1. This is a plaintiff's first appeal arising out of a suit for possession, mesne profits and for rectification of a deed. The facts of the case are as follows :
Chandra Sarup and Joti Prasad, defendants, are minors and both of them have certificated guardians appointed by the District Court. In Suit No. 37 of 1921, a decree on the basis of a mortgage deed was passed against them. In that deed a 10 biswa zamindari share in mahal Chain Sukh, 'patti' Rattan Kunwar, entered in khewat as holding No. 2 in mauza Qayampur Bahiria had been mortgaged but the decree was passed in respect of only 8 biswa 12 biswansi and 13 kachwansi share out of the above-mentioned share. That decree was made absolute and was put in execution. The parties to the suit entered into a compromise on 1st March 1929, and it was agreed that the 8 biswa 12 biswansi and 13 kachwansi share should be sold by the defendants to' the plaintiff in consideration of a sum of Rs. 33,000. Rs. 23,000 went towards the satisfaction of the mortgage decree and the balance of Rs. 10,000 went towards-satisfying another decree No. 104 of 1921, which the plaintiff bad against the defendants.
2. The permission of the District Court was obtained in order to permit the guardian to execute a sale deed in favour of the plaintiff. The draft deed was sanctioned and then the sale deed was executed. Under the agreement dated 1st March 1929, the property to be sold was 8 biswa 12 biswansi and 13 kachwansi, situate in mahal Chain Sukh, patti Ratan Kunwar, and entered in khewat as holding No. 2 in mauza Qayampur Baharia; but somehow in the deed which was executed it was wrongly recorded that the property sold was in khata-khewat No. 1. The plaintiff made an application to the revenue Court and was put in possession. Later on an application was made to the revenue Court by the defendants contending that there has been no sale in favour of the plaintiff in khata-khewat No. 2 and therefore the mutation has been wrongly made in the plaintiff's favour. This plea was successful and the name of the plaintiff was removed from the khewat. The plaintiff thereupon instituted a suit in the civil Court against the defendants. He claimed a relief for rectification of the sale deed. It appears that the office reported that the court-fee paid was insufficient. After that the plaintiff made an application for amendment and gave up the relief for rectification and asked for possession of the property sold instead, The Court which tried that suit No. 20 of 1930, came to the conclusion that as the sale deed stood unrectified, the plaintiff could not sue for possession and therefore the claim was thrown out. Then the plaintiff instituted the present suit which has given rise to this appeal.
3. In the plaint it was alleged that the property agreed to be sold which was in khata-khewat No. 2 was not mentioned in the sale deed by the defendants and their pairokar intentionally acted in bad faith. It was pleaded that 'the act of defendants was based on deception'. The plaintiff therefore prayed for the rectification of the sale deed and for possession of the property sold and further claimed a sum of Rs. 3,300 on account of mesne profits. The suit was resisted by the defendants. The learned Judge of the Court below has given the plaintiff a decree for possession of the property in suit and for a sum of Rs. 900 on account of mesne profits. The defendants have preferred this appeal against the decree passed by the Court below. We may point out that in the trial Court several pleas were taken in defence but for the purposes of this appeal, it is not necessary to mention all of them. Before us, learned Counsel for the appellants pressed only two points. One was that the suit was barred by Rule 2, Order 2, Civil P.C., and the other was that the former decision dismissing the plaintiff's suit for possession operated as res judicata. We propose to first consider the plea to the effect that the suit is barred by Rule 2, Order 2, Civil P.C. We may point out here that so far as the facts are concerned, there is no dispute between the parties. It is admitted that under the agreement of 1st March 1929, printed at p. 13, the defendants agreed to sell their property in khata-khewat No. 2. It is further agreed that the defendants possessed no property in khata-khewat No. 1. The parties are also agreed that in the sale deed which was eventually executed on 5th July 1929, by the defendants in favour of the plaintiff, the property sold was not rightly described. There, in the sale deed, it was stated that the property sold was situate in khata-khewat No. 1 in which the defendants, as a matter of fact, had no property. The sale deed is printed at pp. 15 to 19. The learned Judge of the Court below in his judgment, discussing the question of concealment and deception came to the conclusion that neither party was aware of the mistake at the time of the execution of the deed but came to know of it afterwards. He remarked:
Anyhow, the instrument can be rectified, no matter whether the wrong description was due to fraud or to mutual mistake and the point is not therefore material.
