(1) This appeal arises From A. S. No. 40 of 1957 on the file of the court of the Subordinate Judge, Dindigul, which was tiled against O. S. No. 8 of 1957, on the file of the District Munsif Court, Dindigul. The defendant is the appellant herein. The facts are briefly as follows. One Sankaranarayana Pillai owned a block of land comprising of several survey numbers and extending in area, 111 acres and 34 cents. They were entered in patta No. 1349 in his name in the revenue records. On 22-7-1943, under the sale deed, Ex. B. 23, he sold 87 acres 28 cents out of the said block to two persons, Si Palamandi Thevar and Sa Palaniandi Thevar. Subsequently, a document Ex. 134 dated 23-8-1949 was executed by Sankaranarayana Pillai to the two vendees. Since the major controversy in the suit has arisen on account of Ex. B4 its purport has to be given briefly. It states that the entire 111 acres and odd (comprised in the block) were agreed to be sold for Rs. 3000 under Ex. B. 23 that by mutual mistake, 24 acres and odd, set cut in schedule B to Ex. 134, were omitted to be included in Ex. B. 23, that Sankaranarayana Pillai was executing the rectification deed Ex. B4 to right this mutual mistake and that 24 acres and odd also should he deemed as having been sold under Ex. B. 23. It also recites that the executant has simultaneously applied for transferring the B schedule properties from the patta number of the executant to the patta number of the vendees.
(2) This document was not registered. It is ground that purporting as it does, to be rectification deed consequent upon a mutual mistake, the document does not require registration for its validity. The claim of the two vendees was that ever since the date of the sale under Ex. B. 23, they really got into possession of the entire 111 acres and odd as vendees from Sankaranarayana Pillai. and that they were paying kist for the entire land including the 24 acres and odd. Sa. Palaniandi Thevar sold his half share in 87 acres and odd to one Ramaswami Naicker on 7-11-1951, who in turn sold it to the defendant on 24-10-1952. Si. Palaniandi Thevar sold, his half share in 87 acres and odd to the defendant on Sankaranarayana Pillai however proceeding on the footing that he was still entitled to 24 acres and odd gifted 5 acres and 13 cents out of it to the Boodan Committee, and by another deed dated 22-11-1954 settled the remaining 18 acres and 93 cents of the Secondary Education Committee of the Vellala Sangam who is the plaintiff in the suit.
The claim of the plaintiff was that in the sale deed dated 22-7-1943, only 87 acres and odd were sold and it was never intended to convey he balance of 24 acres and odd that when the two vendees tried to sell their lands to one Krishnaswami Chetti in 1949, the Vendee Insisted, on a conveyance of the whole block. Thereupon the two Thevars approached Sankaranarayana Pillai for a sale of 24 acres and odd. In order to save stamp duty a document was written up as if it was a rectification deed. It was in the contemplation of the parties to have the deed registered, but on account of a sudden calamity in Sankaranarayana Pillai's house, it vies not registered. When subsequently Sankaranarayana Pillai asked the Thevars to return the unregistered document, they told him that they had mislaid it. What the Thevars intended at the time of the writing of the deed was to take a sale of 24 acres and odd. for Rs. 1000 so that the Thevars could sell the entire block to Krishnaswami Chetti, realise the price from him and pay Sankaranarayana Pillai. The sale to Krishnaswami Chetti did not materialise and, therefore, the whole transaction fell through. Ex. 134 was never acted upon. The plaintiff therefore claims to have obtained title to the extent of 18 acres and odd from Sankaranarayana Pillai under the settlement deed Ex. A.1 dated 22-11-1954. Since the defendant trespassed upon ten acres and odd of the suit properties, and raised two crops thereon the plaintiff has come forward with the suit for declaration of title and recovery of possession. The suit was filed in 20-7-1955. After the filing of the suit, on 12-12-1956 under Ex. B. 30 the two Palaniandi Thevars sold the above 24 acres and 6 cents to the defendant.
(3) The plea of the defendant was that the actual sale to Palaniandi Thevars comprised 24 acres and odd also, that it was a mutual mistake to have omitted that extent in the sale deed that Ex. B. 4 was really a rectification deed regarding this document, that the title and possession remained with the two Palaniandi Thevars, that the defendant had obtained a valid title from Thin, and that the plaintiff had no title under the settlement deed in his favour.
(4) The trial court found that Ex. B. 4 was not invalid for want of registration, that the two Palaniandi Thevars had title to the disputed, property and that therefore the plaintiff's title had to fall. The suit was dismissed. The plaintiff's appealed. The learned Subordinate Judge came to the conclusion that the oral agreement between the parties at the time of Ex. B. 4 was to convey the 24 acres and odd for consideration to the Palaniandi Thevars, that this agreement was not fulfilled for the reasons given by Sankaranarayana Pillai, that the Thevars were enjoying the lands as waramdars under Sankaranarayana Pillai, and that they had no independent possession. The plaintiff's title was therefore affirmed, the appeal was allowed and the, suit was decreed. The second appeal was filed by the defendant.
(5) The question of law that was urged before me in the second appeal was that the plaintiff was not entitled to put forward a plea contrary to the recitals in Ex. B. 4 and that Ss. 91 and 92 of the Indian Evidence Act would be, attracted. As mentioned above, Ex. 33. 4 Purports to he a rectification deed stating that what was really sold under Ex. B. 23 was 111 acres and odd, that 24 acres and odd, were left out by mutual mistake, that this fact was being recorded in Ex. B. 4 and that at the same time the vendor was applying to the authority fox, transfer of patta for the 24 acres and odd in the names of the vendees in other words, the purport of the document is an agreement admitting the title of the two Palaniandi Thevars in 24 acres and odd on the basis of Ex. B. 23 itself and for the consideration stated in Ex. B. 23, and admitting that the omission to include these properties in Ex. B. 23 was due to mutual mistake. It is not a point of dispute raised before me that this document is defective for want of registration. The point of law urged, before amp, was that the plaintiff in attempting to make out that the agreement between the parties at the time of Ex. B. 4 was really one for the sale of 24 acres and odd for a consideration of Rs. 1000 would be debarred by Ss. 91 and 92, of the Evidence Act.
