Sheodhyan Singh & Ors Vs. Musammat
Santchara Kuer & Ors  INSC 212 (4 May 1961)
CITATION: 1963 AIR 1879 1962 SCR (2) 753
Final decree-Sale certificate-Property sold
fully described but wrong number given-If mere mis-description.
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 was the real number although it was otherwise
fully described so that its identity could be clearly established. The
appellants contended that a decree could not be granted with respect to this
plot. The High Court found that No. 160 in the final decree and the sale
certificate was a mistake for No. IC60 and that there was no plot No. 160, in
the particular khata.
The High Court further held that this was a
case of mis-description and not a case of disputed identity. With regard to
another plot in dispute subrogation was claimed on behalf of the second
mortgagees alleging that the first mortgage was redeemed by the second
mortgagees although their mortgage deed did not mention anything about the
earlier mortgage nor was any money left to redeem it.
Held. (i) that the 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 Marware, ( 1913) L.R.
41 I.A, 38, Gossain Das Kundu v. Mrithujoy Agran Sarda , (1913) 18 C.L. J. 541,
followed.' Rambhadra Naidu v. Kadiruja Sami Naicker, (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 10, 1955, of the Patna High Court, in Appeal from Original Decree No. 483
L.K. Jha and P.K. Chatterjee, for the
A. V. Viswanatha Sastri and R. C. Prasad, for
respondents Nos. 1 to 7.
754 1961. May 4. The Judgment of the Court
was delivered by WANCHOO, J.This is an appeal on a certificate granted by the
Patna High Court: The respondents brought a suit with respect to ten plots of
land and claimed a declaration that the property belonged to them and prayed
for possession of the plots by ejectment of the defendants appellants and for
mesne profits, Besides the appellants, there was another set of' defendants
" to. the suit from whom the respondents purchased the property. The
respondents' case was that the appellant had taken a loan from the other
defendants on a mortgage bond on the basis of which, those; defendants
instituted a suit in 1932. This suit was decreed against the appellants , and,
thereafter 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 sold it to the respondents in 1943.
Thereafter the respondents came into possession 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 these plots in 1945 Eventually after theiracqittal by the court of
session, the appellants took possession of the property by forcibly
dispossessing the respondents.
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 an appeal by the present appellant 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 variance
the High Court granted a certificate and that 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 arguments 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 contention is that in any case the
courts below were wrong in granting possession to the respondents with respect
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 courts below to 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, tile area and the boundaries 756 of each plot. Among the ten
plots mentioned in the final decree, there is a plot No. 160, but no plot
1060. In the sale certificate also the same
ten plots are mentioned. The sale certificate contains the khata number, the
plot number, the area and the boundaries of each plot.
There also we find No. 160 but no No. 1060.
The High Court has held that No. 160 in the final decree and in the sale
certificate is a mistake for 1060. It has further held that this is a case of
misdescription and not a case of disputed identity, for in this case IL-?he
identity of the plot included in the final decree and sold through the sale
certificate is not uncertain. It has pointed out that the khata number, the
area and the boundaries that are given in the final decree and in the sale certificate
correspond with the khata number, the area and the boundaries of plot No.
1060. It has also pointed out that in the
writ of delivery of possession to the respondents' predecessors as well as in
the sale deed in favour of the respondents the correct plot (namely, 1060) has
been mentioned. Further the High Court has also pointed out that there is no
plot bearing No. 160 in khata No. 97. Therefore, as the khata number, the area
and the boundaries given in the final decree and in the sale certificate tally
with No. 1060, the identity is clearly established and there has only been a
misdescription of the plot in the final decree as well as in the sale
certificate by the omission of one zero from the plot number.
In this connection, learned counsel for the
appellants relies on Rambhadra Naidu v. Kadiriyasami Naicker (1). In that case
it was held that "certificates of sale are documents of title which ought
not to be lightly regarded or loosely construed." It was further held that
"where upon a sale under a mortgage decree the purchaser has been given a
sale certificate which plainly includes certain property and has put into
possession, it is not open to the Court in a subsequent suit by (1) (1921) L.
R. 48 I.A. 155.
757 the mortgagor's representative to hold by
reference, back to the mortgage deed that the property in question was not sold
under the decree." The facts however in that case were very different from
the facts in the present case. There what had happened was that the mortgage
included the pannai lands which belonged to the mortgagor and which were in his
enjoyment. But at the date of the mortgage certain pannai lands were not in the
enjoyment of the mortgagor.
When however the sale 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 circumstances 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. 47 of the Code of Civil
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
Thakar Barmha 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 anns (2) (1913) L.R. 41 I.A. 38.
