Rambilas Mahto v. Mahablr Mahto — 1996 DIGILAW 162 (PAT)

Judgment Gurusharan Sharma, J. 1. Kedar Mahto, father of opposite parties 9 to 11 herein, filed Partition Suit No.8 of 1959 in the court of Subordinate Judge, palamau at Daltonganj for partition of his share in the properties described in the Schedule to the plaint. The predecessors-in-interest of the petitioner as well as Oppositeparties 1 to 8 herein were defendants 1 and 2 as well as defendants 70 to 73 in the suit. The suit was decreed. 2. In the judgment and preliminary decree dated 26-7-1961 it was held that the plaintiff was entitled to the extent of one share out of 96 shares in all the other Khatas and 25 shares out of % shares in Khata No.20 ; whereas in another land defendant Nos.70 to 73 were entitled to 5 out of 96 shares. Defendants 70 to 73 the four daughters of Ramdihal Mahto were sisters among themselves and they jointly got 5 shares out of 96 shares in the disputed lands including Khata No.20. The trial court, therefore, observed Thus there is no evidence contrary to hold that these defendants 70 to 73 have no shares in the disputed lands and it must be held that these four defendants have got five shares out of 96 shares in the Khata in dispute including Khata No.20. . . . . . and that the plaintiff is entitled to partition to the extent of one share out of % shares in all the Khatas except in Khata no.20, in which the share of the plaintiff is 25 shares out of 95 shares and the plaintiff is entitled to a separate Takhta to the said extent and the defendants were never in possession by any private partition between the parties and that defendants 70 to 73 are also entitled to a separate Takhta to the extent of 5 shares out of % shares in all the Khatas in suit including Khata No.20 and that the remaining share shall form a joint takhta of the other defendants. " 3. None of the defendants preferred any appeal against the preliminary partition decree and he plaintiff took steps for preparation of final decree. Thereafter a Pleader, amin, Commissioner was appointed, who after preparing Takhtas submitted his report on 30-3-1967. Takhta No.18 was prepared for defendants 70 to 73. No Takhta was prepared for defendants 1 and 2. " 3. None of the defendants preferred any appeal against the preliminary partition decree and he plaintiff took steps for preparation of final decree. Thereafter a Pleader, amin, Commissioner was appointed, who after preparing Takhtas submitted his report on 30-3-1967. Takhta No.18 was prepared for defendants 70 to 73. No Takhta was prepared for defendants 1 and 2. Takhta No.19 contained the lands which were not partitioned and left joint for those co- sharers who were not allotted separate Takhtas. 4. By order dated 30-7-1967, the trial court directed the Commissioner fo prepare Takhtas also for other defendants without disturbing the Takhta prepared for defendants 70 to 73. On 10-4-1969 the Commissioner submitted his second report showing allotment of lands out of Takhta No.19 to defendants 11 to 13 vide Takhta No.20. 5. By order dated 8-7-1976 the trialcourt further directed the Commissioner to prepare Takhtas for the remaining defendants, if possible, without disturbing the existing Takhtas. On 26-9-1981 the Commissioner submitted his third report showing Takhta nos.21 and 22 prepared in the names of defendants 1 and 2 and Takhta Nos.23 to 39 in the names of other defendants. In this report, the Commissioner cancelled the Takhta, originally prepared in accordance with the preliminary decree, for defendants 70 to 73 And allotted those lands to defendants 1 and 2 and others, but inadvertently number of the takhta was wrongly mentioned as 19 instead of 18. The lands kept joint originally vide Takhta No.19 were allotted to different defendants. 