IN THE HIGH COURT OF JUDICATURE AT PATNA

CIVIL MISCELLANEOUS JURISDICTION No.1076 of 2017

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Radhe Yadav Son of Late Jagarnath Yadav Resident of Village-Bambar, P.S.

Sangrampur (Tetiya Bumber), District-Munger.

... ... Petitioner

Versus

Prabhas Yadav, son of Genhari Yadav, Resident of Village-Bambar, P.S.

Sangrampur (Tetiya Bumber), District-Munger.

... ... Respondent

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Appearance :

For the Petitioner/s: Mr. Ajit Kumar Singh, Advocate

For the Respondent/s: Mr. Suman Kumar Mishra, Advocate

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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA

CAV JUDGMENT

Date : 26-06-2024

The present civil misc. petition has been filed by the

petitioner under Article 227 of the Constitution of India for

quashing the order dated 02.03.2017 passed by the learned

Munsif-I, Munger in Misc. Case No. 05 of 2016 rejecting the

petition dated 21.05.2016 filed by the petitioner for review of

the order dated 22.04.2016 passed in Title Suit No. 23 of 2011

and also for quashing the order dated 22.04.2016 passed in Title

Suit No. 23 of 2011 whereby and whereunder the petitioner was

debarred from cross-examining the witness Prabhas Yadav, the

respondent herein, on the point of contents of document.

02. Briefly stated, the facts leading to filing of the

present petitioner, as it appears from the record, are that the

petitioner has filed Title Suit No. 23 of 2011 for declaration of

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the title of the plaintiff on the suit land and for confirmation of

possession over the said property apart from recovery of

possession in case the plaintiff was dispossessed during

pendency of the suit and also for permanent injunction against

the defendant. After service of notice, the respondent, who is

defendant before the learned trial court, appeared and filed his

written statement. While the evidence of the defendant was

being recorded, the learned Munsif-I, Munger did not permit the

learned counsel for the petitioner to cross-examine the

defendant/respondent on the point relating to contents of the

document specifically on the point of boundary mentioned in

the sale deed executed by his vendor in favour of the petitioner.

The learned Munsif-I, Munger vide order dated 22.04.2016

debarred the petitioner to cross-examine the witness on the point

that evidnece could not be givent to change or alter the contents

of the document as the same is not permissible under the

provisions of Section 92 of the Indian Evidence Act (hereinafter

referred to as ‘the Act’). Against the order dated 22.04.2016, the

petitioner filed review petition on 21.05.2016, which was

registered as Misc. Case No. 05 of 2016, but the same was

rejected by the learned Munsif vide order dated 02.03.2017. The

aforesaid orders have been assailed before this Court in the

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instant civil misc. petition.

03. Further case of the petitioner is that the suit

property bearing Khata No. 184, Plot No. 659, measuring an

area 2 ¼ katha originally belonged to one Ram Sahay Yadav

(Gope). Out of said area of 2 ¼ katha, Ram Sahay Yadav sold

02 decimal land to one Jhagru Gope and accordingly, mutation

was done in the name of Jhagru Gope. After death of Jhagru

Gope, his wife Dhaniya Devi sold 02 decimal land in favour of

the petitioner on 09.11.1949. However, at the time of registry,

the deed writer mistakenly mentioned incorrect Plot No. 654

instead of correct plot no. 659 but boundary of Plot No. 659 was

correctly mentioned in the sale-deed. The petitioner coming to

know about the mistake committed by the deed writer, filed a

petition for correction of plot number in the Registry Office on

04.07.1989 and accordingly, plot number was corrected and the

name of the petitioner was entered into Jamabandi No. 184/258

existing in name of Jhagru Gope and thus new jamabandi was

created in Mutation Case No. 04 of of 2001. The petitioner had

also purchased 5 ¼ dhurs land of the said plot no. 659 from

Genhari Yadav, son of late Ram Sahay Yadav, by way of

registered sale deed dated 25.04.1980. Since wrong plot number

was mentioned in earlier sale deed, following the same sale

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deed, again incorrect plot number was mentioned and same

mistake was committed by the deed writer. But despite repeated

requests of the petitioner, Genhari Yadav, the father of the

respondent, did not agree to file any petition for rectification of

the said mistake committed by the deed writer and correction of

the plot number. Further case of the petitioner is that in past

when the dispute arose over plot number of earlier purchased 02

decimal land of the petitioner, a panchayati was held and

Genhari Yadav accepted that the plot number has been wrongly

mentioned and dispute over right to way (‘Rasta’) was settled.

