J.P. Bajpai, J.
1. This second appeal is at the instance of the defendants against whom the claim of the respondent-plaintiff for possession and mesne profits has been decreed by both the Courts below.
2. The facts giving rise to this appeal are that on 27-6-1960, defendant No. 1 Rikhiram executed a registered sale deed in favour of the plaintiff for a consideration of Rs. 300/-. However, khasra No. 165/1 area 0.20 acres was described as the land sold. The case of the plaintiff was that the aforesaid description was under a mistake. What was actually intended to be sold and was sold was the land measuring 0.20 acres of khasra Nos. 81 and 82/2. According to the plaintiff, he was also placed in possession of these khasra numbers and not of khasra No. 165/1 as stated in the sale deed. After entering into possession, his name was also mutated on these khasra numbers and the defendant Rikhiram, despite notice, did not oppose the aforesaid mutation. Mutation had already taken place in December 1960. Thereafter, the plaintiff remained in peaceful possession of the aforesaid land for about 6 years. However, in November 1966, defendant No. 1 executed a sale deed in favour of defendant No. 2 purporting to sell 0.29 acres out of khasra Nos. 81 and 82. Defendant No. 2, after obtaining a sale deed dispossessed the plaintiff in November, 1966, and therefore, the plaintiff brought the present suit for possession immediately within 4 months, i. e. in March 1967.
3. The case of the defendant was that there was no mistake in the description. Sale of Khasra No. 165/1 itself was intended by the parties and the same was actually sold. The plaintiff was put in possession of the said khasra number and not of 81 and 82/2. Since the sale deed in favour of the plaintiff does not relate to the suit land, i. e. Khasra Nos. 81' and 82/2, his claim for possession cannot be decreed on the strength of the aforesaid sale deed. The story of dispossession was also denied. Both the parties leo evidence.
4. The Courts below, after due appreciation of the evidence, arrived at the following findings of fact:--
(i) That the plaintiff was actually placed in possession of Khasra Nos. 81 and 82/2 area 0.20 acres in pursuance of the sale deed executed in his favour on 27-6-1960.
(ii) That the plaintiff remained in peaceful possession for 6 years till November, 1966 without any objection from his vendor, defendant No. 1.
(iii) That mutation was accordingly done in respect of Khasra Nos. 81 and 82/2 and the plaintiff was shown as Bhumiswami of the same immediatelyafter the sale in December, 1960 and the revenue records continue to be so even up to the date of the suit.
(iv) That the defendant No. 1 did not raise any objection to the mutation as stated above despite being noticed by the Revenue Officers.
(v) That the mention of khasra No. 165/1 instead of 81 and 82/2 was by mistake.
(vi) That the subsequent purchase of the same land by defendant No. 2 from defendant No. 1 in 1966 was not bona fide inasmuch as on the date of purchase by the defendant No. 2, the plaintiff was already in actual physical possession of the suit lands and that he was being shown as Bhumiswami 'holder of the same in revenue records for the last 5 years.
5. In appeal before this Court following two points were pressed:--
(1) It was contended that without getting the sale deed Ex. P-l rectified by filing a suit, as contemplated under Section 31 of the Specific Relief Act, the plaintiff could not bring a suit for possession on the basis of title claimed to have been derived from the sale deed, Ex. P-l, in which there was no mention of the khasra numbers of the suit land;
(2) It was also urged that no evidence could be led or considered against the contents of the sale deed to show that something other than that stated in the sale deed was sold.
6. As regards the first contention, it would suffice to observe that once it is established that there was a mistake as to the description of the property in the sale deed, a third person, who being aware of such mistake and intending to take advantage of it, subsequently purchases that property from the original vendor, cannot plead that he acquired his right in good faith, in answer to a claim made by the first purchaser. Section 31 of the Specific Relief Act is an enabling section and the fact that it was not resorted to cannot deprive a purchaser of the rights conveyed to him by the sale deed in his favour. This was also the view expressed in Sheikh Barsati v. Sarju Prasad, AIR 1939 Oudh 10.
7. In the present case from the evidence on record, it is apparent that there was a mistake in the description of the land sought to be sold. Had it not been intended to sell Khasra Nos. 81 and 82/2, the plaintiff would not have been placed in possession of the same immediately after the purchase. The vendor would not have sat silent for a period of 6years and allowed the purchaser to remain in occupation of those khasra numbers instead of the khasra number shown in the sale deed. The vendor did not also raise any objection at the time of mutation of those khasra numbers in favour of the plaintiff on the basis of the sale deed. It was admitted that the vendor had notice of the mutation proceedings. It is borne out from the evidence on record that the mutation was done immediately after the purchase in December, 1960. The revenue records disclosed the plaintiff as Bhumiswami of those khasra numbers. The defendant No. 2 himself has stated on oath before the trial Court that before making the purchase, he had made enquiries about the position of the suit lands in revenue records. Under these circumstances, it is apparent that the defendant No. 2 was aware of the mistake in the sale deed and has purchased the same property again with the intention to take advantage of the mistake.
8. The second contention raised on behalf of the appellant is also of no avail. The Proviso 1 to Section 92 of the Evidence Act applies to the circumstances of the present case. 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. It could be shown by evidence that what was intended to be transferred and was actually sold was different from what the document described due to mistake. When a mistake is established, the deed can always be construed as if the mistake has been rectified in a suit brought for the purpose of Section 31 of the Specific Relief Act. However, this will be subject to the condition that the rights of the third party acquired in good faith should not be prejudiced thereby. As discussed above, the subsequent transaction in favour of the defendant No. 2 was not in good faith. Under these circumstances, the failure of the plaintiff to get the deed rectified will not extinguish his title to, the property which was actually sold to him but was not properly described in the sale deed due to mistake.
9. No other point was pressed.
10. This appeal, therefore, has no force and is accordingly dismissed with costs. Counsel's fee at Rs. 50/- if certified.