6. In the said third and final report and entire suit lands were allotted kin 37 Takhtas. Defendants 70 to 73, who according to the preliminary decree were entitled to a separate Takhta of 5 shares out of 96 shares, were not allotted any Takhta and the Commissioner observed - "a perusal of the survey Khatian would show that Ramdihal Mahto, Chaudhuri mahto, and Baudh Mahto owned 75 shares in the Khatas under partition. Ramdihal mahto died about 50 years ago in a state of jointness with his brother Baudh mahto and his share devolved by survivorship on the joint brother Baudh mahto who came to own 10 shares and chaudhuri Mahto who was separate was left with his 5 shares on the death of baudh Mahto his two sons, Mangal Mahto and Pokhraj Mahto, defendants 1 and 2 owned the 10 shares left by their father. Subsequently Poktiraj Mahto, defendant no.2 sold his 5 shares in Khata No.20 to the plaintiff who got the purchase ratified by the preliminary decree. Simultaneously, bhuni Devi and her three sisters, defendant Nos.70 to 73, daughters of Dihal mahto managed to get a preliminary decree for 5 shares, in all the Khatas owned by their father even though they never came in possession thereof. This was achieved through Jagnarain Mahto, son of Mutari Devi, defendant No.72, who deposed to support the case of the plaintiff and thereby his purchase of 5 shares from Pokhraj Mahto, defendant No.2. If the preliminary decree in favour of the plaintiff is to stand then 5 shares in Khata 20 is not available for defendants Nos.70 to 73 in terms of the preliminary decree. If these defendants are allowed shares in khata No.20, other defendants will have to be deprived of their just share in Khata no.20 The fact is that defendant Nos.70 to 73 were never in possession of any land under partition, but while deposing for the plaintiff Jagnarain Mahto, son of defendant No.72 maneuvered to claim shares of defendants Nos.70 to 73 and indirectly for himself. This being so I have cancelled Takhta No.18 in the names of defendant Nos.70 to 73 and allowed 5 shares in all the Khatas except Khata No.20 to Mangal Mahto and Pokhraj Mahto, defendants 1 and 2, so as to reconcile the preliminary decree in favour of the plaintiff. " 7. By order dated 23-9-1982 the trial court confirmed the said third and final report of the Commissioner and thereafter the final decree was prepared, sealed and signed on 29-11-1983. 8. Defendant NO.4 levied Execution Case No.2 of 1986 for execution of the final decree. In the said execution proceeding on 25/26.11.1986, opposite parties 1 to 8, claiming to be the heirs of defendants 70 to 73 filed an application for amendment of the final decree, which was disallowed on 19-5-1987. Again on 1-9-1987 they filedanother petition to set aside the final decree which was also disallowed on 20-11-1987. 9. On 20-1-1988 on behalf of defendants land 2 a petition under Section 151 and 152 of the Civil Procedure code was filed for amendment in the report of the Pleader Commissioner dated 26-9-1981, which was allowed and in the body of the Appeal Schedule No.19 was corrected as 18. 9. On 20-1-1988 on behalf of defendants land 2 a petition under Section 151 and 152 of the Civil Procedure code was filed for amendment in the report of the Pleader Commissioner dated 26-9-1981, which was allowed and in the body of the Appeal Schedule No.19 was corrected as 18. Further, in the original Takhta No.18 the words "defendants 70 to 73" were deleted and defendants 1 and 2 were added therefor. 10. The heirs of defendants 70 to 73 opposite parties 1 to 8 herein thereafter filed objection under Sec.47 of the code in the said execution proceeding, which was registered as Misc. Case no.28 of 1988. They claimed that the final decree was not in conformity with the judgment and preliminary decree and it required amendment. By order dated 8-12-1989 the Executing court accepted their contentions, recalled the earlier order dated 27- 5-1988, allowed the objection and ordered the final decree to the amended in harmony with the judgment and the preliminary decree. The petitioner claiming to be the heir and successor of defendants 1 and 2 preferred Civilrevision No.16 of 1990 (R) in this Court, which was allowed on 11-12-1990 with observation that the Executing court had no jurisdiction to correct the final decree, which was said not to be in conformity with the preliminary decree. The proper procedure for a party aggrieved, in such circumstances, was to move the trial court in this regard. 11. Accordingly on 1-4-1991 the opposite parties 1 to 8 filed an application under Sections 151, 152 and 153 of the Code in the said Partition Suit No.8 of 1959 to amend the final decree, which according to them was not in conformity with the judgment and the preliminary decree. A rejoinder thereto was filed by the petitioner on 21-7-1992 and by the impugned order dated 4-10-1993 the trial court allowed the prayer. 