Case Note & Summary
The plaintiff purchased a property measuring 520 sq. mtrs. vide registered sale deed dated 26.12.1977 from defendants no.1 and 3 to 6. The suit property was described as Survey No.97/1. In 1997, when the plaintiff applied for mutation, the Talathi informed that the property had been partitioned before the sale and was now surveyed as 97/1-B. The plaintiff called upon the defendants to execute a rectification deed, but they did not respond. After a legal notice dated 20.11.2001, the plaintiff filed Regular Civil Suit No.11/2002 on 05.03.2002 seeking a decree directing the defendants to rectify the survey number in the sale deed. The defendants filed a written statement without specifically denying the claim for rectification but pleaded that the plaintiff illegally constructed a wall. The trial court dismissed the suit as barred by limitation, holding that the suit was filed more than three years after the sale deed. The first appellate court confirmed the dismissal. In second appeal, the High Court held that the cause of action for rectification arises only upon discovery of the mistake, and the suit was within limitation as the mistake was discovered in 1997. The court allowed the appeal, set aside the judgments below, and decreed the suit directing the defendants to execute a rectification deed within two months.
Headnote
A) Limitation - Rectification of Instrument - Section 26 Specific Relief Act, 1963 - Article 59 Limitation Act, 1963 - The suit for rectification of a registered sale deed was filed more than 20 years after its execution. The plaintiff discovered the mistake in survey number only in 1997 when applying for mutation. The court held that the cause of action for rectification arises only upon discovery of the mistake, and the suit filed within three years of such discovery is within limitation. The trial court and first appellate court erred in dismissing the suit as barred by limitation. (Paras 1-10)
B) Civil Procedure - Second Appeal - Section 100 CPC - Substantial Question of Law - The High Court held that the erroneous dismissal of a suit on limitation without considering the date of discovery of mistake raises a substantial question of law. The second appeal was allowed, and the suit was decreed directing the defendants to execute a rectification deed. (Paras 11-15)
Issue of Consideration
Whether the suit for rectification of the sale deed was barred by limitation and whether the courts below erred in dismissing the suit on the ground of limitation.
Final Decision
The High Court allowed the second appeal, set aside the judgments of the trial court and first appellate court, and decreed the suit directing the defendants to execute a rectification deed within two months from the date of the judgment.
Law Points
- Rectification of instrument
- Section 26 Specific Relief Act
- 1963
- Limitation for rectification
- Discovery of mistake
- Maintainability of second appeal
- Substantial question of law
Case Details
2023 LawText (BOM) (10) 184
Second Appeal No.117/2005 with Misc. Civil Application No.1657 & 1658/2021 (F)
Mr Nigel da Costa Frias with Ms Barbara Andrade for the Appellants, Mr Deep Shirodkar for the Respondents
Raghuvir Kashinath Kerkar & Ors.
Smt. Drakshayani Vishwanath Kerkar (since deceased) through LRs
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Nature of Litigation
Civil suit for rectification of a registered sale deed to correct the survey number of the property.
Remedy Sought
The plaintiff sought a decree directing the defendants to execute a rectification deed correcting the survey number from 97/1 to 97/1-B in the sale deed dated 26.12.1977.
Filing Reason
The plaintiff discovered in 1997 that the survey number mentioned in the sale deed was incorrect due to a prior partition, and the defendants refused to rectify the deed despite notice.
Previous Decisions
The trial court dismissed the suit as barred by limitation, and the first appellate court confirmed the dismissal.
Issues
Whether the suit for rectification of the sale deed was barred by limitation under Article 59 of the Limitation Act, 1963.
Whether the courts below erred in dismissing the suit without considering that the cause of action arose only upon discovery of the mistake in 1997.
Submissions/Arguments
The plaintiff argued that the mistake in the survey number was discovered only in 1997 when applying for mutation, and the suit filed in 2002 was within three years of such discovery.
The defendants did not specifically deny the claim for rectification but raised a plea of illegal construction, which was not relevant to the rectification claim.
Ratio Decidendi
The cause of action for rectification of an instrument under Section 26 of the Specific Relief Act, 1963 arises only upon discovery of the mistake, and the suit must be filed within three years of such discovery. The suit filed in 2002 was within limitation as the mistake was discovered in 1997.
Judgment Excerpts
The plaintiff's case in the suit is that he purchased the suit property measuring 520 sq. mtrs. vide registered sale deed dated 26.12.1977 from defendants no.1 and 3 to 6.
The Talathi, on perusing the records, informed the plaintiff that the defendants had partitioned the suit property before the execution of the sale deed dated 26.12.1977, and the suit property sold to the plaintiff was now surveyed under No.97/1-B.
The defendants filed their written statement, in which there is neither any specific denial nor any defence to resist the plaintiff's claim for rectification of the survey number in the registered sale deed dated 26.12.1977.
Procedural History
The plaintiff filed Regular Civil Suit No.11/2002 on 05.03.2002. The trial court dismissed the suit as barred by limitation. The plaintiff appealed to the District Court, which confirmed the dismissal. The plaintiff then filed Second Appeal No.117/2005 in the High Court of Bombay at Goa, which was allowed on 05.10.2023.
Acts & Sections
- Specific Relief Act, 1963: Section 26
- Limitation Act, 1963: Article 59
- Code of Civil Procedure, 1908: Section 100
