D.S. Bajpai, J. - (1.) This is a defendant's second appeal against the judgment and decree dated 29.5.1978 passed by the II Addl. District Judge, Sultanpur in Civil Appeal No. 205 of 1977 (Avadh Behari and others v. Ram Sajiwan and others) dismissing the appeal and confirming the judgment and decree dated 5.4.1977 passed by the Addl. Munsif, Sultanpur in Regular Suit No. 207 of 1973 (Ram Sajiwan and others v. Avadh Behari and others) by which the plaintiff's suit was decreed with costs.
(2.) Brief facts giving rise to the case are that by a registered sale-deed dated 23.2.1973 in respect of ⅔rd portion of a house as detailed by letters Ga, Gha, Ja, Jha, Ta, Tha, the plaintiffs obtained title over the said house but a clerical mistake was to the effect that the sale-deed did not, in fact, indicate the real intention of the parties executing the sale-deed since it amounted to not related to transfer of the remaining ⅓rd portion of the said house. The plaintiff's suit was, therefore, confined to the rectification of the clerical mistake that occurred in the registered sale-deed to indicate the whole house described by letters Ga, Gha, Ja, Jha, Ta, as shown in the plaint map. The defendants contested the suit and, inter alia, stated that there was no clerical mistake and the sale-deed was not liable to be rectified. On the pleadings of the parties the trial court framed six issues. Issue No. 1 pertained to the fact as to whether the sale-deed was executed under some misconception resulting in mistake occurring in the sale-deed and the succeeding issue pertained to the question as to whether it should be rectified. Issue No. 3 pertained to correctness of the site plan attached with the plaint. Issue No. 4 was to the effect as to whether the suit was within time and issue No. 5, to the effect as to whether the defendants were entitled to special costs under Section 35-A of the Code of Civil Procedure. Issue No. 6, related to reliefs, The trial court by its detailed judgment after apprising evidence, oral and documentary, held is a fact that there was a clerical mistake in the sale-deed in question and that it was able to be rectified. It further held that the site plan shown in the plaint was correct. It found that the sale-deed having been executed on 18.2.1970 the suit filed on 24.7.1973 was within time since there was no specific provision in the Limitation Act about the limitation in respect of such suits relying on the provisions of residuary Article 113 of the Limitation Act. The trial court based its decision on the law laid down by their Lordships of the Supreme Court in the case of Musammat Rakhmabai v. Lala Laxmi Narain AIR 1960 SC 335 that "The time begins to run not from the date on which an adverse entry is made but from the date on which there is a 'fresh denial' of the plaintiff's title, and held that the time of three years under Article 113 of the Limitation Act started running not from the date of which the sale-deed was executed, as laid down by their Lordships, but from the date when "fresh denial" of the plaintiff's title was made and this denial related back within the time of three years and the suit was as such within time. The lower appellate court confirmed of these findings. Aggrieved by the judgments and decrees of the two courts below the plaintiffs has come in second appeal before this Court.
(3.) I have heard learned counsel for the appellants, Sri Bireshwar Nath, and the learned counsel for the respondents, Sri P.K. Khare. The only submission made by the learned counsel for the appellants has been that the civil court had no jurisdiction to grant a decree directing the Sub-Registrar to rectify the mistake even if it be clerical, in the registered sale-deed. The learned counsel for the respondents submitted that under the provisions of Section 9 of the Code of Civil Procedure civil Courts had jurisdiction to try all civil suits unless barred. The provisions of Section 9 of the Code of Civil Procedure are as under: "Part I Suits in General Jurisdiction of the Court and Res judicata. Courts to try all civil suits unless barred - The Courts shall subject to the provisions herein contained have jurisdiction 4 to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation (1) - A suit in which the right to property or to an office is contested is.a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Explanation (II) - For the purposes of this section it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.";