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2006 DIGILAW 3319 (PNJ)

Tilak Raj v. Baikunthi Devi

2006-08-18

S.D.ANAND

body2006
Judgment S.D.Anand, J. 1. In the present R.S.A. directed against the judgment and decree dated 7.6.1983 passed by the 1st Appellate Court, the following substantial questions of law were framed: a) If a suit is decreed on the basis of description of land in the jamabandi and it transpires that it was a case of part misdescription, whether the decretal of the previous suit would attract the bar of Order 2 Rule 2 C.P.C.? b) Where a land which became available for adjudication of claim between the parties, subsequent to filing of the previous suit, would it attract the bar of Order 2 Rule 2 C.P.C.? 2. The facts, as relevant for disposal of the controversy, are as under: 3. One Thakru, the common ancestor of the parties, had two sons, namely Mange Ram and Tilak Raj. The former was father of plaintiff-appellant Tilak Raj. Data Ram @ Datu, husband of Mst. Baikunthi was the other son. The property in suit was owned by and was in the possession of Data Ram who died on 23.2.1968, leaving his wife Mst. Baikunthi and his mother Mst. Radhi as natural and legal heirs. Mst. Radhi died on 13.9.1968. Before her death, she executed a registered will dated 30.4.1968 in favour of her son i.e. plaintiff-appellant. However, the land left by Data Ram was mutated in favour of Baikunthi on the basis of will dated 16.1.1968 which she produced before the Revenue Authorities. In order to establish his claim qua half share of the property willed in his favour by his mother Mst. Radhi, the plaintiff-appellant filed a civil suit on 28.8.1969. In that civil suit, Baikunthi set up a will purporting to have been executed by her husband in her favour on 16.1.1968. The suit was decreed vide judgment and decree dated 5.2.1976. The plea of plaintiff-appellant Tilak Raj, based upon registered will dated 30.4.1968, was upheld. The plea raised by Baikunthi on the basis of the will dated 16.1.1968 was negatived. 4. When execution was taken out by the plaintiff-appellant, it was found that no part of the decreed land bore khasra No. 25R/52 and that the correct khasra number was 26R/52. On that account, the possession of a part of the decreed land could not be delivered to the plaintiff-appellant. 5. 4. When execution was taken out by the plaintiff-appellant, it was found that no part of the decreed land bore khasra No. 25R/52 and that the correct khasra number was 26R/52. On that account, the possession of a part of the decreed land could not be delivered to the plaintiff-appellant. 5. Apart therefrom, certain land owned by Data Ram @ Datu had been acquired by the Fertilizer Corporation of India (for short to be referred as "FCI") during his life time. After his demise, a part of that land was reconveyed in view of the fact that the beneficiary under the acquisition i.e. FCI, found that a part of the acquired land was surplus. The plea, raised in the context, was that he had paid his share of the re-purchase amount and, thus, he had become owner of the re-purchased/reconveyed land to the extent of half share. 6. The plaintiff-appellant, thereafter, filed the present suit for a decree for declaration that he is owner in possession of the two parcels of the land aforesaid, as a co-sharer. Also sought, as a consequential relief, was a decree for the possession of that land. 7. Defendant-respondent, Mst. Baikunthi pleaded that the suit was barred by the provisions of Order 2 Rule 2 of the Code of Civil Procedure (hereinafter referred to as "the Code"). It was further pleaded that the plaintiff-appellant had no title whatsoever qua the property which she had re-purchased from the FCI. The plea raised thereby was that it was not a case of re-conveyance of the property, but a case of purchase of the property by Mst. Baikunthi when it was offered to her by the FCI. Further averment, in the context, was that it was she only who had paid the total re-purchase price to FCI and no part of it had been paid by the plaintiff-appellant. 8. The learned Trial Court recorded a finding that the bar of Order 2 Rule 2 of the Code was not attracted to the case inasmuch as the only remedy left to the appellant (in respect of the mis-described part of the decreed land) was the filing of the fresh civil suit. It was, otherwise, recorded that the plaintiff-appellant had not been able to prove having contributed his share of the re-purchased land. It was, otherwise, recorded that the plaintiff-appellant had not been able to prove having contributed his share of the re-purchased land. It was further held that the transaction regarding the transfer of land by the FCI to Baikunthi was not a case of re-conveyance but a case of re-purchase. 