no
reason to disturb the said finding. The High
Court has specifically noticed that perusal
of Ext. B-1 shows that the eastern boundary
is the property owned by one Kuttappan
Master and the northern boundary is shown
as rest of the property as old one. There is
no controversy in the appreciation of
evidence and the courts have recorded the
concurrent finding on the basis of evidence,
documentary and oral, adduced before
them and have taken a view which is
permissible and in accordance with law.
The contention of law raised before us on
behalf of the appellant, in any case, has no
merit as aforestated."

22. As would be evident, the facts on
which the decision in Subhadra turns
show that there was no ambiguity at all
1 All. Suraj Prasad Vs. Smt. Vandana Pitariya
987
found by the Courts below about the
description and identity of the property,
subject matter of sale. It is in the context of
the aforesaid facts that their Lordships of
the Supreme Court have held that it is not a
case where rectification can be granted by
the Court in exercise of powers under
Section 26 of the Specific Relief Act, 1963.
In the opinion of this Court, the said
decision also has no bearing on the
substantial question of law raised here,
given the facts found by the Lower
Appellate Court on a very reasonable view
of the evidence.

23. Much emphasis has been laid by
the learned Counsel for the defendant still
on the fact that through rectification, a
different property cannot be made the
subject matter of the transaction embodied
in the sale deed. This Court is afraid that
the submission to the above effect on
behalf of the defendant is not tenable. The
power of rectification under Section 26(1)
of the Specific Relief Act bears no
reference
to
the
consequences
of
rectification of the mistake in an instrument
or
contract.
The
consequences
of
rectification are absolutely foreign to the
exercise of the power under Section 26(1).
All that is to be seen is whether the
instrument embodies the true intention of
parties; or it does not. It it does not, it has
to be examined whether the error is the
result of fraud or a mutual mistake. In case,
it is caused by either of the two, the
instrument has to be rectified, though the
result of it may be an alternation in the
identity of the property sold.

24. Here, this Court must remark that
in fact, there is no change in the identity of
the property sold. The change is only in the
description of it by virtue of its situation in
the village, where it is really located.
This Court must also remark that the case
of a mutual mistake is virtually admitted to
the defendant, and it is disheartening to
note that this litigation should have
travelled to this Court, engaging some
seventeen years of the parties' life in strife.

25. Substantial Question of Law No.
(i) is answered in the affirmative in the
terms that rectification to a sale deed can be
ordered to express the real intention of
parties about identity of the property sold,
but incorrectly described in the sale deed
due to fraud or a mutual mistake.

26. Substantial Question of Law No.
(ii) is substantially the same as the first
question, and, therefore, need not be
answered.

27. So far as Substantial Question No.
(iii) is concerned, learned Counsel for the
defendant submits that the Trial Court had
recorded cogent reasons to dismiss the suit,
which have not been dealt with, assigning
reasons by the Lower Appellate Court. The
submission is that the judgment of the
Lower Appellate Court is, therefore, in
violation of the mandatory requirement of
Order XLI Rule 31 CPC.

28. A perusal of the judgment passed
by the Trial Court shows that the relevant
findings have been recorded while deciding
Issue No. 1. The findings go to the effect
that the plaintiff's case has not been
admitted by the defendant, and, therefore,
burden lies on the plaintiff to prove his
case. The Trial Court has said that the
plaintiff has relied upon the agreement,
which also describes the property as land
situate in Village Udaipur Maheva. It has
been inferred, therefore, that the antecedent
988 INDIAN LAW REPORTS ALLAHABAD SERIES
agreement does not lend support to the
plaintiff's case that what was intended to be
sold was land located in Village Chhauchh.
It has then been remarked by the Trial
Court that in order to prove his case, the
plaintiff has examined PW-1, Ved Prakash
Pitariya, who has said in his crossexamination that he does not know the
boundaries of the suit property, but could
tell about the same on reading the sale
deed. The Trial Court has also noted that in
his cross-examination PW-1 has said that
he had not visited the suit property in the
past 2 - 3 years. The Trial Court has drawn
an inference from this stand of the
plaintiff's witness that he is not familiar
with the suit property.

29. It has also been remarked by the
Trial Court that the plaintiff, who is the
purchaser of the suit property, has not
deposed in Court as a witness. By contrast,
the defendant, who is the seller, has denied
the plaintiff's case. The Trial Court has also
said that the plaintiff has not examined the
Scribe of the sale deed as a witness or any
of the witnesses of the sale deed, to wit,
Anil Sengar and Suresh. It has been also
said by the Trial Court that evidence of the
witnesses of the sale deed is crucial as they
could throw light on the true intention of
parties while executing the instrument. The
Trial Court seems to have been much
swayed by the fact that the witnesses or the
Scribe of the sale deed or the plaintiff have
not been examined.

