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2004 DIGILAW 517 (PAT)

Deo Kumar Sah v. Mahesh Pd. Rai

2004-05-07

V.N.SINHA

body2004
Judgment 1. Heard Sri Mahesh Narain Prabat onbehalf of the petitioner. No one appeared on behalf of the opposite party in spite of receipt of notice by them. 2. This civil revision application is directed against the order dt. 23.2.01 passed by the Subordinate Judge II, Chapra in Execution case no. 3/98 by which he has refused the prayer to amend the description and area of the land indicated in Schedule III of the plaint. Learned counsel appearing in support of this application has submitted that before filing of this suit another suit bearing Title Suit no. 100/75 was contested between Mostt. inri and Deo Kr. Sah, the plaintiff-petitioner. During the pendency of that suit a gift deed was executed by Mostt. inri in favour of opposite party nos. 5 and 6 herein. Later ignoring the contents of the said deed of gift, compromise was arrived at between the parties i.e. Most inri and Deo Kr. Sah in the earlier suit and the suit was decreed in terms of compromise under judgment and decree date. 6.8.1976. In terms of the compromise decree Schedule I and Schedule II lands came to the share of Mostt. Inri and Deo Kr. Sah respectively. Later opposite party nos. 5 and 6 sold a portion of land which was subject matter of the earlier gift in favour of opposite party nos. 1 to 4 vide sale deed dt. 6.8.76. Present suit was filed by Deo Kr. Sah for annulling the contents of the said sale deed and subject matter of that sale deed was included in Schedule III of the plaint of this suit. 3. Learned counsel for the petitioner submitted that there has been a typing mistake in the description of the plot number and area of the lands of the aforesaid Schedule III. As according to him there is descrepancy between plot area, recorded in Schedule III and the said sale deed dt. 6.8.76. Present application was filed by the plaintiff for correction of the aforesaid mistake. In support of aforesaid contention learned counsel has relied on the case of Mohinder Singh & ors vs. Teja Singh reported in AIR 1979 Punjab & Haryana 47 and submitted that mistake in the judgment and decree in a suit for possession occurring due to accidental slip by writing incorrect plot number and area should be readily corrected. In support of aforesaid contention learned counsel has relied on the case of Mohinder Singh & ors vs. Teja Singh reported in AIR 1979 Punjab & Haryana 47 and submitted that mistake in the judgment and decree in a suit for possession occurring due to accidental slip by writing incorrect plot number and area should be readily corrected. He also relied upon the judgment of the Hon ble Supreme Court in the case of Pratibha Singh and another vs. Shanti Devi Prasad and another reported in (2003)2 Supreme Court Cases 330 and submitted that if a suit for immovable property is decreed and the property could not be identified the defect in the court record caused by overlooking the provision contained in order 7 rule 3 and order 20 rule 13 CPC should be cured so as to ensure that the decree is executable. 4. In my view in the instant case as the mistake appears to be accidental as the lands which was subject matter of the earlier sale deed dt. 6.8.76 should have been included in Schedule III but on account of accidental slip could not be included as such with reference to the said sale deed the Trail Court should have allowed the application to correct the plot number and the area of Schedule III of the suit. Since the Trial Court has not permitted the aforesaid correction. I hereby set aside the impugned order and direct the Trial Court to permit correction of Schedule III land on the basis of the sale deed dt. 6.8.76. No cost.