JUDGMENT
1. This is a first appeal by Mt. Rani Kunwar defendant from an order of remand passed by the lower appellate Court. The suit was brought by Mahbub Baksh plaintiff, and he claimed Rs. 2,762-15-0 made up of Rs. 1,100,the consideration of two sale deeds by the defendant to him and the costs of litigation between the plaintiff and the zamindar Ganga Prasad. The two sale-deeds were executed by the defendant on 23rd February 1924 and 31st March 1924 in favour of the plaintiff. Each sale-deed purported to be of a plot of land 10 biswas in area, old number 1473, for the purpose of building a house. In the first sale-deed boundaries were given and in the second sale deed no boundaries were given. The plaintiff began to build his house and objections were made by Ganga Prasad, zamindar, and Ganga Prasad brought a suit against the plaintiff and a compromise was entered into with him by which the plaintiff admitted that the land on which he built his house was not the land which he purchased from the defendant Mt. Rani Kunwar but was land which belonged to Ganga Prasad. Accordingly the plaintiff took the land on a lease from Ganga Prasad.
2. The Court of first instance dismissed the present suit on the ground that the allegations of the plaintiff that the land had been demarcated by the agent of the defendant and shown to him were not true. The lower appellate Court, while upholding this finding of fact of the Court of first instance, has come to a contrary finding on issue 1 and has remanded the suit for disposal under the remaining issues and for determination as to whether the plaintiff is entitled to damages.
3. Issue 1 was whether the defendant was the owner in possession of the property sold by her to the plaintiff by means of the two sale-deeds dated 23rd February1924 and 31st March 1924 respectively. It is admitted that the defendant is a zamindar and owner of old plot 1473, area 87 bighas 11 biswas. This plot is barren land and there is no demarcation an the spot between it and old plot 1472 which is owned by the zamindar Ganga Prasad. The lower appellate Court has come to a finding of fact that on the western sides of plots 1473 and 1474 (lying to the south-east of plot 1473) there is a road. That road is not marked on the map Ex. 13, but the lower appellate Court made a local inspection and came to its finding of fact on its local inspection and on the evidence before it which was partly oral and partly documentary. It is not, therefore, open to us on second appeal to diner from this finding of fact.
4. It is further found as a fact by the lower appellate Court that the land on which the plaintiff built his house is situated to the west of that road or track, and also that there are two houses of Husain Baksh and of Karim Baksh which also lie to the west of that track and outside the old plot 1473 owned by the defendant.
5. The lower appellate Court finds that the defendant was not certain of the position of her plot and though as a matter of fact her plot lay to the east of the road, she was under the impression that it lay to the west of the road and under that impression she had given two small pieces of land both of which lie to the west of the road to Husain. Bakhsh and Karim Baksh to build houses and that the house of Husain Baksh was ready when the plaintiff bought his first plot of 10 biswas. The plaintiff also wanted to build a house to the south of Husain Baksh. Accordingly we find in the first sale-deed of 23rd February 1924 that the eastern boundary is given as "the limit of the land sold and the way," and the northern boundary is given as "the land sold and then the house of Husain Baksh."
6. According to these boundaries, the plot of 10 biswas sold lies to the south of Husain Baksh's house and to the west of the way or road and accordingly it does not lie within old plot 1473 which belonged to the defendant, In the next sale-deed a month later on 31st March 1924, the finding of fact is that the land sold was to the south of the first 10 biswas sold by the defendant. It is a fact that the second sale-deed did not give any boundaries, but apparently the parties did not consider it necessary, as the house of the plaintiff was then ready or in course of erection.
7. The finding, therefore, of the lower appellate Court is that the one bigha over which the house was built by the plaintiff and which was bought from the defendant did not belong to the defendant and that both parties were under a mistaken but honest belief that the land sold did belong to the defendant. The case, therefore, came under Section 20, Contract Act:
where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is void.
8. The remedy for the vendee would lie under Section 65 which lays down that when an agreement is discovered to be void, any person who has received any advantage under such agreement or contract is, bound to restore it. In the present case the claim of the plaintiff would legally be for return of the sale consideration in the two deeds.i.e., Rs. 1,100. There is nothing in the Contract Act, or any law which gives the plaintiff a right to claim any further damages except return of the purchase money, and the plaintiff is not entitled to any interest.
9. We consider, therefore, that the order of remand is a correct order and we dismiss this appeal from order. Under the circumstances of the case, as it arose from a mutual mistake, we consider that it will be fair if parties pay their own costs of this appeal.