However, in the document of panchanama, it came to be

wrongly mentioned that 02 decimal of land was purchased by

the petitioner from father of Genhari Yadav whereas father of

Genhari Yadav sold 02 decimal land to Jhagru Gope, whose

wife later on sold it to the petitioner. Further, in the sale-deed

dated 25.04.1980 executed by Genhari Yadav, by virtue of

earlier purchased 02 decimal land, the petitioner has been shown

as boundary raiyat. Further case of the petitioner is that the

defendant/respondent, with an intention to grab the land

purchased by the petitioner, filed a petition for correction of

jamabandi No. 184/258 vide Case No. 01/2005-06. In the said

case, the Deputy Collector Land Reforms, on the basis of wrong

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and fictitious report of Halka Karmachari and Circle Inspector,

included the said land in Original jamabandi No. 184 and

against the said order, the petitioner preferred an appeal before

the learned Collector, Munger vide Appeal No. 07 of 2005-06.

However, in the appeal, learned Collector, Munger vide order

dated 18.01.2010 directed the parties to approach the competent

civil court for resolution of the issue and thus, Title Suit No. 23

of 2011 came to be filed by the petitioner.

04. Learned counsel further submitted that the learned

trial court committed an error when it ordered for debarring the

petitioner from cross-examining the respondent on the point of

change in the contents of the document under the provisions of

Section 91 and 92 of the Act. The learned trial court lost sight of

the fact that the whole suit was based on the issue whether

incorrect plot number has been mentioned in the sale-deed.

Furthermore, the petitioner has not been trying to contradict or

add or subtract the terms of the sale-deed and just wanted to

clarify the point regarding boundary of plot no. 659 since in the

earlier sale-deed plot number has been corrected and boundary

remained the same. Only this aspect of the matter was tried to

be clarified in the cross-examination by the petitioner, so as to

compare the boundary of two sale-deeds. The learned trial court

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did not consider this fact and wrongly relied on Sections 91 and

92 of the Act and has not appreciated the fact that the petitioner

was neither trying to prove the document through oral evidence

nor he want to change or add to the contents of the sale-deed. In

support of his submission, learned counsel relied on the decision

of Hon’ble Supreme Court in the case of Sheodhyan Singh v.

Musammat Sanichara Kuer, reported in AIR 1963 SC 1879

regarding misdescription of plot number though khata number

and boundary referred to different plot numbers specially para-7

of the said decision which reads as under:-

“7. 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. It is also important to

remember that there is no plot bearing No.

160 in Khata No. 97. In these circumstances

we are of opinion that the High Court was

right in holding that this is a case of

misdescription only and that the identity of

the property sold is well established,

namely, that it is Plot No. 1060. The matter

may have been different if no boundaries

had been given in the final decree for sale

as well as in the sale certificate and only

the plot number was mentioned. But where

we have both the boundaries and the plot

number and the circumstances are as in this

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case, the mistake in the plot number must

be treated as a mere misdescription which

does not affect the identity of the property

sold. The contention of the appellants

therefore with respect to this plot must

fail.”

Learned counsel further relied on the decision of

Hon’ble Supreme Court in the case of Jahuri Sah & Ors. Vs.

Dwarka Prasad Jhunjhunwala & Ors., reported in AIR 1967

SC 109 wherein the Hon’ble Supreme Court made certain

observation with regard to existence of a deed of adoption and

of its non-production in the court and oral evidence not

becoming inadmissible with regard to factum of adoption. The

Hon’ble Supreme Court held that admission of existence of a

deed of adoption and its non-production in the court would not

render oral evidence inadmissible because it is not by virtue of a

deed of adoption that a change of status of a person can be

effected. The Hon’ble Supreme Court further held that a deed of

adoption merely records the fact that an adoption had taken

place and nothing more. Such a deed cannot be likened to a

document which by its sheer force brings a transaction into

existence. It is no more than a piece of evidence and the failure

of a party to produce such a document in a suit does not render

oral evidence in proof of adoption inadmissible.

