1. ' SARDAR SAID MUHAMMAD KHAN, J.--This appeal, by leave, has been directed against the judgment and decree of the High Court dated 23-12-1980, whereby the judgment and decree passed by the District Judge were affirmed and appeal was dismissed.
2. ' Brief facts giving rise to the present appeal are that the plaintiffs-respondents had a right of occupancy in land comprising Survey No. 795 measuring 61 Kanals 11 Marlas and land comprising Survey No. 794 measuring 73 Kanals 15 Marlas, situate in village Katehra Andrala, Tehsil Kotli.
3. According to the case of the plaintiffs-respondents, out of the land comprising Survey No. 794, they transferred the occupancy rights in the land to Abdullah and Saidullah, the predecessors-in- interest of the appellants, through a registered sale-deed dated 9-9-1953. Instead of transferring the possession of the land sold to the vendees, through mistake, they delivered the possession of land comprising Survey No. 795, measuring 61 Kanals and 11 Marlas to the vendees. It has been further averred in the plaint that they came to know about the aforesaid mistake one year prior to the institution of the suit. The plaintffs respondents sought a decree for the possession of the suit land on the basis of title and, in alternative, prayed that decree for possession, of the land measuring 21 Kanals 11 Marlas, which is in excess of the land sold by the plaintiffs, may be passed in their favour. The learned Sub-Judge dismissed the suit filed by the plaintiffs-respondents as being time-barred. On appeal to the District Judge, the learned District Judge came to the conclusion that evidence with regard to the fact that in fact the land sold to the defendants was in their possession was not admissible into evidence in view of the provisions contained in section 92 of the Evidence Act. The learned District Judge passed a decree for joint possession in favour of the plaintiffs-respondents to the tune of 21 Kanals 11 Marlas holding that the land sold to the defendants comprised of Survey No. 794 but they were in possession of land comprising Survey No. 795, measuring 61 Kanals 11 Marlas. The learned District Judge has opined that on equitable grounds the defendants are allowed to retain the possession of the land equivalent to land sold to them out of Survey No. 794, i.e. 40 Kanals. On appeal to the High Court, the learned Single Judge in the High Court came to the conclusion that in view of proviso (i) to section 92 of the Evidence Act, the evidence with regard to mistake regarding the terms of a document, envisaged in section 92 of the Evidence Act, was admissible but in his estimation or the defendants-appellants did not prove on the record that in fact the piece of land which was in their possession was sold to them and that parties were not under any mistake of fact as alleged by the plaintiffs. On the aforesaid reasonings the High Court confirmed the findings of the first appellate Court.
4. ' A preliminary objection was raised by the learned counsel for the respondents, Raja Imdad Ali Khan, that there being no memorandum of appeal before this Court, there was no appeal which could be heard and disposed of. His argument was that there was no prayer in the petition for leave to appeal to the effect that in case leave to appeal was granted, the petition for leave to appeal might be treated as memorandum of appeal. In reply, it has been contended by the learned ounsel for the appellants that although it has not been specifically prayed that the petition for leave to appeal may be treated as memorandum of appeal yet the same was so treated by the Registrar and was registered as such. He has further argued that both the parties subsequently filed the concise statements and as such the objection raised by the learned counsel for the respondents that there is no valid appeal before this Court is devoid of any force.
5. 'After giving our consideration to the matter we are of the opinion that mere non-mentioning in the petition for leave to appeal that petition may be treated as appeal, in case the leave is granted, is at the mos A an irregularity which is of no legal consequence and it stands cured after the petition for leave to appeal was treated as a memorandum o appeal by the Registry. Hence, the preliminary objection is overruled.
6. ' Now, the first point which needs determination is as to whether the evidence on the point that land in the possession of the defendants was sold to them is admissible in view of provisions contained in section 92 of the Evidence Act; and whether the parties negotiated the bargain about the piece of land which is in possession of the defendants, irrespective of survey number it had. An identical question has been subject of judicial consideration is various authorities wherein it has been held that in view of the proviso (i) to section 92 of the Evidence Act, any fact which would invalidate any document of which would entitle any person to a decree or order related thereto; such as fraud, intimidation, illegality or mistake of fact or law, can be proved. A reference may be made to a case reported as Sabhaji v. Nawalsingh and others AIR 1928 Nag. 4, wherein it was held that where th intention of a party was to sell a particular survey number but by mistake a wrong survey number was put in the sale-deed, the extrinsic evidence was admissible as to the circumstance which would show that survey number was wrongly mentioned in the sale-deed.
