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2011 DIGILAW 335 (ORI)

Aziza Iqbal Khatun v. Md. Anisuddin

2011-06-27

B.K.NAYAK

body2011
ORDER Heard learned counsel for the parties on admission. This writ petition is disposed of at the admission stage. Order dated 25.09.2010 passed by the Additional Civil Judge (Senior Division), Balasore in I.A. No. 29 of 2010 (arising out of T.S. No.53 of 1976-1 (F.D.) rejecting the petitioner's application under Sections 151 and 152 of the Code of Civil Procedure for correction of area of C.S. Plot No. 2644 in the final decree, has been challenged in this writ application. The undisputed facts are that in Title Suit No. 53 of 1976 preliminary decree for partition was passed and the total extent of land involved in the suit was described as Ac. 2l.95 dec. consisting of 7 plots including C.S. Plot No. 2644 comprising of an area of Ac. 4.48 dec. In the preliminary decree the petitioner-defendant No.1 got her due share. In the final decree proceeding, during the course of measurement of the suit property the Civil Court Commissioner found the actual area of C.S. Plot No. 2644 to be Ac. 4.86 and not Ac. 4.48 dec. Accordingly he prepared allotment sheet allotting Ac. 1.61 dec. out of C.S. Plot No. 2644 in favour of the petitioner. Neither party filed objection to the report of the Civil Court Commissioner, rather admitted the same and accordingly final decree was drawn up and thereafter execution cases were filed which are still pending. In the aforesaid background the petitioner filed an application under Sections 151 and 152 C.P.C. for correction of the final decree by reducing area of C.S. Plot No. 2644 from Ac. 4.86 dec. to Ac. 4.48 dec. Objections to the petition were filed by the present opposite party Nos. 3 to 5, who are the legal representatives of the deceased plaintiff, on the ground that neither any objection was raised to the report of the Commissioner nor any appeal has been filed against the final decree and that there being no accidental omission or arithmetical or clerical mistake with regard to area of plot No. 2644,it is not permissible to be corrected. The lower Court has rejected the petition by the impugned order. The lower Court has rejected the petition by the impugned order. It is contended by the learned counsel for the petitioner that the mistake in the area of C.S. Plot No. 2644 in the final decree must be considered to be a case of accidental or clerical mistake as it does not confirm to the area reflected in the preliminary decree and therefore it can be amended in accordance with the provisions of Section 152 C.P.C. It is his further submission that in the event it is found that the excess 38 decimals or part thereof in Plot No. 2644 is allotted to the present petitioner and if somebody in future .raises claim of title to the same, the petitioner would be deprived of his legitimate share in the suit properties. The learned counsel for the contesting opposite parties submits that there is no dispute that on measurement the Civil Court Commissioner found the area of C.S. Plot No. 2644 to be Ac. 4.86 and accordingly he prepared his report and submitted the same before the learned Court in the final decree proceeding and that neither party having raised any objection, the report was accepted and accordingly the final decree was drawn up which has reached finality inasmuch as no appeal has been filed there against. It is further submitted that the area of Plot No. 2644 reflected in the final decree is the actual area found by the Commissioner which was not known in the beginning. It was not an accidental error or clerical mistake' which the Court should correct in exercise of power under Section 152 of the Code of Civil Procedure. There is no dispute that the preliminary decree was passed showing Plot No. 2644 with an area of Ac. 4.48 dec. A preliminary decree in partition suit primarily relates to find out the legitimate share of parties in the properties in the suit, allotment of which is made during final decree proceeding. On measurement by the Commissioner in presence of the parties, Plot No. 2644 was found to be having an area of Ac. 4.86. This fact has been clearly mentioned in the Civil Court Commissioner's report. Accordingly allotment sheet was prepared by the Commissioner allotting Ac. 1.61 dec. in favour of the petitioner out of the said plot. On measurement by the Commissioner in presence of the parties, Plot No. 2644 was found to be having an area of Ac. 4.86. This fact has been clearly mentioned in the Civil Court Commissioner's report. Accordingly allotment sheet was prepared by the Commissioner allotting Ac. 1.61 dec. in favour of the petitioner out of the said plot. The petitioner did not raise any objection to the commissioner's report and the allotment sheet nor filed appeal against the final decree. As required in all cases, the Commissioner partitions the suit properties according to the availability of land at the spot as per the map after conducting measurement. Therefore, it cannot be said that the inclusion of Plot No. 2644 with area Ac. 4.86 dec. in the final decree is an accidental slip or clerical mistake. The trial Court has therefore rightly refused to correct the final decree. The grievance of the petitioner that she will be prejudiced and sustain loss in the event the excess area of the said plot or any part thereof is found to have allotted in her share and somebody else raises a claim to that, is a far fetched anticipation and the same cannot be taken into consideration for the purpose of deciding whether the final decree is necessary to be corrected in terms of Sections 151 and 152 of the C.P.C. Hypothetically, if the Civil Court Commissioner would have found at the spot an area less than Ac. 4.48 dec. on measurement of plot No. 2644, definitely the share of the petitioner in the suit property would have been proportionately reduced at the time of allotment. Therefore, the contention of the petitioner has no force. Learned counsel for the petitioner has relied on the decision of this Court reported in 1987 (I) OLR 651 (Janardan Naik alias Nayak and others v. Banamali Naik and others) and the decision of Apex Court reported in (2009) 1 SCC 510 (Omprakash Marwaha (dead) through L.Rs. and others v. Jagadish Lal Marwaha (dead) through L.Rs). Learned counsel for the petitioner has relied on the decision of this Court reported in 1987 (I) OLR 651 (Janardan Naik alias Nayak and others v. Banamali Naik and others) and the decision of Apex Court reported in (2009) 1 SCC 510 (Omprakash Marwaha (dead) through L.Rs. and others v. Jagadish Lal Marwaha (dead) through L.Rs). Perusal of those decisions show that in the decision reported in 1987 (I) OLR 651 the trial Court having omitted to give any share out of the mense profits though it granted 1/3rd share to the petitioners in the suit property, this Court held that it was an accidental omission which can be amended under the provisions of Section 151 and 152 C.P.C. Similarly in the aforesaid Apex Court decision it was held that where legal representatives of the deceased were already brought on record and granted relief, but subsequently it was found that their substitution in place of the deceased had not been allowed, it was held to bee technical and accidental act of the Court itself without touching the merits of the case and therefore, the same could be rectified by exercise of jurisdiction under Section 151 and 152 of the Code of Civil procedure. Neither of the aforesaid two decisions is applicable to the facts and circumstances of the present case, which are completely different as it is found that there is no accidental slip or clerical mistake in drawing the final decree. In the circumstances, I find no merit in the writ application, which is accordingly dismissed. Application dismissed.