4. Thus we find that the wrong description in the sale deed was not the result of fraud. On the other hand, the learned Judge's finding is that there was a mutual mistake which was responsible for the incorrect description of the property which had been agreed to be sold. This view of the learned Judge that there was a mutual mistake has not been challenged before us by either party. It is, therefore perfectly clear that as a matter of fact the property agreed to be sold was in khata-khewat No. 2 but owing to a mutual mistake in the sale deed it was described as being in khata-khewat No. 1. Learned Counsel for the appellants has contended before us that Rule 2 of Order 2, Civil P.C., applies because the cause of action for both' the reliefs (for rectification of the sale deed and for possession) arose out of one cause of action. If this contention be correct then it is clear that the present suit is barred by the provisions of Rule 2, Order 2, Civil P.C., which enacts as follows:
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court; (2) where a plaintiff omits to sue in respect of or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished, (3) a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
5. We find ourselves unable to accept the contention of learned Counsel for the appellants. In our opinion the present suit is not barred by the provisions of Rule 2, Order 2, Civil P.C. The parties to the suit at first entered into a contract under which it was agreed that the property of the defendants in khata-khewat No. 2 will be sold to the plaintiff. In the sale deed, which was executed, owing to a mutual mistake the property sold was wrongly described. It would appear that for some time neither party discovered the mistake. The plaintiff applied for mutation and the property which had been agreed to be sold to the plaintiff (which was in khata-khewat No. 2) was mutated in the name of the plaintiff. The defendants discovered the mistake in the sale deed soon after and they immediately went to the revenue Court and filed objections to the effect that the property in khata-khewat No. 2 had not been sold to the plaintiff under the terms of the sale deed and therefore the mutation order in plaintiff's favour was wrong. This contention was rightly accepted by the revenue Court and the mutation order in favour of the plaintiff was discharged. In our opinion the cause of action for the rectification accrued when in the sale deed wrong description was given. On the discovery of this mistake the plaintiff got a right to institute a suit for rectification under the provisions of Section 31, Specific Relief Act.
6. Learned Counsel for the appellants contends that the right to claim a relief for possession also arose out of the same cause of action. He urges that the right to claim possession accrued when by mutual mistake the property was wrongly described in the sale deed. We cannot agree with this view. In our opinion on the execution of the sale deed no cause of action accrued to the plaintiff to claim a relief for possession of the property for the simple reason that the property in khata-khewat No. 2 had not been sold under the sale deed. The plaintiff could never institute a suit for possession without rectification. If he had gone to Court and claimed a relief for possession, his suit would have been thrown out on the ground that according to the terms of the sale deed as it stood he had no right to get possession over the property which had not been described in it. We find that the plaintiff did sue for possession and his former suit was dismissed because in the opinion of the Court, without rectfication of the sale deed, the plaintiff had no right to sue for possession. It has been urged by learned Counsel for the appellants that the present suit was barred because in the former suit only a relief for possession was claimed and no prayer for rectification had been made. Now it was open to the plaintiff in the former suit to have claimed both the reliefs if he liked. The question however is whether he was bound to claim both the reliefs. If he was then the second suit would certainly be barred. In Payana Rama Saminathan Chetty v. Pana Lal Palaniappa Chetty (1913) 41 I.A. 142, their Lordships made the following remarks:
The section is directed to securing the exhaustion of the relief in respect of a cause of action, and not to the inclusion in one and the same cause of action of different causes of action, even though they arise from the same transactions. The plaintiff although he is bound to include in his claim all the reliefs which he can claim in respect of the same cause of action is not bound to include all causes of action for which he may have a remedy against the defendant even though they may arise from one and the same transaction.
