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2002 DIGILAW 884 (RAJ)

Doongar Singh v. The Board of Revenue

2002-04-29

D.N.JOSHI, N.N.MATHUR

body2002
JUDGMENT 1. - This Special Appeal under Section 18 of the Rajasthan High Court Rules is directed against the judgment of the learned Single Judge dismissing the writ petition in limine by order dated 28th August, 2000. 2. The adopted son appellant Doongar Singh filed a suit against his father under Section 43 of the Rajasthan Tenancy Act in the Court of Assistant Collector, Nagaur for partition of the Family property. The suit was dismissed by the trial court. The appeal was also dismissed by the Revenue Appellate Authority on the ground that a son cannot bring a suit for partition during the life time of his father. The plaintiff preferred a second appeal before the Board of Revenue. During the pendency of the appeal the defendant Jor Singh died leaving behind a widow and a daughter. The Board of Revenue noticed the fact as follows : "Jor Singh has expired and he had left behind a widow and daughter. All of them being heirs of Class I take equally in the share of the deceased father. The plaintiff's share is ⅓rd in the property. He is entitled to get land partitioned to the extent of ⅓." The Board of Revenue accepted the appeal and passed the preliminary decree in favour of the plaintiff holding that the land in dispute is an ancestral and the plaintiff has ⅓rd share in it. The Board of Revenue also directed the trial court to proceed with the finalisation of the partition and pass final decree in accordance with law. in October, 1999 i.e. after more than 7 years, an application was fled by the counsel for the appellant under Section 151 & 152 C.P.C. to make an amendment in Para 9 of the order dated 5.5.92 to the effect that instead of the sentence "The plaintiff's share is ⅓ in the property" be substituted by "plaintiff's share is ⅔rd in the property". A further amendment was sought in Para 10 by substituting "the share as ⅔" instead of ⅓". The learned Members of the Board of Revenue having read the order dated 5.5.92 arrived at the conclusion that the court was very much aware of the fact that what judgment was being delivered and what share should be of the applicant in the disputed property. The learned Members of the Board of Revenue having read the order dated 5.5.92 arrived at the conclusion that the court was very much aware of the fact that what judgment was being delivered and what share should be of the applicant in the disputed property. In the opinion of the Board of Revenue there was no ambiguilty in the order, which required a correction under the provisions of Section 151 & 152 C.P.C. The Board was conscious of the fact that the application before them was to correct a typographical or arithmetical error and not a review petition. The Division Bench of the Board of Revenue dismissed the application vide order dated 10.8.2000. The appellant approached to this Court by way of writ petition under Article 226 of the Constitution of India. The learned Single Judge noted the fact that the Board of Revenue rejected the application for correction of the judgment on two grounds namely (i) Gross delay of 8 years; (ii) On the merit also no error was committed. The learned Single Judge having found no infirmity in the order of the learned Board of Revenue, dismissed the writ petition. 3. Having read the order of the Board of Revenue and the learned Single Judge, we asked the learned counsel, the reason for filing the application under Section 151 or 152 C.P.C. after lapse of more than 7 years. The learned counsel without answering the query wants to take us to the fact of the case including the pedigree of the family etc. as if we are hearing a regular appeal against the order of the Board of Revenue passed on merit as back as in the year 1992. We are supposed to hear the matter patiently but at the same time while hearing the matter in special appeal at admission stage, we are entitled to be satisfied as to the ground of attack on which the appellant has failed before the two courts below. The broad question involved is as to whether in a partition suit the share given to the appellant can be substituted in the name of arithmetical or clerical mistake and in the same context what is the effect of delay in filing such application. The broad question involved is as to whether in a partition suit the share given to the appellant can be substituted in the name of arithmetical or clerical mistake and in the same context what is the effect of delay in filing such application. In order to grant a relief to the appellant on an application under Section 151 or 152 C.P.C. a question is required to be adjudicated as to whether the appellant is entitled to 1 /3 or ⅔ share in the subject property and there can be no doubt that such a adjudication cannot be made on an application under Section 151 or 152 C.P.C., as by no stretch of imagination it can said to be arithmetical or clerical mistake. This being the settled legal position of law, the Board of Revenue rejected the application under Section 151 or 152 C.P.C. Going to the merit of the case amounts to enlarging the scope on jurisdictional fact i.e. the scope of Section 151 or 152 C.P.C. Suffice it to say that in the garb of application under Section 151 or 152 C.RC., the appellant cannot be permitted to get the judgment of the Board of Revenue interfered to the extent it pinches him. It is not a matter of simple substitution of the words ⅔ share instead of ⅓ share. It is settled law that determination of extend of share in property is a matter of merit of case and not a clerical or mathematical mistake. Reference be made to decisions of Apex Court A.I.R. 2001 SC 2054, 2001 SCW 2146 and 2001 SCW 1006. It appears that appellant having found filing of review hopelessly barred by limitation, has invoked provisions of Section 151 or 152 C.P.C. as no limitation is provided for filing of such application. As a rule after the decree is passed the court becomes functus officio. The . same court can correct an apparent arithmetical or typographical mistake and nothing beyond that. In cases where limitation is not provided rule of latches is attracted. Both the courts have found appellant guilty of latches. On merit determination of share in property by substitution ⅔" in place of ⅓" cannot be granted on application under Section 151 or 152 C.P.C. as a clerical or arithmetical mistake. We failed to understand what sort of equity can be in favour of persons like appellant. Both the courts have found appellant guilty of latches. On merit determination of share in property by substitution ⅔" in place of ⅓" cannot be granted on application under Section 151 or 152 C.P.C. as a clerical or arithmetical mistake. We failed to understand what sort of equity can be in favour of persons like appellant. The adopted son like appellant has no sense of obligation towards father, widow mother and sister except to drag them in litigation to achieve his life time programme to grab the property. Father was dragged in litigation during his life time. After his death, the poor widow mother has been dragged in litigation from one court to another. The only crime that appears to be of deceased father and widow mother that at one point of time, rightly, wrongly or under pressure or other reasons, they adapted person like appellant. It is unfortunate that such frivolous litigations are still surviving. Our's is a small effort to put to an end to such litigation. The learned Single Judge has refused to interfere with the order of the Board of Revenue in exercise of powers under Art. 227 of the Constitution of India. We are not inclined to interfere with the matter in special appeal (Letters Patent Appeal). 4. We find no merit in the special appeal and the same is dismissed with cost.Special appeal dismissed - Judgement of Single Judge affirmed. *******