ARUMOORTHI CHETTIAR Vs. SECONDARY EDUCATION COMMITTEE OF VALLALA SANGAM OF

JUDGEMENT

(1.) THIS appeal arises From A. S. No. 40 of 1957 on the file of the court of the subordinate Judge, Dindigul, which was tiled against O. S. No. 8 of 1957, on the file of the District Munsif Court, Dindigul. The defendant is the appellant herein. The facts are briefly as follows. One Sankaranarayana Pillai owned a block of land comprising of several survey numbers and extending in area, 111 acres and 34 cents. They were entered in patta No. 1349 in his name in the revenue records. On 22-7-1943, under the sale deed, Ex. B. 23, he sold 87 acres 28 cents out of the said block to two persons, Si Palamandi Thevar and Sa Palaniandi Thevar. Subsequently, a document Ex. 134 dated 23-8-1949 was executed by sankaranarayana Pillai to the two vendees. Since the major controversy in the suit has arisen on account of Ex. B4 its purport has to be given briefly. It states that the entire 111 acres and odd (comprised in the block) were agreed to be sold for rs. 3000 under Ex. B. 23 that by mutual mistake, 24 acres and odd, set cut in schedule B to Ex. 134, were omitted to be included in Ex. B. 23, that sankaranarayana Pillai was executing the rectification deed Ex. B4 to right this mutual mistake and that 24 acres and odd also should he deemed as having been sold under Ex. B. 23. It also recites that the executant has simultaneously applied for transferring the B schedule properties from the patta number of the executant to the patta number of the vendees.

(2.) THIS document was not registered. It is ground that purporting as it does, to be rectification deed consequent upon a mutual mistake, the document does not require registration for its validity. The claim of the two vendees was that ever since the date of the sale under Ex. B. 23, they really got into possession of the entire 111 acres and odd as vendees from Sankaranarayana Pillai. and that they were paying kist for the entire land including the 24 acres and odd. Sa. Palaniandi thevar sold his half share in 87 acres and odd to one Ramaswami Naicker on 711-1951, who in turn sold it to the defendant on 24-10-1952. Si. Palaniandi thevar sold, his half share in 87 acres and odd to the defendant on sankaranarayana Pillai however proceeding on the footing that he was still entitled to 24 acres and odd gifted 5 acres and 13 cents out of it to the Boodan committee, and by another deed dated 22-11-1954 settled the remaining 18 acres and 93 cents of the Secondary Education Committee of the Vellala Sangam who is the plaintiff in the suit. The claim of the plaintiff was that in the sale deed dated 22-7-1943, only 87 acres and odd were sold and it was never intended to convey he balance of 24 acres and odd that when the two vendees tried to sell their lands to one Krishnaswami Chetti in 1949, the Vendee Insisted, on a conveyance of the whole block. Thereupon the two Thevars approached Sankaranarayana Pillai for a sale of 24 acres and odd. In order to save stamp duty a document was written up as if it was a rectification deed. It was in the contemplation of the parties to have the deed registered, but on account of a sudden calamity in Sankaranarayana Pillai's house, it vies not registered. When subsequently Sankaranarayana Pillai asked the Thevars to return the unregistered document, they told him that they had mislaid it. What the thevars intended at the time of the writing of the deed was to take a sale of 24 acres and odd. for Rs. 1000 so that the Thevars could sell the entire block to krishnaswami Chetti, realise the price from him and pay Sankaranarayana Pillai. The sale to Krishnaswami Chetti did not materialise and, therefore, the whole transaction fell through. Ex. 134 was never acted upon. The plaintiff therefore claims to have obtained title to the extent of 18 acres and odd from sankaranarayana Pillai under the settlement deed Ex. A. 1 dated 22-11-1954. Since the defendant trespassed upon ten acres and odd of the suit properties, and raised two crops thereon the plaintiff has come forward with the suit for declaration of title and recovery of possession. The suit was filed in 20-7-1955. After the filing of the suit, on 12-12-1956 under Ex. B. 30 the two Palaniandi thevars sold the above 24 acres and 6 cents to the defendant.

(3.) THE plea of the defendant was that the actual sale to Palaniandi Thevars comprised 24 acres and odd also, that it was a mutual mistake to have omitted that extent in the sale deed that Ex. B. 4 was really a rectification deed regarding this document, that the title and possession remained with the two Palaniandi thevars, that the defendant had obtained a valid title from Thin, and that the plaintiff had no title under the settlement deed in his favour.