7. Identical view was also taken in case reported as Abdul Hakim Khan v. Ram Gopal AIR 1922 All.
8. 42.
9. 'Thus, we are of the view that evidence with regard to the mistake, if any, or evidence in rebuttal of any such evidence is permissible under the proviso (i) to section 92 of the Evidence Act.
10. ' The next point which falls for determination is as to whether there is any proof on the record that the land in possession of the defendants-appellants was not intended to be sold to them or that it was in excess of the area which the plaintiffs-respondents agreed to sell. It may be stated here that the sale-deed of the suit land in favour of Abdullah and Said Ullah was executed by one Muhammad Sherif acting as attorney for the plaintiffs-vendors. Raj Muhammad, plaintiff, in his statement has deposed that at the time of the bargain the land which was intended to be transferred to the defendants was demarcated and it was decided that the possession of the said demarcated area would be given to the defendants-appellants and consequently the possession of the same was handed over to them. Muhammad Sharif who had negotiated the bargain for the plaintiffs and had also executed sale-deed as their attorney appeared as witness for the plaintiffs and has stated that the land which was intended to be sold to the defendants was given into the possession of the defendants and that at the time of the negotiation about the bargain, the piece of the land was demarcated on the spot. In view of the statements of Raj Muhammad, one of the plaintiffs, and Muhammad Sharif who negotiated the bargain, executed the sale-deed as attorney for the plaintiffs and also transferred the possession after demarcation the boundaries of the land sold, it becomes crystal clear that irrespective of the fact as to the description of the property in the sale-deed, i.e. whether it was a part of Survey No. 794 or 795, the piece of land which is in possession of the defendants was sold to the defendants-appellants and its possession was delivered to the defendants-appellants after demarcating the boundaries on the spot.
11. ' Next question which needs to be resolved is as to whether the suit land is in fact comprised of Survey No. 794 or it is a part of land comprising Survey No. 795 and as to whether the land in possession of the defendants is in excess of 40 Kanals which was sold to them. It may be observed that according to the copy of Khasra Girdawari pertain ing to the years 1970 to 1974 A.D. the land measuring 40 Kanals out of Survey No. 794 has been shown in possession of Saida and Abdullah as vendees. However, there is a note on the Khasra Girdawari to the effect that on the spot the vendees were in possession of whole of the land comprising Survey No. 795; and that the mutation of the land comprising Survey No. 794 in favour of vendees, i.e. Saida and Abdullah was attested in their favour by mistake. This note neither bears any signature or date, nor it shows as to under what authority and by whom the said note was made. Thus, it was rightly held.by the first appellate Court that the said note being in violation of the relevant law was of no legal consequence. If the entries in Khasra Girdawari were incorrect, those could be only corrected in pursuance of the order of the Collector made after proper inquiry. It follows from this that according to the revenue record pertaining to years 1970-1974, the defendants-vendees have been shown in possession of land measuring 40 Kanals comprising Survey No.
794. It is not the case of the plaintiffs that the vendees have not been in possession of the land in dispute right since the year 1953, when the sale-deed was executed in their favour. Muhammad Siddique, a witness for the plaintiffs, has stated that land measuring 40 Kanals which was sold to the defendants-vendees was in their possession. This witness was not declared hostile by plaintiffs-respondents. In the revenue record, prepared after the year 1974, the copies of which are Exhs. P.E. and P.F., Said Ullah and Abdullah, vendees, have been shown in possession of the land measuring 25 Kanals 12 Marlas out of Survey No. 795 instead of land comprising Survey No.
794. It may be mentioned here that after the new settlement, as a consequence of use of different scales of measurement, the area of the land comprising Survey Nos. 794 and 795 has been shown lesser than the area which was recorded in the earlier revenue record. The land was allotted new Survey number as a result of the new settlement. It appears from the copy of Khasra Girdawari Exh.
12. P.E. pertaining to the year 1974-75 that the old Survey No. 795 has been bifurcated in four suvery numbers, namely, 1665, 1667, 1680 and 1669. The defendants have been shown in possession of land measuring 27 Kanals 15 Marlas out of Survey No. 1669. No evidence has been led to show as to how the defendants were shown in possession of the land comprising old Survey No. 795 instead of land comprising Survey No.