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Learned counsel also referred to a decision of

Karnataka High Court in the case of M. D. Gopalaiah Vs. Smt.

Usha Priyadarshini and Ors. reported in AIR 2002

KARNATAKA 73 to stress the point that though any oral

evidence in contradiction with terms of the written document

are not admissible, but the reading of the aforesaid authorities

go on to show that even if terms or contents as such could not be

challenged and oral evidence is inadmissible to that extent but

wrong mentioning of digit or numbers are open to challenge.

Thus, learned counsel submitted that in the aforesaid facts and

in terms of settled legal proposition of law, the impugned orders

passed by the learned Munsif-I, Muger are not sustainable and

fit to be set aside.

05. Per contra, learned counsel appearing on behalf of

the respondent vehemently contended that there is no infirmity

in the impugned order and the same needs to be sustained.

Leaned counsel for the respondent submitted that the learned

trial court has rightly debarred the petitioner from asking

questions with regard to contents of a registered document,

which is not admissible under the provisions of Sections 91 and

92 of the Act. The father of the respondent did not sell any land

to the petitioner and a fraudulent document has been brought

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into existence by the petitioner since the father of the respondent

died on 07.06.1977 and it was not possible for him to execute

sale deed on 25.04.1980. The claim of the petitioner about

mentioning of wrong plot number, i.e., Plot No. 654 in the sale

deed of 1949 instead of Plot No. 659, is not correct since the

respondent has been in possession of the suit land of Plot No.

659 and considering this fact, Jamabandi created in favour of

the petitioner was cancelled and it was opened in the name of

the respondent. Late Ram Sahay Yadav never sold the land of

Plot No. 659 to Jhagru Gope and for this reason Dhaniya Devi

wife of Jhagru Dope had no right to execute the correction deed

in favour of the petitioner changing the Plot No. from 654 to

659. Considering all these facts, the learned Collector also

dismissed the appeal against the Jamabandi created in favour of

the respondent. Learned counsel further submitted that the

authorities cited by the petitioner are of no help to the cause of

the petitioner since facts are not similar with the present case.

On the aforesaid grounds, the present petition is not sustainable

and the same be dismissed.

06. I have given my thoughtful consideration to the

rival submission of the parties. Basically, the issue involved in

the present case is whether the respondent could be put to cross-

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examination on the point of correctness of the plot number and

the boundary as mentioned in two sale deeds since the learned

trial court disallowed the cross-examination under the

provisions of Section 91 and 92 of the Act.

07. Now, Sections 91 and 92 of the Act read as under:-

“Section 91. Evidence of terms of

contracts, grants and other dispositions

of property reduced to form of document.

When the terms of a contract, or of a

grant, or of any other disposition of

property, have been reduced to the form of

a document, and in all cases in which any

matter is required by law to be reduced to

the form of a document, no evidence shall

be given in proof of the terms of such

contract, grant or other disposition of

property, or of such matter, except the

document itself, or secondary evidence of

its contents in cases in which secondary

evidence is admissible under the

provisions hereinbefore contained.

Exception 1.-- When a public officer is

required by law to be appointed in

writing, and when it is shown that any

particular person has acted as such

officer, the writing by which he is

appointed need not be proved.

Exception 2. -- Wills [admitted to

probate in [India]] may be proved by

the probate.

Explanation 1.-- This section applies

equally to cases in which the

contracts, grants or dispositions of

property referred to are contained in

one document and to cases in which

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they are contained in more documents

than one.

Explanation 2. -- Where there are

more originals than one, one original

only need be proved.

Explanation 3. -- The statement, in any

document whatever, of a fact other

than the facts referred to in this

section, shall not preclude the

admission of oral evidence as to the

same fact.

Section 92. Exclusion of evidence of oral

agreement.

When the terms of any such contract, grant

or other disposition of property, or any

matter required by law to be reduced to the

form of a document, have been proved

according to the last section, no evidence of

any oral agreement or statement shall be

admitted, as between the parties to any such

instrument or their representatives in interest,

for the purpose of contradicting, varying,

adding to, or subtracting from, its terms:

Proviso (1). -- Any fact may be proved

which would invalidate any document,

or which would entitle any person to

any decree or order relating thereto;

such as fraud, intimidation, illegality,

want of due execution, want of

capacity in any contracting party,

[want or failure] of consideration, or

mistake in fact or law.