I consider that there is no substance in this contention. There is material difference between an attempt to show that the terms of a contract were different from those recorded in a deed, and an attempt to show that the contract as mentioned in the deed was not the real contract between the parties but it was something different. It is the former that is bit by S. 91 of the Evidence Act but the latter is not so hit. There is authority for this view. The Privy Council in Thyagaraja Mudaliar v. Vedathanni , observed.
'Section 92 Only excludes oral evidence to vary the terms of the written contract, and has no reference to the question whether the Parties had agreed to contract an the terms set forth in the document. The objection must therefore be based on S. 91 which only excludes oral, evidence as to the terms of a written contract. Clearly under that section, a defendant sued, as in the present case, upon a written contract purporting to be signed by him, could not be precluded in disproof of such agreement from giving oral evidence that his signature was a forgery.'
Again another decision of the Privy Council reported in Feroz Shah v. Sobhat Khan, 1933 65 MLJ 150. AIR 1933 F.G 178 forbade the admission or consideration of evidence as to the intention of the parties or to contradict the express terms of the document. When there is no dispute that the actual contract between the parties was the one recorded in the deed, it will not be thereafter open to the parties to let in oral evidence to prove that its terms were different from what is contained in the deed. Section 92 precludes such a course. When it is admitted that the actual contract between the parties has been. reduced to writing, oral evidence cannot be given to show that its terms were different from those found in the deed. S. 91 of the Evidence Act forbids such a course. But here the contention of the plaintiff is that he actual contract itself was different, and that for certain reasons it was made to appear in the document that it was a rectification deed. Section 91 does not preclude the plaintiff from proving that the real contract was different from what is found in the deed. I therefore answer the question of law raised accordingly.
(6) The rest of the allegations in the Memorandum of appeal traverse the findings of fact arrived at by the lower appellate court. It Is not open to me in the second appeal to reverse this finding of fact. I have carefully gone through the evidence as well as the arguments of the learned counsel on both sides. I find that the trial court rejected the plaintiff's version about the oral agreement between the parties and accepted the version of the agreement as recited in Ex. R. 4. For this purpose it relied mainly on the continued enjoyment of the properties by the Thevars, and payment of kist by them and also found that the evidence, given by Sankaranarayana Pillai as P.W. 1 that the Thevars enjoyed the disputed land as tenants under him was unsatisfactory. The lower appellate court, however, was Prepared to accept the evidence of Sankaranarayana Pillai which was also corroborated by the other witnesses an the plaintiff's side for accepting the version of the Plaintiff about the real nature of the agreement. It referred to the fact that though Ex. B. 4 recites that simultaneously a patta transfer application was being made, upto the date of settlement in favour of the Plaintiff the patta remained with Sankaranarayana Pillai. It accepted P.W. 1's evidence as to why Ex. B. 4 was not registered. It relied on t statement given by the Thevars before a panchayat and recorded in Ex. A. 2, for the purpose of upholding the plaintiff's version. The Panchayat arose because of a complaint to the police about cutting down trees on some of the disputed land by the defendant.
In Ex. A. 2, the defendant admitted that without correctly ascertaining the boundaries of his lands he had cut the trees on land belonging to Sankaranarayana Pillai and in his enjoyment. To explain away Ex. A. 2, the defendant put forward a theory that Sankaranarayana Pillai a literate and wordly wise man, had obtained the defendant's signature in Ex. A. 2 without reading out the contents to him. This version was disbelieved by the lower appellate court. It also relied on the circumstances that when the Thevars sold the properties subsequently, they purported to transfer only 87 acres and odd, and it was only after the present suit was filed that they sold the disputed property to the defendant who, in the circumstances, must be presumed to have purchased the property knowing of the dispute over it.
(7) On a careful consideration of the evidence I am of the opinion that it is a case where it will not be possible to hold that the conclusion of the lower appellate court as one on a point of fact, should be interfered with as an improper judgment of reversal for any of the reasons which the law considers appropriate in such circumstances. There was material on which the lower appellate court could base its finding. While on the one hand, a doubt way be entertained why the Thevars should pay the kist though patta is with Sankaranarayana Pillai and whether the version of the lease has been properly proved, on the otter, there is equally a grave doubt about the claim of the Thevars to have obtained possession of the land even thought they never attempted to get patta transferred to their names during a long period of 12 Years. It is also doubtful if Sankaranarayana Pillai a wordly wise man, would have meekly agreed to part with 21 acres and odd in 1949, six years after the date of the original sale deed, acceding to a claim of mutual mistake, and whether he would not have. In the above circumstances, tried to make a bargain, if the Thevars were to make a profit to themselves by selling not merely 87 acres and odd but also 24 acres and Odd. That he agreed to a rectification without stipulating for any pecuniary benefit for himself after such a long time had elapsed from the date of original sale deed, is a point on which reasonable doubt could arise.
(8) In view of the above, I do not think that interference with the finding of fact by the lower appellate court is called for. The appeal is dismissed. In the circumstances of the case there will he no order as to costs in this second appeal. No leave.
(9) Appeal dismissed.