7. The same view was taken in Ram Karan Singh v. Nakchhed Ahir : AIR1931All429 by a Full Bench of this Court and it was held that the object of Order 2, Rule 2 was the prevention of the splitting up of one cause of action, and not to compel the plaintiff to seek all the remedies which he can claim against the same defendants on account of several causes of action in one and the same suit. In our opinion, a cause of action for possession would accrue to the plaintiff after he had obtained the rectification of the sale deed and not before. When he filed his first suit for possession, no cause of action for possession had accrued to him. The deed was uncertified and no relief for possession could be granted to the plaintiff. It may be that both the causes of action arose out of the same transaction; but in our opinion they were distinct and separate and therefore Rule 2, Order 2 cannot apply. In support of the view which we take, we may refer to some decided cases. In Krishnaji Babaji v. Sangappa Murigappa A.I.R. 1925 Bom. 398, the Bombay High Court held that in a suit for specific performance of a contract of sale though a claim for possession might be made it is not obligatory upon the plaintiff to make such a claim. under Section 54, T.P. Act, the contract for sale of immoveable property of itself creates no interest or charge upon the immoveable property and until the claim for specific performance is decreed in favour of the plaintiff, it cannot be said that he is entitled to possession, though for the sake of convenience, to avoid multiplicity of suits, it might be open to the plaintiff to make a claim for possession in the same suit. A similar view was taken in Keshavlal Sakhidas v. Amarchand Somchand A.I.R. 1933 Bom. 398, where it was observed that:
In a suit for setting aside a sale, though a claim for possession might have been made, it is not obligatory upon the plaintiff to make a claim for possession and a second suit for possession will not be barred by res judicata, or Section is of the old Code or Order 2, Rule 2, of the present Civil P.C. For though the two suits may arise out of the same transaction, they are in respect of different causes of action, the cause of action for possession arising only on the sale and sale deed being set aside.
8. Another ruling to which reference may be made is Krishnammal v. Soundararja Aiyer A.I.R. 1914 Mad. 465. In that case the plaintiff sued the defendants for specific performance of an agreement to sell certain immoveable property and had got a decree for the execution of a sale deed. After the execution of the sale deed, he instituted a second suit for the recovery of possession of the land. The plea taken was that the second suit was barred by Order 2, Rule 2, Civil P.C. The learned Judges who decided the case held that at the time the plaintiff brought the previous suit, the right to possession of the lands was not vested in him, as he acquired that right only on the execution of the deed of conveyance. The principle of the decision of that case is applicable to the case before us. The cause of action to claim a relief for possession accrued only after the rectification of the deed and as at the time of the institution of the former suit, the cause of action for that relief had not arisen, the suit was properly dismissed. In our opinion, the cause of action for rectification accrued when a mistake was made in the sale deed and a cause of action for possession would accrue after the rectification has been made. It is true that both the causes of action arose out of the same transaction; but they were, as we have already pointed out, quite distinct and separate. 'Where such is the case, it is open to the plaintiff to institute separate suits in respect of the reliefs for which causes of action are distinct and separate.
9. Learned Counsel for the appellants relied on two cases in support of his contention. In our opinion they can be distinguished. The first case relied on is Abdul Hakim Khan v. Karan Singh A.I.R. 1915 All 404. In this case, it was held that where a plaintiff knew what relief he was entitled to and deliberately omitted to claim the right relief, his subsequent suit in respect of the same cause of action for the right relief was held to be barred by the provisions of Order 2, Rule 2, Civil P.C. We wish to emphasize here the words 'in respect of the same cause of action'. The causes of action in the case before us are quite distinct as the two reliefs are not being claimed in respect of one cause of action. Similarly in Muhammad Hafiz v. Muhammad Zakariya A.I.R. 1922 P.C. 23, there was only one cause of action. Their Lordships of the Privy Council at p. 126 observed that:
If that cause enables a man to ask for larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings.
10. Discussing the question of cause of action, their Lordships of the Privy Council at p. 125 made the following observations:. What was the cause of action that the plaintiff possessed when the proceedings were first instituted? It was the cause of action due either to the fact that the interest had been unpaid for more than six months, or that the three years had elapsed, and the principal was also unpaid, and in either case they could have sued for realization to provide for the whole amount secured by the deed. The plaintiffs now purported to proceed under Clause 2 of the deed, but even in that case the non-payment of the interest was the sole cause upon which they were entitled to ask either for the limited relief that was sought or the larger relief which they abstained from seeking. It is also important to point out that the only relief that could be sought in both cases was realization of the mortgage security, for the mortgage was a simple mortgage containing no express covenant for the payment of the principal and the interest.