Proviso (2). -- …………………………...

Proviso (3). -- …………………………..

Proviso (4). -- …………………………

Proviso (5). …………………………...

Proviso (6). -- ………………………...”

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08. Reading of the aforesaid two sections of the Act,

makes it clear that these two sections are supplementing each

other. Section 91 applies to all documents, whether they purport

to dispose of rights or not, whereas Section 92 applies to

documents which can be described as disposing of right. Section

91 applies to documents which could be bilateral or unilateral,

but the application of Section 92 is confined only to bilateral

documents. The provisions of the aforesaid two sections are

based on “best evidence rule” that when a transaction has been

reduced to writing, it becomes the exclusive memorial thereof,

and no external evidence is admissible either to prove

independently the transaction or to contradict vary, add to or

subtract from, the terms of the documents, though the content of

the document may be proved either by primary or secondary

evidence. The law always requires that only the best evidence be

laid and hence to admit inferior evidence when the law requires

superior would be to nullify the law.

09. Now, coming back to the facts of the case, the

learned trial court disallowed the question put by the learned

counsel for the petitioner to the respondent in his cross-

examination regarding boundary of Plot Nos. 659 and 654. No

doubt, the contents of a document with regard to disposition of

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property cannot be given under the provisions of Section 91 of

the Act, but the suit has been brought for declaration of title and

possession of the petitioner on the suit property purportedly of

Plot No. 659 and it has been claimed by the petitioner that plot

number has been wrongly mentioned. Now, Proviso (1) of

Section 92 of the Act allows any fact to be proved which would

invalidate any document, or which would entitle any person to

any decree or order relating thereto; such as fraud, intimidation,

illegality, want of due execution, want of capacity in any

contracting party, want or failure of consideration, or mistake in

fact or law. The mistake contemplated under the Proviso must

be genuine and accidental mistakes like misdescription of

property. Evidence can be allowed to know whether a particular

land was conveyed under the document as held in the case of

Rikhiram and Anr. Vs. Ghasiram, reported in AIR 1978 MP

189, wherein it has further been held that oral evidence was

admissible to prove that the expression of the contract was

contrary to the concurrent intention of all the parties due to a

common mistake. In the case of Ram Jiwan Rai and Ors. vs

Deoki Nandan Rai and Ors., reported in AIR 2005 PAT 23

[relying on the decision in the case of Sheodhyan Singh

(supra)], it has been held that where there was intrinsic evidence

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to prove that the vendor intended to convey the right, title and

interest in respect of the suit property in favour of the plaintiff,

the mistake in the plot number must be treated as a mere

misdescription which does not affect the identity of the property

sold.

10. Furthermore, in the case of Abdul Hakim Khan Vs.

Ram Gopal and Ors., reported in AIR 1922 All 42, it has been

held that in proviso (1) to Section 92 of the Act it is laid down that

any fact may be proved such as…mistake in fact or law which

would entitle any person to any decree or order relating to a

document and thus it has further been held that it cannot be

doubted that it was open to the plaintiffs to prove this mistake and

the evidence which they produced to prove that fact was certainly

admissible. It is pertinent to mention here that certain mistake was

found in description of property in a mortgage deed and findings

were challenged on the ground of admissibility of the evidence.

In the case of Chimanram Motilal Vs. Divnchand

Govidram, reported in AIR 1932 Bom 151, it has been held that

for the purpose of determining the existence of mistake in a

written document oral evidence is admissible when the

circumstances are appropriate.

In the case of Rajaram Vs. Manik & Ors., reported in

AIR 1952 Nag 90, it has been held that in Proviso (1) to Section

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92 of the Act, it is laid down that any fact may be proved such as

……mistake in fact or law which would entitle any person to any

decree or order relating to a document. Oral evidence is, thus

admissible to prove that the expression of the contract is contrary

to the concurrent intention of all parties due to a common mistake.