758 share out of the mortgaged share. The
property attached was sold. When the auction 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 the
description of the six annas share and that the property should have been
described as being six annas not mortgaged. This prayer of theirs was allowed
by the executing court rind 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 misdescription could be treated as a mere irregularity,
but the case before them was a cue 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 Kundu v. Mrittunjoy
Agnan Sardar(3). In that case the land sold was described 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 boundaries all refer to plot No. 1060 and what has
happened is that in writing the plot number, one zero has 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.
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 ,;old is well established namely,
that it is plot No. 1060.' The matter may have been different if no boundaries
had been given in the final decree for sale as well as in the sale certificate
and only the plot number was mentioned. But where we have both the boundaries
and the plot number and the circumstances are as in this case, the mistake in
the plot number must be treated as a mere misdescription which does not affect
the identity of the property sold. The contention of the appellants therefore
with respect to this plot must fail.
Re. Plot No. 427 This plot was originally
mortgaged with two other plots in 1920 with the other defendants for Rs. 400/.
Later, the mortgagor usufructuarily mortgaged this plot with a number of others
with Ramzan Mian and another in 1927 for Rs.
2,500/This mortgage deed does not show that
any money was left with the mortgagees to redeem the plots mortgaged with the
other defendants. But it appears that soon after the mortgage in favour of
Ramzan Mian, the mortgage in favour of the other defendants was redeemed by
payment of the mortgage amount due to them through Nizamud-din and
Shams-ud-din. It is said that this payment was made on behalf of Ramzan Mian
and therefore Ramzan Mian and another were subrogated in place of the other
defendants so far as this plot was concerned. Further it is urged that Ramzan
Mian and another were not made parties to the suit of 1932 and that there is
nothing to show that when the suit was brought for sale of the ten plots in
1932 the mortgage made in favour of Ramzan Mian and another in 1927 had been
redeemed and therefore the purchasers in the execution proceedings in that
suit' could only get the property subject to the mortgage of Ramzan Mian and
Another and could not 760 dispossess the appellants, if they were in possession
through mortgagees Ramzan Mian and another. In reply, the learned counsel for
the respondents contends that so far as the appellant-, are concerned, their
right and title in this plot have completely gone and it is not for the
appellants to claim any right of subrogation in respect of the mortgage which
was redeemed by Ramzan Mian and another. Further it is urged that there is
nothing to show on this record that in 1932 when the suit was brought the
mortgage of Ramzan Mian and another was subsisting and that the appellants were
in possession on behalf of Ramzan Mian and another.
Therefore the appellants could not put
forward any claim, for possession of plot No. 427 and if Ramzan Mian and
another had any claim they can look after their own interest, even if they were
not made parties to the suit of 1932. The result would be that their rights in
their mortgage would be subsisting and they can enforce them, if they pan under
the law, against the respondents; but the appellants can-not put forward their claim
to defeat the respondents' case.
We are of opinion that there is no force in
these contentions raised on behalf of the Appellants. In the first place, it is
difficult to understand how the appellants can raise the question of
subrogation on behalf of Ramzan Man and another. In the second place, Ramzan
Mian and another could only be subrogated to the rights of the mortgagees of
1920 whose mortgage they had redeemed if there was an agreement in their
mortgage that they would be so subrogated. We might have inferred such
agreement if any money had been left with Ramzan Mian and another to redeem.
the earlier mortgage; but the mortgage deed
of 1927 in their favour says nothing about the earlier mortgage at all. In
these circumstances there can be no question of subrogationeven if it was open
to the appellants to raise that point before, us. on, 761 behalf of Ramzan Mian
As to the contention that Ramzan Mian and
another were not made parties to the mortgage suit and therefore their rights are
not affected and if the appellants held the land from Ramzan Mian and another
they would still be entitled to possession and could not be dispossessed, it is
enough to say that this argument could be raised if it were established that
the mortgage of 1927 was still subsisting when the suit was brought in 1932. On
that point however there is no evidence and we do not know whether the mortgage
of Ramzan Mian and another was subsisting in 1932. Further the finding of the
High Court is that whatever evidence is on the record shows that at any rate in
1935 the appellants were in possession of plot No. 427. In these circumstances
we cannot hold positively that the mortgage of Ramzan Mian and another was
subsisting in 1932 when the suit was brought and that the appellants were in
possession of this plot on behalf of Ramzan Mian and another. The appellants
therefore cannot resist the claim of the respondents for possession on the
ground that they are holding this plot on behalf of Ramzan Mian and another
without any proof of this on the record. The appellants contention therefore
with respect to plot No. 427 must also fail.
Re. Plot. No. 1128 The case of the appellants
with respect to this plot is similar to the case with reference to plot 427. In
the circumstances the appellants' contention with respect to this plot must
also fail. As no other point was urged before us, the whole appeal fails.
We therefore dismiss the appeal with costs.