9. Though the learned First Appellant Court upheld the finding recorded by the Trial Judge to the effect that the plaintiff appellant had not been able to prove having contributed the re-purchase amount, it reversed the finding, that the suit was barred by Order 2 Rule 2 of the Code, by holding that the proper remedy available to the plaintiff-appellant was to resort to the provisions of Section 152 of the Code and a fresh suit (qua the mis-described part of the property) was not competent. 10. I have heard learned Counsel for the parties. Records have been perused. 11. Learned Counsel for the appellant relied upon T.M. Ramakrishnan Chettiar alias Mannor Krishnan Chettiar and Ors. v. G. Radhakrishnan Chettiar and Ors. A.I.R. (35) 1948 Madras 13 and Thaduvavl Venkatasubbamma v. Chatuvadi Venkata Subbamma to argue that a fresh suit in respect of the above indicated items of land was competent and that a resort to the provisions of Section 152 of the Code for obtaining relief was not feasible inasmuch as the present was not a case of correction of clerical or arithmetical error. 12. The plea raised is plainly untenable. In an absolutely similar matter, a Single Judge of this Court (H.S.Bedi, J. as his Lordship then was) had taken a view in Kartar Singh v. Harchand Singh and Ors. that a such like error can be rectified by resort to the provisions of Section 152 of the Code. In that case as well, the plaintiff had filed a suit for joint possession of 56 Bighas and 8 Biswas of land. The details of the land had been given on the basis of jamabandi for the year 1973-74. It was in the course of execution that it transpired that some of the khasra numbers mentioned in the decree and also the area thereof were incorrect. It further transpired that some khasra number which ought to have been excluded had, in fact, been included in the plaint; while certain other khasra numbers which ought to have been included had, in fact, been excluded. It further transpired that some khasra number which ought to have been excluded had, in fact, been included in the plaint; while certain other khasra numbers which ought to have been included had, in fact, been excluded. The plaintiff filed an application under Section 152 of the Code before the Trial Court on the plea that the mistake had occurred on account of the mistakes in the jamabandi which had been made available to him by the Revenue Authorities. The Trial Court dismissed the application holding that the correction applied for was not within the purview of Section 152 of the Code and it was not a case of clerical or arithmetical mistake. It was in view of those facts that the Single Bench upheld the validity of the resort to the provisions of Section 152 of the Code. The following observations made by that Court may be quoted for facility of reference: A reading of the aforesaid Section indicates that it deals with two kinds of situations (1) correction of clerical or arithmetical mistake in judgments, decrees, or orders and (ii) errors arising is those judgments, decrees or orders from any accidental slip or omission. Mr. Hemant Kumar Gupta seems to be right when he says that his case is covered under the second part of the Section inasmuch as that the errors in the plaint followed by the decree had been occasioned from an accidental slip or omission made at the time of drafting of the plaint on the basis of the incorrect jamabandi provided by the revenue authority. It is, therefore, apparent that this part of the Section deals with an error which is not at the instance of the Court, but could have been occasioned by some outside agency as well. It would be noticed that both the judgments cited by Mr. Gupta pertain to the correction of khasra numbers and the mistakes in the decree sheet had occasioned due to the fact that incorrect jamabandi had been provided by the revenue authority. The judgment cited by the learned Counsel for the respondents has, however, no bearing on the facts of the case in hand. Gupta pertain to the correction of khasra numbers and the mistakes in the decree sheet had occasioned due to the fact that incorrect jamabandi had been provided by the revenue authority. The judgment cited by the learned Counsel for the respondents has, however, no bearing on the facts of the case in hand. There can be no dispute with the proposition enunciated in the judgment that by taking recourse to Section 152 of the Code of Civil Procedure, the parties cannot get embodied in the plaint something which is an after thought, but that is not the situation here. There is no dispute regarding the identity of the land in question and the area has to be only incorporated in the decree sheet with its correct Khasra Number. 