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Sita Ram vs Ram Sarup And Ors.

High Court Of Judicature at Allahabad|14 March, 1910


1. In the suit, out of which this second appeal has arisen, the plaintiffs-respondents prayed for a declaration of their right to a 3 biswa share in the village called Abhaipur and for a declaration that the defendant had no right whatever to the sir land appertaining thereto; that the right to sir land acquired by defendant appertained only to 2 biswa, 2 biswansis share of the village in question. The property originally belonged to Ghaus Mohammad Khan who executed a mortgage of 3 biswa of his share in favour of the ancestors of the plaintiffs, and subsequently mortgaged in favour of the defendant Sita Ram his entire 4 biswa, 2 biswansis share together with 129 bighas of sir. The plaintiffs instituted a suit on foot of the earlier mortgage for sale of the mortgaged property, and in execution of the decree obtained by them 3 biswa of the property was sold and purchased by the plaintiffs. Sita Ram then sued on loot of his mortgage and obtained a decree for sale of 1 biswa, 2 biswansis together with 129 bighas of sir. In this suit of Sita Ram the plaintiffs were impleaded as defendants. A decree was obtained for sale of 1 biswa and 2 biswansis and also of 129 bighas of sir and in execution of the decree the share in question was sold and purchased by Sita Ram. The plaintiffs applied to have their names recorded as owners of the sir and obtained an order for mutation in their favour. They then instituted the suit out of which this appeal has arisen. Their claim is that, notwithstanding that 3 biswas only was comprised in their certificate of sale and that the entire of the sir land was sold to Sita Ram, they are entitled to have it declared that Sita Ram has no right whatever to the sir land over and above the share appertaining to 1 biswa, 2 biswansis. In the decree for sale passed in favour of Sita Ram, the entire of the sir land is mentioned, and in the sale certificate the property purchased by Sita Ram is thus described, 1 biswa, 3 biswansis out of 4 biswa, 2 biswansis &c. haqiat with (mai) land 129 bighas and bagh &c." The Courts below appear to have come, to the conclusion that it was inequitable for Sita Ram to claim all the sit; that the parties were labouring under a mutual mistake in regard to the sir and that they were justified in setting right this mistake. The learned Subordinate Judge in his judgment says: "The equitable view is to correct the mistake under which parties have laboured, when 4 odd biswa haqiat with 129 bigha sir land was mortgaged to defendant, the meaning was that 129 bigha &c, sir land formed part of the 4 odd biswa haqiat and was not in addition to it." We are wholly unable to hold this view. It is clear that in execution of his decree 129 bighas of sir land were sold to Sita Ram and were included in the property purchased by him. This appears clear from the sale certificate. The Subordinate Judge was bound to interpret the decree, which was obtained by Sita Ram, as also the sale certificate according to the language to be found in those documents and was not justified in; assuming that the parties had made a mistake and in ignoring the terms of the decree. The learned District Judge fell into the same error as did the Subordinate Judge. He says : "I am not satisfied that the decree of 1892 can be interpreted as non-ambiguously bearing the interpretation which the appellant seeks to put upon it." We are of opinion that there is no ambiguity whatsoever in the terms of the decree of 1892. By that decree the I biswa, 2 biswansis of the haqiat was directed to be sold together with 129 bighas sir' land. 129 bighas of sir were sold and passed to Sita Ram under the sale as proved beyond any doubt by the decree and the sale certificate. We accordingly allow the appeal. We affirm the decrees of the Courts below as to the declaration that the 3 biswa share in mauza Abhaipur purchased by the ancestors of the plaintiffs and exempted from Sita Ram's claim belongs to the plaintiffs, and as to the rest of the claim of the plaintiffs, we dismiss it. The defendant-appellant will have his costs of this appeal including fees in this Court on the higher scale. As to the costs in the Courts below, we direct that the parties hear their own costs respectively.
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Sita Ram vs Ram Sarup And Ors.


High Court Of Judicature at Allahabad

14 March, 1910
  • J Stanley
  • Griffin