The Court further held that oral evidence was thus admissible to

prove that the properties described in the sale-deeds Exhibits P-7

and D-1 were not correctly stated due to common mistake.

In the case of Tulsiram Rajaram Brahman and Anr.

Vs. Durgaprasad Ramprasad Brahman and Ors., reported in

2001 SCC OnLine MP 260, the learned Single Judge held in

paragraph Nos. 8, 9 and 10 as under:-

“8. The general rule is that there is

exclusion of oral evidence by documentary

evidence. The terms of a document should

not be allowed to be varied, contradicted,

added or subtracted from. But there are

exceptions incorporated in the provisos to

section 92 of the Evidence Act. Under the

Proviso (1) oral evidence can be given to

show that due to mistake in fact or law the

written instrument does not correctly express

the agreement which the parties had really

entered into. The law permits in such a case

to prove the mutual mistake. It can be shown

that the contract is contrary to the

concurrent intention of the parties. The oral

evidence, in case of mutual mistake, can be

led to vary the written contract. The mistakes

contemplated in this proviso are genuine and

accidental mistakes, just as the mis-

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description of the property.

9. If there is a mutual mistake as to the

description of a piece of land in a registered

mortgage-deed, oral evidence is admissible,

Kota China v. Kannekanti, 31 IC 671. Such a

mistake can be pleaded by way of defence

also. Janardan v. Venkatesh, AIR 1939 Bom.

151. The combined effect of section 92

proviso (1) and section 26 of the Specific

Relief Act, 1963 is to enable either party to

prove a mistake without prior rectification of

an instrument. A mistake relating to a survey

number in a sale-deed can be permitted to be

proved. Rajaram v. Manik, 1954 NLJ 12 :

AIR 1952 Nag. 90, Bala Prasad v. Asmabi,

1954 NLJ 573 : AIR 1954 Nag. 328 and

Rikhiram Pyarelal v. Ghasiram, 1978 MPLJ

527 : AIR 1978 M.P. 189.

10. In the present case the plaintiff

could be legally permitted to prove that in

the sale-deed Khasra No. 98 was wrongly

written in place of Khasra No. 93 and the

finding of the fact of the two Courts being in

his favour there cannot be any interference

by this Court.”

11. Taking into consideration the discussion of law as it

has evolved, it could be safely concluded that when there is

allegation about misdescription of khesra number in the sale deed,

oral evidence as to its contents is admissible. Further, if there is

any misdescription of the property or the khesra number has been

wrongly mentioned, in my view, the same would come under the

purview of Proviso (1) of Section 92 of the Act. However, the

mistake sought to be proved by oral evidence under this proviso,

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must be one which could sustain a claim for rectification or

cancellation of the instrument.

12. In the present case, it is a pertinent fact to take note

of that the first vendor admitted the mistake in khesra number and

subsequently got a rectification deed which is in tune with the case

of the petitioner about misdescription of the property regarding

mentioning of wrong plot number. Hence, I am of the considered

opinion that the plaintiff/petitioner could be allowed to adduce oral

evidence with regard to wrong plot number or boundary of correct

plot number and in order to prove his contention, it is open to the

plaintiff/petitioner to bring evidence for determining the existence

of mistake and plaintiff could put such questions in cross-

examination to the defendant/respondent. Such oral evidence is

covered under Proviso (1) of Section 92 of the Act relating to

mistake of fact and would not run counter to the provisions of

Sections 91 and 92 of the Act.

13. In the light of discussion made here-in-before, I am

of the view that the learned trial court erred in passing the orders

dated 22.04.2016 and 02.03.2017 and committed an error of

jurisdiction in rejecting the question put to the respondent in cross-

examination with regard to boundary of Plot Nos. 654 and 659 and

hence, the orders dated 22.04.2016 and 02.03.2017 are set aside.

14. Accordingly, the instant Civil Misc. Petition stands

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allowed.

15. This Court has not expressed any opinion on the

merits of the case in any manner and whatever has been observed,

is only for the purpose of disposal of the present petition and the

learned trial court will not be prejudiced by any of the

observations made by this Court.

Ashish/-

(Arun Kumar Jha, J)

AFR/NAFR AFR

CAV DATE 09.05.2024

Uploading Date 26.06.2024

Transmission Date NA