Supreme Court Dismisses Appeal in Mortgage Execution Dispute Over Plot Number Misdescription. Omission of Zero in Plot Number Held Mere Misdescription When Boundaries, Khata Number, and Area Clearly Identify the Property.

Suit for declaration of title, possession by ejectment of defendants, and mesne profits in respect of ten plots of land arising from a mortgage execution sale and subsequent purchase by plaintiffs.

Respondents sought a declaration that the property belonged to them, possession of the plots by ejectment of the appellants, and mesne profits.

Appellants forcibly dispossessed the respondents after previous disputes and criminal proceedings; respondents filed the suit to recover possession and title.

Trial court decreed the suit for possession with mesne profits to be determined later; Patna High Court dismissed the appeal except as to one plot where the respondents' suit was dismissed, resulting in a variance and grant of certificate for appeal to Supreme Court.

Whether plot No. 1060 was included in the final decree for sale and sale certificate despite being described as plot No. 160, and whether the error constituted mere misdescription or disputed identity. Whether the second mortgagees were subrogated to the first mortgagee's rights for plot No. 427 in the absence of any agreement regarding subrogation in the second mortgage deed.

Appellants argued that plot No. 1060 was not included in the final decree for sale or sale certificate and relied on Rambhadra Naidu v. Kadiriyasami Naicker, contending that sale certificates are documents of title and should not be loosely construed. Appellants further contended that for plot No. 427, the second mortgagees, Ramzan Mian and another, had redeemed the first mortgage and were subrogated to the rights of the first mortgagees. Respondents argued that the description of plot No. 160 was a mere misdescription because the khata number, area, and boundaries in the documents matched plot No. 1060, and no plot bearing No. 160 existed in khata No. 97. Respondents relied on Thakur Barmha v. Jiban Ram Marwari and Gossain Das Kundu v. Mrittunjoy Agnan Sardar to show that where identity is clear, misdescription is a mere irregularity. Respondents submitted that the second mortgage deed did not leave any money to redeem the first mortgage and contained no agreement for subrogation, so the question of subrogation could not be raised.

Where a property sold in execution of a mortgage decree is fully identified by khata number, area, and boundaries, an error in the plot number in the final decree and sale certificate is a mere misdescription and does not affect the identity of the property sold, especially when no plot with the erroneous number exists and other particulars match. In the absence of an agreement regarding subrogation in the second mortgage, the question of subrogation cannot be raised.

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. 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. 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.

Appellants took loan from other defendants on a mortgage bond. In 1932, other defendants instituted a mortgage suit which was decreed against appellants. In 1936, the mortgaged property was sold by auction and purchased by other defendants, who obtained possession through court delivery. In 1943, other defendants sold the property to respondents. Respondents came into possession but appellants created trouble; proceedings under Section 144 and Section 107 of Code of Criminal Procedure were initiated. In 1945, a murder occurred and some appellants were acquitted. After acquittal, appellants forcibly dispossessed respondents. In July 1946, respondents filed the present suit. Trial court decreed suit for possession with mesne profits to be determined later. Appellants appealed to Patna High Court; High Court dismissed the appeal except as to one plot, varying the decree and granting certificate for appeal. Supreme Court heard the appeal on the remaining issues.

• Code of Criminal Procedure, 1898: Section 144, Section 107
• Code of Civil Procedure, 1908: Section 47