# SHEODHYAN SINGH AND OTHERS v. MUSAMMAT SANICH,ARA KUER AND OTHERS - **Citation:** [1962] 2 S.C.R. 753 - **Court:** Supreme Court of India - **Decided:** 1962 - **Bench:** P.B. Ga.Jendragadkar, K.N. WoNcHoo - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sheodhyan-singh-and-others-v-musammat-sanich-ara-kuer-and-others-2292 - **Pages:** 9 ## Headnote Pinal decru-Sale certifica.te-Properly 80/d fully descrilied but wrong n·umbor given-If mere mi8description. In the final decree for sale in a mortgage suit and in the sale certificate the number of the property in dispute was given as No. 160 instead of No. 1060 which wa• the real number although it was otherwise fully described w that its identity could be clearly established. The appellants contended that a decree could not be granted with m;pect to this plot. The High Court found that No. 160 in the final decree and the sale certificate was a mistake for No. I 060 and that there was no plot No. 160, in the particular khata. Jhe High Court further held that this was a case of misdcscription and not a case of disputed identity. With regard to an_oiher p!ot in dis~ pute subrogation was claimed on behalf of the second mortgagees alleging that the first mortgoge was redeemed by the second mortgagees although their mortgage deed did not n1ention anything about the earlier mortgage nor was any money left to redeem it. Held, (i) that tho High Court was right in holding that this was a case of misdescription and that as the identity of the property was well established the contention of the appellants must fail. Thakur Barhma v.Jibon Manva.re, ( 1913) L.R. 41 I.A. 38, Gossain Das Kundu v. MrithunjlJ// Agran Sardar, (1913) 18 C,L. J. 541, followed. Rambhadra Naidu v. Kadiruja Sami Na.icker, (1921) L.R. 48 I. A. 155, distinguished. (ii) In the absence of any agreement regarding subrogation in the second mortgage the question of subrogation could not be raised. ## Text 2 S.C.R. SUPREME COURT REPORTS 753 SHEODHYAN SINGH AND OTHERS v. MUSAMMAT SANICH,ARA KUER AND OTHERS (P.B. GA.JENDRAGADKAR AND K.N. WoNcHoo, J.J.) Pinal decru-Sale certifica.te-Properly 80/d fully descrilied but wrong n·umbor given-If mere mi8description. In the final decree for sale in a mortgage suit and in the sale certificate the number of the property in dispute was given as No. 160 instead of No. 1060 which wa• the real number although it was otherwise fully described w that its identity could be clearly established. The appellants contended that a decree could not be granted with m;pect to this plot. The High Court found that No. 160 in the final decree and the sale certificate was a mistake for No. I 060 and that there was no plot No. 160, in the particular khata. Jhe High Court further held that this was a case of misdcscription and not a case of disputed identity. With regard to an_oiher p!ot in dis~ pute subrogation was claimed on behalf of the second mortgagees alleging that the first mortgoge was redeemed by the second mortgagees although their mortgage deed did not n1ention anything about the earlier mortgage nor was any money left to redeem it. Held, (i) that tho High Court was right in holding that this was a case of misdescription and that as the identity of the property was well established the contention of the appellants must fail. Thakur Barhma v.Jibon Manva.re, ( 1913) L.R. 41 I.A. 38, Gossain Das Kundu v. MrithunjlJ// Agran Sardar, (1913) 18 C,L. J. 541, followed. Rambhadra Naidu v. Kadiruja Sami Na.icker, (1921) L.R. 48 I. A. 155, distinguished. (ii) In the absence of any agreement regarding subrogation in the second mortgage the question of subrogation could not be raised. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 497 of 57. Appeal from the Judgment and decree dated October IO, 1955, of the Patna High Court, in Appeal from Original Decree No. 483 of Hl47. L.K. Jha, and P.J(. Chntteijee, fort.he Appellants. A. V. Viswanatha Sastri and R. C. Pm8ad, for resp0ndents Nos. l to 7. 1961 Ma11, 4. 1961 She~dhya1T1 Singh v. Afu1Gnwuit. 8•.nWkGrlt Jfotr 1r anrhoo .! . 754 SUPREME COURT REPORTS [1962] 1961. May, 4. was delivered by The Judgment of the Court WANCHOO, .T.-This iH an appeal on a certificate gm11ted by the Patna High Court. The respondents brought a suit with respect to fon plots of land a1ul nl;i,imerl a d0claration tha~ the property belongcrl to Owm and prayorl for posKession of the plots by njeetmPnt of the defendants-appellants and for mesne profits. Beside3 the appellants, there was another set of d!'fendants to the suit from whom the respondents purchased the property. The respondents' case was that the appellants had taken a loan from the other defondants on a mortgage bond on the basis .of which those defendant~ instituted a suit in l!l3:!. Thi~ suit was decreed against the appellants and thert'aHnr the other defendants got the mortgaged property sold by auction in execution and purchased it themselves in 1936. Thereafter the other defendants entered into possession of the property, delivery of which was made to them by court. The other defendants remained in possession of the property till they sold it to the respondents in 1943. Thereafter the respondents came into poBBeseion of the property. The appellants however began to create trouble from 1942. After the sale to the respondents, the appellants created further trouble which led to proceedings in a criminal court under s. 144 of the Code of Criminal Procedure and the appellants were forbidden from going to the property in dispute. Later on, the appellants were bound down under s. 107 of the Code of Criminal Procedure to keep the peace. In 1945 there was a murder in connection with this property on account of which some of the appellants were tried by the court of session but were acquitted. There were further troubles over the crop of theee plots in 1945. Eventually after their acquittal by the court of session, the appellants took poBSession of the prol!erty by forcibly dispossessing the res:ponden~. 