30. By contrast, the Lower Appellate
Court has carefully looked into the
pleadings to find that the fact about the
subject matter of sale, being the land in
Village Chhauchh, has not been denied by
the defendant in Paragraph No.5 of the
written statement. The Lower Appellate
Court has then carefully considered the
stand of the defendant in his crossexamination to rightly infer that he admits
the plaintiff's case about the transaction
being one related to the sale of a 1/3rd
share of Gata No.39, situate in Village
Chhauchh. The Lower Appellate Court has
relied more upon the admission of the
defendant, which, without doubt, is the best
piece of evidence. The Trial Court's
findings have been carefully considered
and reversed. In doing so, the Lower
Appellate Court has said that it deserves
mention that PW-1 has said in his evidence
that he does not know about the boundaries
of the suit property, and that he has not
visited it in the past 2 - 3 years. The Lower
Appellate
Court
has
remarked
that
possibly, the Trial Court has disbelieved
this witness going by this part of his
evidence.

31. It has then been observed by the
Lower Appellate Court that it deserves
mention that PW-1 is the plaintiff's
husband. If this witness says that he cannot
recollect the boundaries of the suit property
or has not visited the site in the past 2 - 3
years, the factum of execution of the
agreement or the sale deed cannot be
doubted on this ground alone. The reason
is, according to the Lower Appellate Court,
that the fact of execution of the sale deed is
admitted to the defendant as well as the
agreement. Therefore, it was not necessary
to examine the witnesses of the sale deed.
The Lower Appellate Court has then noted
the admission of the defendant that the
plaintiff's husband, PW-1 and Ratan Lal
assured him that they would be back with
the balance sale consideration, trusting
which he signed the sale deed. The said fact
has been relied upon by the Lower
Appellate Court to infer a clear admission
about the execution of the sale deed. The
cross-examination of DW-1, who is none
1 All. Saumya Tiwari Vs. State of U.P. & Ors.
989
other than the defendant, has been carefully
looked into to infer that the suit property is
situate in Village Chhauchh and that it
adjoins Village Udaipur Maheva. He has
admitted executing the agreement and the
sale deed in respect of land of Village
Chhauchh, to the extent of his 1/3rd share
in Gata No.39 of Village Chhauchh.

32. With so much of careful analysis
of the evidence done and findings recorded,
supported by reasons, to reverse the Trial
Court, it cannot be said that the Lower
Appellate Court has reversed the Trial
Court without meeting the reasons or
considering the evidence dealt with by the
Trial Court. As such, Substantial Question
of Law No. (iii) is answered in the
affirmative, subject to the conclusions
hereinabove.

33. In the result, the appeal fails and
is dismissed.

34. The impugned judgment and
decree passed by the Lower Appellate
Court is affirmed. The plaintiff shall be
entitled to his costs in this Court and in
both the Courts below.

35. Let a decree be drawn up,
accordingly.
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(2022)01ILR A989
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ- C No. 20885 of 2021

Saumya Tiwari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Udai Narain Singh, Sri Lal Dev

Counsel for the Respondents:
C.S.C., Sri Rohit Pandey, Ms. Shambhavi Tiwari,
Shri Paras Nath Rai(Central Government S.C.)

A. Constitution of India - Article 21 & 42 -
United Nation Declaration on Human
Rights - Article 25(2) - Maternity Benefit
Act, 1961 - Maternity leave - Motherhood
- Right of reproductive choice of a woman
- Dignified environment for motherhood
in pre or post natal period
- It's
significance - Held, motherhood is the
most sublime expression of Nature's
longing for life. Dignity of motherhood is
the highest manifestation of refinement in
the human race - The rights of the
petitioner
to
reproductive
choices,
marriage, procreation and motherhood are
entrenched as fundamental rights by the
law laid down by constitutional courts.
(Para 67 and 73)
B. UP Technical Universities Act, 2000 -
Absence of the provisions in respect of
granting the maternity leave or any
relaxation for expectant and new mothers
-
Validity
challenged
-
Held,
the
respondent University has neglected to
frame Regulations or create appropriate
legal instruments to provide for maternity
benefits to expectant mothers and new
mothers - By failing to frame Regulations
or appropriate legal instruments for grant
of maternity benefits and by declining to
grant such benefits to the petitioner, the
University has violated the fundamental
rights of the petitioner as guaranteed
under Articles 14, 15(3) and 21 of the
Constitution of India and as expounded in
the law laid down by Constitutional
Courts. (Para 18, 77 and 86)
C. Constitution of India - Part III -
Fundamental
Rights
-
Scope
-
Constitutional law defines the substance