13. The judicial pronouncements relied upon by the learned Counsel for the appellant do not apply to the facts and circumstances of the present case. T.M. Ramakrishnan Chettiar alias Mannor Krishnan Chettiars case (supra) was based on entire different facts. In that case, the survey number of property in suit had been given as 1467. It was sought to be substituted by 1463 and 1466. That application had been filed by an assignee decree holder. It was further found that even when the original mortgagee found that the mortgagor had no title to property No. 1467, he had not taken any steps to get the relevant proceedings rectified. In so far as Thanduvavi Venkatasubbammas case (supra) is concerned, it too was based upon entirely different facts. The head note of that judgment appears to be slightly mis-leading. The correct facts are indicated in the judgment itself. That was a case in which a suit for partition had been filed by a next friend of the minor. Certain properties were omitted by mistake. On attaining majority, the minor filed another suit qua the properties which came to be omitted from the first suit. It was held that the minor was competent to file a fresh suit in view of the fact that the initial proceedings had been taken in the name of the minor by the next friend. The minor could not possibly be said to be bound by the mistake committed by the next friend representing him during formers period of minority. His locus standi to sue in his own right came into effect when he attained majority. The minor could not possibly be said to be bound by the mistake committed by the next friend representing him during formers period of minority. His locus standi to sue in his own right came into effect when he attained majority. He was entitled to disregard any proceedings which had been taken during his minority, if his interests had not been properly safe-guarded. 14. Thus, it is evident from the judicial pronouncement in Kartar Singhs case (supra) that the plaintiff-appellant could and should have taken legal recourse to the provisions to Section 152 of the Code. 15. In so far as the other part of the property is concerned, there also the plaintiff-appellant is not on a firmer footing. We need not go into the aspect of nature of that transaction i.e. whether it was a case of reconveyance or re-purchase in view of the fact that the property reverted to the estate of Data Ram before the first civil suit came to be filed. As per the facts proved on the file, that land reverted to the estate of Data Ram on 28.5.1969; whereas the previous suit came to be filed on 28.8.1969. Though the plea set up by the plaintiff-appellant that he had contributed his share of the re-purchase amount has been rightly negated by the Trial Court and also the first Appellate Court, even if it is assumed, for the sake of arguments, that the plaintiff-appellant did indeed contribute his half share of the re-purchase amount, it does not advance his case. It follows therefrom that the re-conveyance or re-purchase of the property on 28.5.1969 was to his notice. In that view of things, the omission to claim relief in respect of that part of the property was not in order and the filing of fresh suit in relation thereto would be barred by provisions of Order 2 Rule 2 of the Code. 16. I find myself in complete agreement with the view of the learned first Appellate Court on point of law and also the facts. The finding on substantial questions of law is, thus, as under: a) If a suit is decreed on the basis of description of land in the jamabandi and it transpires that it was a case of part mis-description, whether the decretal of the previous suit would attract the bar of Order 2 Rule 2 C.P.C.? Ans. Yes. The finding on substantial questions of law is, thus, as under: a) If a suit is decreed on the basis of description of land in the jamabandi and it transpires that it was a case of part mis-description, whether the decretal of the previous suit would attract the bar of Order 2 Rule 2 C.P.C.? Ans. Yes. Even in case of indicated/proved mis-description of a part of the suit property, the plaintiff-appellant could have only taken a recourse to the provisions of Section 152 of the Code to get the error rectified. This view is supported by Kartar Singhs case (supra). b) Where a land which became available for adjudication of claim between the parties, subsequent to filing of the previous suit, would it attract the bar of Order 2 Rule 2 C.P.C.? Ans. This question of law has been found to be infructous as it has transpired from the facts available on the file that the relevant part of the land in dispute became available for adjudication before the previous suit came to be filed. The detailed discussion in respect of this substantial question of law is mentioned in aforesaid paras. 17. In the light of foregoing discussion, this regular second appeal being devoid of force is ordered to be dismissed. The parties shall bear their own costs of the cause throughout in the peculiar circumstances of the case.