2 s.c.R. SUPREME COURT RHPORTS 755 Consequently the respondents filed the suit out of which this appeal has arisen in July 1946. The suit was resisted by the defendants on a large number of grounds with which we are however not concerned now. The only points urged before us by learned counsel for the appellants is with respect to three plots out of the ten which were the subject matter of the suit. The trial court accepted the case put forward on behalf of the respondents and decreed the suit for possession and ordered that mesne profits would be determined subsequently. There was then un appeal by the present appellants to the High Court. The High Court dismissed the appeal except as to one plot with respect to which the suit of respondents was dismissed. As the decree was of vuriancc the High Court granted a certificate ; and thtit is how the present appeal has come up before us. We have already pointed out that the learned counsel for the appellants has confined his &rguments before us with respect only to three plots, namely, 1060, 427 and 1128, out of the ten plots which were in dispute in the courts below. His c;iontention is that in any case the courts below were wrong in granting possession to the respondents with res:pect to these three plots. We propose therefore to deal with the contentions raised in respect of these three plots only. Re. Plot. No. 1060. The contention on behalf of the appellants with respect to this plot is that it was neither included in the final decree for sale in favour of the respondents' predecessors-in-interest nor in the sale certificate. Therefore, it was not open to the court8 below to grant a decree in favour of the respondents with respect to this plot. The final decree contains ten plots. It gives the Tauzi Number the Khasra Number, the Thana Number, the Survey Number, the area aμd the bolinda,ries 1961 8hetgor and which were in his onjoym2nt. But at the date of the mortgage certain paunai lancls were not in the enjoyment of the mortgagor. When however the Hale proceedings were taken in execution the person who was in possession at the date of the mortgage of some of the pannai lands was dead and in the final decree as well as in the execution proceedings all pannai lands belonging to the mortgagor and in his enjoyment were ordered to be sold. The mortgagor objected that some of the pannai lands were outside the mortgage and were not liable to sale. This objection was disallowed and all the pannai lands were sold and were included in the sale certificate and possession thereof was delivered to the purchasers. In these cirnumstances the Privy Council held that it was not possible to go back to the mortgage deed to find out what had been sold. It was also held that no suit could lie in the circumstances in view of s. 4 7 of the Code of Civil Procedure. In the present appeal, the learned counsel for the respondents does not ask us to go beyond the sale certificate and the final decree for sale; his contention is that there is a mere misdescription of the plot number in the two documents and that the identity of the plot sold is clear from the circumstances which we have already set out above. He relies on Thakur Bar;nha v. Jiban Ram Marwari (2). In that case what had happened was that the judgment·debtor owned a mahal in which ten annas share was mortgaged while the remainder was free from encumbrances. A creditor of his attached and put up for sale six annas (2) ( 1913) L.R. 41 I.A. 38. 1961 -- Sheodhyan Singh v. Musammat Sanichara K uer Wanchoo J. •• 1961 S!teodhyan Si nyh v. Mu•am.mat Sanichara K uer Wanchoo J. 758 8UPREME COUBT REPORTS [1962] share· out of the mortgaged share. The property attaclH'd was sold. When the ,·met.ion purchasers applied for the sale certificate they alleged that a mistake had been made in the schedule of the property to be sold in that the word "not" had been omitted from t.he description of tho six aumts share and that the property should have been described as being six annas not mortgaged. This prnycl' of theirs was allowed by the executing court and the appeal to the High Court failed.. On appeal to the Privy Council, it was held that in a judicial sale only the property attached can be sold and that property is conclusively described in and by the schedule to which the attachment refers, namely, the six annas share subject to an existing-mortgage. The Privy Council therefore allowed the appeal and observed that a case of misdeseription could be treated as a niere irregularity, but the case before them was a case of identity and not of misdescription. It was pointed out that a property fully identified in the schedule may be in some respects misdescribed, which would be a different case. Thus the effect of this decision is that where there is no doubt as to the identity and there is only misdescription that could be treated as a mere irregularity. Another case on which reliance has been placed on behalf of the respondents is Gossain Das K'undu v. Mrittunjoy Agnan Sardar(3). In that case the land sold was descriued by boundaries and area; but the area seems to have been incorrect. It was held to be a case of misdescription of the area and the boundaries were held to prevail. We are of opinion that the present case is analogous to a case of misdescription. As already pointed out the area, the khata number and the bounda.ries all refer to plot No. 1060 and what has happened is that in writing the plot number, one zero hes been missed and 1060 has become 160. It is also important to remember that there is no plot bearing No. 160, in khata No. 97. (3) (1913) 18 C. L. J. 541. 2 .s.c.R. SUPREME COURT REPORTS 759 In these circumstances we are of opinion that the High Court was right in holding that this is a case of misdescription only and that the identity of the property sold is well established namely, that it is plot No. 1060. The matter may have been different if no boundaries h