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1996 DIGILAW 201 (HP)

Suresh Kumar alias Nawang v. Chhering Rahi

1996-10-04

M.SRINIVASAN

body1996
JUDGMENT M. Srinivasan, C.J. 1. This revision petition is against an order of the Senior Sub-Judge, Lahaul and Spiti at Kullu dismissing an application under Sections 151 - 153 of the Code of Civil Procedure for correction of the judgment and decree dated 9-9-I987 passed in Civil Suit No. 91/84. The suit was filed by one Pama Namgial, predecessor in interest of the Petitioners for declaration against the Respondents that he was owner in possession of the lands set out in prayers (A), (B), (C), (CC) and (D). With regard to each prayer, he had claimed particular share in the lands mentioned therein. He also prayed for a consequential relief that any change by the Girdawar in the Girdawari of the said entries was not binding on him. The suit was contested by the Respondents on the ground that there was a prior partition in which the properties have been allotted to the Respondents and the Plaintiff could not claim any interest therein That case of the Respondents was found against in the judgment rendered in the suit and the Court decreed the suit on 9-9-1987 with regard to prayers (A),(B),(C) and (D) While doing so, the Court expressed the opinion that the land covered by prayer (CC) was also covered by prayer (A) and, therefore, it was redundant and as a consequence prayer in (CC) was rejected. In paragraph 11 of the judgment dealing with issue No. 2, the Court observed: Regarding prayer CC it was found that it is included in prayer A but has separately been shown in Ex. P-8 for Khata No. 4 min Khatoni No. 4 min. 2. Again in paragraph 13 dealing with issue No. 3, the Court said that the Plaintiff is owner in possession of the land comprised in prayers A, B and D and 1 /4th share of the land comprised in prayer C and that with respect to the land shown in prayer CC the land had already been included in prayer A and, therefore, the issue was decided accordingly. Ultimately, when a decree was passed by the Court, it was in favour of the Plaintiff only, with regard to prayers (A), (B), (C) and (D) With regard to prayer (CC), it was not granted on the footing that it was already included in prayer (A). 3. Ultimately, when a decree was passed by the Court, it was in favour of the Plaintiff only, with regard to prayers (A), (B), (C) and (D) With regard to prayer (CC), it was not granted on the footing that it was already included in prayer (A). 3. The conclusion of the Court that the land in prayer (CC) was part of the prayer (A) was erroneous. The mistake was found out by the Plaintiff and he filed an application on 28-3-1988 for amendment of the judgment and decree under Sections 151, 152 and 153 of the Code of Civil Procedure. He pointed out that the property in prayer (CC) was not the same, as that in prayer (A), but, it was the property in prayer (D), which was the same as in prayer (A). The application was contested and the Court below passed an order on 18-11-1991 dismissing the application. Though the Court found that the statement of the applicant before it was correct with regard to the error in the judgment, the Court held that it is not possible to grant the relief because as regards prayer (CC), there was no decision on merits and if the rectification of the judgment and decree was granted, as prayed for by the applicant, there will be a decree without any judgment in favour of the Plaintiff as regards the land comprised in prayer (CC). On the basis of such reasoning, the application was dismissed. 4. Subsequent to the order of the Senior Sub-Judge, the Plaintiff died on 20/21-1-1992. The Petitioners were legal heirs and as such, they have preferred this revision petition against the order of the Senior Sub-Judge. 5. On perusal of all the records, I find that the decree passed in Civil Suit No. 91/84, was based on a mistake in so far as it relates to prayer (CC) and prayer (D). There can be no doubt whatever that the properties which were the subject-matter of prayer (D) formed a part of subject-matter of prayer s A). It is seen that Khasra Nos. 45 and 47 are part of prayer (A) and the same Khasra Nos. are part of prayer (D) while prayer (CC) relates to some other land in Khata No. 10, Khatauni No. 10 Khasra Nos. 3 and 19. Hence, the judgment and decree are erroneous to that extent and have to be rectified. It is seen that Khasra Nos. 45 and 47 are part of prayer (A) and the same Khasra Nos. are part of prayer (D) while prayer (CC) relates to some other land in Khata No. 10, Khatauni No. 10 Khasra Nos. 3 and 19. Hence, the judgment and decree are erroneous to that extent and have to be rectified. Consequently, the judgment and decree will be amended by granting a judgment and decree in favour of the Plaintiff for the lands comprised in prayers (A), (B) and (C) With regard to prayer (D), no decree need be passed in favour of the Plaintiff, as it is already part of prayer (A). 6. However, the land comprised in prayer (CC) is not the subject- matter of the judgment or decree on merits. The Court below in view of the wrong impression that the land comprised in prayer (CC) was part of prayer (A) did not go into the merits of the contentions of the parties with regard to the land comprised in prayer (CC). Hence, that part of the suit remains undecided even on this date. Consequently, it is the duty of the Court to decide that part of the suit also on merits. 7. It follows, therefore, that the suit should be reopened and restored to file with regard to the land comprised in prayer (CC) only. The trial Court shall decide the suit with regard to the land in prayer (CC) on merits after hearing both the parties Both the parties are permitted to adduce additional evidence, if so advised with regard to the said properties, it is made clear that the suit has already been concluded with regard to other properties, which are the subject-matter of prayers (A), (B) and (C) and no part of the suit is reopened with regard to the same. The trial Court shall decide the suit with regard to the land comprised in prayer (CC) as expeditiously, as possible and preferably on or before 31st March, 1997. 8. The revision petition is accordingly allowed with the above directions. There will be no order as to costs. 9. Both the parties should appear before the trial Court on 11th November, 1996. Dasti copy on usual terms.