12. The trial court observed - "from perusal of the case record I find that judgment in PS. No.8/59 was passed on 26-7-1961 against the contesting defendant Nos.70 to 73 and ex pane against the rest defendants. In para No.14 of the judgment it was held that the defendant nos.70 and 73 are entitled to a separate takhta to the extent of 5, shares out of 96 shares in all the Khatas of the suit land including Khata No.20. In para No.14 of the judgment it was held that the defendant nos.70 and 73 are entitled to a separate takhta to the extent of 5, shares out of 96 shares in all the Khatas of the suit land including Khata No.20. The remaining share shall form a joint khata to the other contesting defendants. From the case record it transpires that no appeal was filed against the judgment. The Pleader Commissioner carved out takhta No.18 in favour of the defendant nos.70 to 73 these defendants got five shares out of 96 shares in all the khatas of the suit land including Khata No.20. Final decree was prepared showing takhta No.18 in favour of defendant Nos.70 to 73. Later on the court rejected the prayer of the defendant Nos.70 to 73 to amend the final decree on 19-5-87 and 28-11-87 and on 27-5-88 allowed the petition of defendant Nos.1 and 2 and confirmed the Amin Commissioners report cancelling takhta No.18 allotted to defendant nos.70 to 73. Thus by his report dated 26-9-1981 the Amin Commissioner cancelled the takhta No.18 allotted to the defendant nos.70 to 73 which has created the crux of the problem. The Amin Commissioner should not haveacted beyond the spirit of the judgment dated 26-7-1961 which clearly speaks of the allotment of 5 shares out of 96 shares in all the suit Khata including khata No.20 In my opinion, the Amin commissioner has acted beyond the spirit of judgment and acted like appellate court. The Amin Commissioner cannot go beyond the judgment of the Court. He had no right to disturb the share of the defen-dant Nos.70 to 73. In the light of the report of the Amin Commissioner the Court wrongly ordered the insertion of the name of the defendant No.1 and 2 in takhta No.18 in place of defendant Nos.70 to 73. A final decree must be prepared in harmony with the judgment and preliminary decree of the court, otherwise a final decree contrary to the judgment and preliminary decree will mean setting aside the judgment itself. In the present suit defendant Nos.70 to 73 contested the suit and a separate takhta to the extent of 5 shars out of 96 shares was allotted to them but with a strokes of Amin commissioners pen the allotted takhta no.18 to the defendant Nos.70 to 73 was cancelled. In the present suit defendant Nos.70 to 73 contested the suit and a separate takhta to the extent of 5 shars out of 96 shares was allotted to them but with a strokes of Amin commissioners pen the allotted takhta no.18 to the defendant Nos.70 to 73 was cancelled. In the interest of justice it is therefore, expedient to allow the petitions of the heirs of defendant Nos.70 to 73 dated 1-4-1991 and the same is hereby allowed and the rejoinder petition of the defendant nos.1 and 2 dated 21-7-92 is hereby rejected. " 13. The petitioner has, therefore, preferred this Civil Revision application against the said order. 14. The only point raised by Mr. N. K. Prasad, Senior Counsel for the petitioner, is that no appeal having been preferred against the final decree any correction/amendment was not permissible to be made under Sections 151,152 and 153 of the Code in the said final decree in order to bring it incon-formity with the preliminary decree. 15. Section 151 of the Code lays down that nothing in the Code of Civil procedure shall be deemed to limit or otherwise effect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. Under the present Code, an application to amend a decree so as to bring it is conformity with the judgment must now be made to the court in exercise of its inherent powers under section 151 of the Code. Under Order xx Rule7 of the Code, it is the duty of the Judge to satisfy himself that the decree is in conformity with the judgment. This duty primarily rests with the court and not with any interested party and, therefore, the Court can do so even suo motu, or, on an application by any interested party, and, as such the application to amend a decree to make it in conformity with the judgment may be made and entertained by the court at any time. 16. The inherent powers of the court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and, therefore, the