794. In the revenue record, prepared after the year 1974, it appears that the aforesaid change in the possession was probably the result of the aforesaid unauthorised note made by some unknown person on Khasra Girdawari, the copy of which is Exh. P.D. In view of the fact that it is the common ground between the parties that the defendants have been in possession of the same piece of land which was transferred to them right since 1953 and the fact that even according to the statement of Muhammad Siddique, a witness of the plaintiffs, the defendants are in possession of the land only to the tune of 40 Kanals which was sold to them; it cannot be said that land in the possession of the defendant-appellants is comprised of the old Survey No. 795 and not Survey No. 794; merely on the ground that the entries in the revenue record indicate the change of possession; which was probably made on the basis of the unauthorised note, already referred to.
13. The plaintiffs could have applied to the trial Court for the demarcation of the land on the spot and were in a position to prove that in fact the land in possession of the vendees-defendants was not only comprised of old Survey No. 795 but was in excess of the land sold to them i.e., 40 Kanals. In view of the above facts it cannot be said that the defendants were in possession of the land comprised of Survey No. 795 and their possession was in excess of the land sold to them.
14. ' The next point which falls for determination is that if for the sake of arguments it be assumed that in fact the land in possession of the defendants is comprised of old Survey No. 795, whether it would be a just ground to hold that title of the property which is in the possession of the defendants did not pass to the vendees-defendants because the description of the property has been wrongly given in the sale-deed. We are of the view that mentioning of wrong Survey number in the sale-deed is of no legal consequence in the instant case because as has been stated earlier that it is proved in view of the statements of Raj Muhammad plaintiff, Muhammad Sharif and Muhammad Siddique that in fact the land which is in the possession of the defendants-appellants was sold to them and before delivering possession, the boundaries of the piece of land sold were also demarcated on the spot. The description of the property in sale-deed in form of Survey number is merely for the identification of the property transferred. When both the parties, seller and buyer, are in agreement that the suit land, which was given in the possession of the appellants- defendants, was in fact sold to them and parties did not act under any mistake with regard to the identity of the land sold; the misdescription, if any, is of no legal importance. We are fortified in our view by some of the authorities mentioned below.
15. ' In Kesho Singh and others v. Roopan Singh and others AIR 1927 Allah. 355, it has been held that where Survey number at the time of property sold is not mentioned in the sale-deed by mistake out the vendor gets consideration and the sale is acted upon omission to mention Survey number would not defeat the title of the vendee in the property. It was further opined that vendee's title to the property, in such cases, cannot be challenged simply because the instrument has not been rectified within three years from the date of discovery of the mistake by the vendee. It was further held that it is always open to the vendee, if his title is challenged by the vendor, to show that there was only a mistake in the instrument and that as a matter of fact the property in his possession was intended to be transferred to him, the vendee is entitled to lead oral evidence to show mistake in the instrument.
16. ' In Nand Lal v. Ghulam Ahmed & another AIR 1937 Lah. 940, it was held that where there is discrepancy between the area and the boundaries of piece of land transferred, the boundaries should be taken as criterion for determining the property actually conveyed.
17. ' In Pannalal v. Bhaiyalal AIR 1937 Nag. 281, it was held that where there is a substantial description of property such as by boundaries, such descriptions must prevail over the measurement in the deed or conveyance for ascertaining the intention of the parties.
18. 'The next question which needs determination is as to whether the suit filed by the plaintiffs was within the period of limitation in view of the averments made in the plaint. It has already been pointed out that the sale-deed in favour of predecessors-interest of the defendants was executed in the year 1953 while the suit was instituted in the year 1971, after a period of 18 years. According to the statement of Raj Muhammad, one of the plaintiffs, they came to know about the mistake about five to six years after the execution of the sale-deed. It means that according to the plaintiffs' own case, they become aware of the alleged mistake at the most in the year 1959. Thus, they could institute the suit within a period of three years under Article 96 of the Limitation Act, i.e., before the years 1962, but they filed the suit in the year 1971. Obviously, the plaintiffs' suit is hopelessly time- barred.
19. ' In the light of what has been stated above, we accept the appeal with costs, set aside the judgments and decrees of both the appellate Courts below and dismiss the suit filed by the plaintiffs respondents.