CHARANJIT KAUR Vs. KAMLA DEVI

JUDGEMENT

(1.) The plaintiff is the appellant in this second appeal. One Kamla Devi sold Khasra Nos. 390, 393 and 394 to Charanji Lal under a sale-deed dated 14.10.1959. Though the sale deed referred to the entry in the Jamabandi and that entry in the Jamabandi mentioned the Khasra numbers as 390, 393 and 394 by some mutual mistake the Khasra numbers given in the sale-deed were 310, 313 and 315. Subsequently, Charanji Lal sold the land to Charanjit Kaur plaintiff on 24.1.1960. In this sale-deed, the correct numbers were given. Charanjit Kaur also redeemed a mortgage to which the land was subject. Later, when Charanjit Kaur applied for mutation, it was discovered that in the original sale-deed executed by Kamla Devi in favour of Charanji Lal, wrong Khasra numbers had been given. Therefore, the plaintiff filed a suit for rectification of the sale-deed. The trial Court decreed the suit, but the lower appellate Court dismissed the suit on the ground that it was barred by limitation. According to the lower appellate Court, the plaintiff must have come to know of the mistake at least when the sale-deed in her favour was executed and if limitation was reckoned from that date, the suit would be barred by time.

(2.) In this second appeal, Shri J.V. Gupta, learned counsel for the appellant, argues that there was an averment in the plaint that the mistake came to be known to the plaintiff at the time when the mutation was sought about a year before the filing of the suit. P.W. 5 (plaintiff's husband) had also stated in his statement that the mistake came to their notice at the time when the mutation was sought. However, it was not specifically averred either in the written statement or suggested in the cross-examination of P.W. 5 that the plaintiff had come to know of the mistake earlier. Nor was there any evidence on the side of the defendants to impute earlier knowledge to the plaintiff. In the plaint, the averment was :-

(3.) Learned counsel for the respondent argued that the appropriate article of the limitation Act which was applicable was the residuary Article 113 which prescribed period of three years from the date when the right to sue accrued. In a case like the present, I am of the view that the right to sue accrues only when the mistake comes to the knowledge of the plaintiffs. Since the suit was filed within three years from the knowledge of the mistake, the suit is within time. In the result, the judgment and decree of the lower appellate Court are set aside and the judgment and decree of the trial Court are restored. The second appeal is allowed with costs.