Court is free to exercise them for the purposes mentioned in Sec.151 of the code. 16. The inherent powers of the court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and, therefore, the Court is free to exercise them for the purposes mentioned in Sec.151 of the code. The only precaution is that such exercise may not be in conflict with the provisions of the Code. 17. It is well settled that where a decree does not agree with the express terms of the judgment, power of Courts can be exercised even when the decree is executed or extensively fully satisfied; inasmuch as the Court may be functus officio with respect to the execution of the decree, but not with respect to its power of correction. In Revo Mahto V/s. Delu Mahto AIR 1924 Patna 528 a Division Bench of this court held that a Court can amend itsrecord even after an appeal is brought, because court of law has authority over its own record. In my opinion, the trial court alone has the jurisdiction to amend its decree. In this view of the matter, the court below had complete jurisdiction to allow amendment of its decree. 18. In Papu Kha V/s. Fatima Babi and others AIR 1973orissa, 235 it has been held that where in dividing the properties according to the preliminary partition decree, the Commissioner committed some error and the Court, accepting the Commissioners report, passed the final decree and as a result thereof the allotment of the shares in the final partition decree was not done according to the preliminary decree the court can treat the application filed by the aggrieved party as one for review, dispose it of on merits and correct the final decree under Sec.151 of the Code. 19. In the present case, the admitted position is that in the judgment and preliminary partition decree the defendants 70 to 73 were granted 5 shares out of 96 shares and a separate takhta was directed to be prepared for them. Accordingly, in the first report dated 30-3-1967 the Commissioner prepared Takhta No.18 for them. 19. In the present case, the admitted position is that in the judgment and preliminary partition decree the defendants 70 to 73 were granted 5 shares out of 96 shares and a separate takhta was directed to be prepared for them. Accordingly, in the first report dated 30-3-1967 the Commissioner prepared Takhta No.18 for them. Subsequently, in the third report dated 26-9-1981 the Commissioner on its own, like an appellate authority modified the judgment and the preliminary partition decree dated 26-7-1961 and observed that if the preliminary decree in favour of the plaintiff was to stand then 5 shares in Khata No.20 was not available for defendant Nos.70 to 73. It was further observed that if defendants 70 to 73 were allowed shares in Khata No.20 other defendants would have to be deprived of their just share therein and cancelled Takhta No.18. 20. In my opinion, it was none of the business of the Commissioner to go into the rights/interests of the parties and to carve out Takhtas on his own judgment in the matter contrary to the decree of the Court. The Commissioner was simply required to make allotments and prepare Pattis for the parties according to their respective shares in the suit properties, strictly in terms of the decree. Under Order XXVI Rules 13 and 14 of the Code the Court does not abdicate its functions to the Commissioner. In the present case writ was issued to the Commissioner for effecting partition in terms of the preliminary decree. The Commissioner was thus not at all justified expressing his opinion about the interest/claims of the parties and make allotments beyond the terms of the preliminary decree. The aforesaid act of the Commissioner was, therefore, wholly illegal and without jurisdiction. 21. It further appears from order dated 23-9-1982 that the trial court failed to consider this aspect of the matter, while disposing of the objections to the Commissioners report and committed grave error in confirming such report and thereby drawing final partition decree contrary to the preliminary partition decree. 22. In the aforesaid circumstances, i do not find any reason to interfere with the impugned order. 23. In the result, this Civil Revision application is dismissed and the impugned order dated 4-10-1993 passed by the court below in Partition Suit No.8 of 1959 is confirmed. However, there shall be n o order as to costs. Revision Dismissed.