11. It appears to us that the decision of the case went against the plaintiff because it was found that the relief which had been claimed in the former suit and the relief which was being claimed in the second suit arose out of the same cause of action. In our opinion, therefore, these two rulings are not applicable to the case before us. We are, therefore, for the reasons given above, of opinion that although both the reliefs to which the plaintiff was entitled arose out of the same transaction, they were yet quite distinct and separate. There was one cause of action for the relief for rectification and that cause of action arose when a mutual mistake was made in the sale deed. Causes of action for the relief for possession, however, would arise if the deed had been rectified and they were, therefore, quite distinct and separate. The plaintiff could have, if he had SO chosen, instituted one suit claiming both the reliefs but it was not obligatory to do so. We, therefore, hold that the claim is not barred by Order 2, Rule 2, Civil P.C. As regards the plea that the present suit is barred by Section 11, Civil P.C., all that we need say is that it cannot be accepted. The previous suit of the plaintiff was dismissed on the ground that the plaintiff was not entitled to maintain a suit for possession without also praying for the rectification of the sale deed. At that time the plaintiff, in our opinion, was not entitled to maintain his suit for possession. No question was 'heard and finally decided' between the parties in the first suit, and therefore it cannot be said that the doctrine of former adjudication is applicable to the present case.
12. One more point remains to be decided. In para. 16, Clause (a) of the plaint, the plaintiff claimed the following reliefs : (1) Khata-khewat No. 2 may be noted in place of 'khata-khewat No. 1', necessary correction may be made in the sale deed, dated 5th July 1929 executed by the defendants in favour of the plaintiff. (2) The defendants may be dispossessed and possession may be awarded to the plaintiff over the 8 biswa 12 biswansis 13 kaohwansi, zamindari property in mauza Qayampur Baheriya, mahal Chain Sukh, patti Ratan Kunwar holding, entered in khewat as No. 2 with the exception of 47.83 acres of land, a detail whereof is given in the sale deed dated 5th July 1929.
13. One of the questions for determination before the lower Court was whether or not the plaintiff was entitled to ask for the rectification of the sale deed. The Court dealing with the first issue held that the instrument can be rectified. The learned Judge remarked:
Anyhow, the instrument can be rectified, no matter whether the wrong description was due to fraud or to mutual mistake and the point is not therefore material.
14. Thus it would seem that the Court below held that the plaintiff was entitled to have the deed rectified. In the concluding portion of the judgment, the learned Judge ordered that the plaintiff's suit for possession over the property sold under the terms of the sale deed be decreed. In the judgment the property over which the plaintiff was to get possession is correctly described. It is also correctly described in the decree which was prepared. But by an oversight the Judge did not say that the sale deed should also be rectified. It would seem that the learned Judge may have possibly thought that his remarks, when dealing with issue 1 that the instrument can be rectified and his mentioning in his judgment the correct description over which the plaintiff was decreed possession, would be quite sufficient and would amount to a rectification. In our opinion, the proper course for the Judge was that he should have also stated in his judgment while decreeing the suit for possession that the prayer for rectification was also granted. An application for amendment of the decree was made by the plaintiff-respondent in this Court. Learned Counsel for the appellants has objected to the amendment of the decree of the Court below and the question which we have to consider is whether this purely technical mistake made by the learned. Judge can be corrected by us in this Court. In our opinion, the appellate Court has ample powers to correct a mistake of this kind under the provisions of Rule 33, Order 41, Civil P.C., even though the respondent may not have appealed. This rule enacts as follows:
The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objections....
15. In the case before us we find that the learned Judge of the Court below held that the plaintiff was entitled to all the reliefs claimed by him. The plaintiff had asked for possession. The Court held that he was entitled to get that relief. The plaintiff had asked for rectification, The Court held that ha was entitled to that relief. When the plaintiff's suit for possession was decreed, he was decreed possession not over the property as mentioned in the sale deed incorrectly but over the property which had been agreed to be sold by the defendants to the plaintiff. The learned Judge in effect rectified the mistake in the sale deed by correctly describing in his judgment and the decree, the property sold. We have, however, already remarked that the order should have made a mention that the relief for rectification of the sale deed is also granted. In the above circumstances, we are of opinion, that the mistake can be rectified by us. For the reasons given above, the appeal stands dismissed with costs. We direct that the sale deed dated 5th July 1929 be rectified and the correct description of the property sold as given in para. 16, Clause (a) be substituted in it for the wrong description.