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Madhya Pradesh High Court · body

1976 DIGILAW 166 (MP)

Sheocharanlal v. Hansraj

1976-11-30

R.K.TANKHA

body1976
Short Note : 1. Having heard learned counsel of the parties, I am of opinion that the appeal has to be partly allowed. The contention of the learned counsel for the defendant No. 1 was that the lower appellate Court committed error in the exercise of its jurisdiction in invoking the powers under section 152 of the Code of Civil Procedure for amending the decree on the basis of the clerical mistake. According to the learned counsel the mistake which has been held as such could not have been a clerical mistake. The earlier decree which was passed by that Court was clear in all terms and there was no error which required correction. In my opinion the submission has no force. A perusal of the earlier decree passed by the lower appellate Court makes it very clear that the property which the plaintiff was held entitled for possession was described by a sketch map drawn in that decree itself showing the dimensions as well as boundary marks of that property. Within the dimensions a house "Makan Kaweloodar" was also shown in existence. But as per finding of that Court "Makan Kaweloodar" was demolished by the plaintiff after purchasing the same in order to raise a new construction. Therefore, showing of "Makan Kaweloodar" within the dimension of the said sketch map was undoubtedly a clerical mistake and crept in on account of the fact as it appears that at the time of drawing the sketch map the finding was lost sight of and it was prepared on the basis of warrant of possession in Civil Suit No. 277-A of 1930 when that house was in fact in existence. Therefore, I hold that the lower appellate Court was right in correcting the original decree passed by it to that extent. 2. But as regards mentioning of words "Jis Par Pakki Niv Wa Kua Bana Hai" instead "Makan Kaweloodar" in the sketch map was unwarranted the fact of dimension and the boundary marks being shown of the land, the plaintiff was held entitled for possession. That decree had become final in all respects since it was not challenged by either party before a higher Court. That decree had become final in all respects since it was not challenged by either party before a higher Court. The exact location of the plinth and the well is not known whether they are within the dimensions of the sketch map of the land to which the plaintiff has been held entitled or lying in the excess part of the claim for possession which stands dismissed. Even before there was no agreement on the point between the learned counsel appearing for the parties and also they were unable to fix location from the record of the case. In the circumstances, the lower appellate Court was not justified to further correct the original decree by mentioning about plinth and well. After correcting a mistake, it committed another mistake. Since the decree incorporated a detailed sketch map showing boundaries and dimensions of the land, which plaintiff was to get possession, I fail to understand the purpose of mentioning about the plinth and the well within that area. If the plinth and the well lay within the specified land in the sketch map of the decree it could not be disputed and was not done so as well, the plaintiff and now his legal representatives would certainly be entitled to get possession of them as well. But that cannot hold good if both or any of them exist outside the specified land. I, therefore, modify the amended decree by deleting "Jis Par Pakki Niv Wa Kua Bana Hai" by holding that the correction was wholly uncalled for and was not a clerical mistake if it did not find mention in the sketch map. To this extent, the exercise of power under section 152 of the Code of Civil Procedure on the part of the order of the lower appellate Court was based on the error in the exercise of its jurisdiction. Appeal partly allowed.