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PETITIONER: SHEODHYAN SINGH AND OTHERS

       Vs.

RESPONDENT: MUSAMMAT SANTCHARA KUER AND OTHERS

DATE OF JUDGMENT: 04/05/1961

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B.

CITATION:  1963 AIR 1879            1962 SCR  (2) 753

ACT: Final decree-Sale certificate-Property sold fully  described but wrong number given-If mere misdescription.

HEADNOTE: 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 misdescription  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.

JUDGMENT: 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 of 1947. L.K. Jha and P.K. Chatterjee, for the Appellants.

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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  thmselves  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 their- acqittal  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  res- pect 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-

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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  bearing  No. 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

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the  circumstances  in view of s. 47 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 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.

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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 subrogation- even  if it was open to the appellants  to raise that  point before, us. on,                             761 behalf of Ramzan Mian and another. 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

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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. Appeal dismissed. 762