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2012 DIGILAW 734 (GAU)

Moimona Nessa Bewa v. Hachina Khatun

2012-06-13

A.K.GOSWAMI

body2012
JUDGMENT A.K. Goswami, J. 1. This revision petition has been filed under Article 227 of the Constitution of India read with Sections 115 and 151, CPC challenging the Order dated 06.06.2011 passed by the learned Munsiff No. 1, Barpeta in Title Suit No. 330 of 2007. Heard Mr. A.R. Sikdar, learned counsel for the petitioners. Also heard Mr. B. Banerjee, learned counsel for the opposite party. As agreed to by the learned counsel for the parties, this revision petition is taken up for disposal at the admission stage. 2. The opposite party filed Title Suit No. 330 of 2007 in the Court of the learned Munsiff No. 1, Barpeta, praying for a decree of declaration for right, title and interest in respect of Schedule 'B' of the plaint and for khas possession of Schedule 'C' of the plaint, which is part of Schedule 'B', a decree to issue precept to the Revenue Authority for partition of 'B' Schedule land in favour of the plaintiff by appointing Amin Commission, to issue precept to the Revenue Authority for separate patta in respect of 'B' Schedule land and for a permanent injunction not to prevent the plaintiff from entering into Schedule 'C' land, etc. 3. The petitioners had submitted written statement alongwith the counter claim praying for, amongst others, dismissal of the suit of the plaintiff with costs, declaration that plaintiff has no right, title, interest and possession of 'B' Schedule land of the plaint, declaration that plaintiff's prayer for partition in respect of 'B' Schedule land is illegal, declaration that the grant of mutation in favour of the plaintiff on 11.10.1991 and 23.03.2005 is illegal, to send precept to the Revenue Authority to correct the record of the land, declaration of the defendants' right, title and interest and possession over the land prescribed in the Schedule to the counter claim measuring 1 Bigha 1 Katha and 16½ lechas of land. 4. The learned Trial Court framed the following issues: 1. Whether there is cause of action for the suit as well as for the counter claim of the defendants ? 2. Whether the plaintiff has right, title and interest over the Schedule 'B' land which is specifically described in the plaint? 3. Whether the plaintiff is entitled for the decree of khas possession of the Schedule 'C' land? 4. Whether the plaintiff is entitled for the relief as prayed for ? 5. 2. Whether the plaintiff has right, title and interest over the Schedule 'B' land which is specifically described in the plaint? 3. Whether the plaintiff is entitled for the decree of khas possession of the Schedule 'C' land? 4. Whether the plaintiff is entitled for the relief as prayed for ? 5. Whether the defendants have right, title interest and possession over 1 Bigha 1 Katha 16½Lachas of land covered by Dag No. 66 under patta No. 99? 6. Whether the sale deed Nos. 1662/84 1335/91 and 316/03 are illegal, null and void and inoperative in law? 7. Whether the mutation of the plaintiff dated 11.10.1991 and 23.03.2005 is illegal and void in law? 8. Whether the defendants are entitled for the decree as prayed for in their counter claim? 9. To what other relief or reliefs the parties are entitled for ?. 5. The plaintiff examined six witnesses and some documents were also exhibited. The defendants had adduced evidence of four witnesses and also exhibited some documents in support of their case. 6. The learned Trial Court, on consideration of the materials on record, found that the plaintiff has right, title and interest over the Schedule 'B' land. The learned Trial Court decided issue No. 5 against the defendants holding that the defendants have no right, title, interest and possession over 1 Bigha 1 Katha 16½Lechas of land covered by Dag No. 60 under Patta No. 99, which was the land described in the Schedule to the written statement-cum-counter claim of the defendants. With regard to issue No. 3, the learned Trial Court opined as follows: So, the plaintiff is not entitled for the khas possession of the Schedule 'C' land, but if there is any encroachment of the plaintiff's land by the defendants that has to be given to the plaintiff after proper demarcation at the time of partition, as the plaintiff has sought for relief of partition of her purchased land herein this case. Thus, this issue is decided partly in favour of the plaintiff. 7. In issues Nos. 4, 5 and 9 (should have been issue Nos. Thus, this issue is decided partly in favour of the plaintiff. 7. In issues Nos. 4, 5 and 9 (should have been issue Nos. 4, 8 and 9), which are issues relating to the factum of reliefs, the Trial Court stated thus: In view of what has been discussed in the foregoing issues, I am of the considered opinion that the defendants are not entitled for any relief as they sought for in their counter claim and on the other hand the plaintiff has right, title and interest over the Schedule 'B' land, which is specifically described in the plaint. But since there is no specific evidence that the plaintiff has been dispossessed from the Schedule 'C' land by the defendants, she is not entitled for khas possession of the same. But at the time of partition and demarcation of the plaintiffs land thereafter, if it is found any encroachment of the plaintiff land by the defendants that has to be given khas possession to the plaintiff. 8. The Trial Court, on the basis there of, passed the following order: The plaintiff has been able to prove her case partly and on the other hand the defendants are not able to prove their counter-claim. The plaintiff's suit is partly decreed and the defendants' counter claim is dismissed on contest with cost declaring that the plaintiff has right, title and interest over the Schedule 'B' land, which is specifically described in the plaint. But since there is no specific evidence that the plaintiff has been dispossessed from the Schedule 'C' land by the defendants, she is not entitled for khas possession of the same. But at the time of partition and demarcation of the plaintiffs land thereafter, if it is found any encroachment of the plaintiff's land by the defendants that has to be given khas possession to the plaintiff. 9. On 26.08.2010, the case record was put up with a report on the precept that had been received. The learned Trial Court directed the learned counsel to go through the report on the precept, fixing 16.09.2010. On 16.09.2010, taking note of the fact that no objection had been raised by the plaintiff side with regard to the report submitted on the precept, the learned Trial Court directed preparation of the final decree, which was prepared, sealed and signed on 16.09.2010. 10. Mr. On 16.09.2010, taking note of the fact that no objection had been raised by the plaintiff side with regard to the report submitted on the precept, the learned Trial Court directed preparation of the final decree, which was prepared, sealed and signed on 16.09.2010. 10. Mr. A.R. Sikdar, learned counsel for the petitioners submits that after the final decree was passed, on 21.09.2010, a petition was filed for correction of the final decree by the plaintiff/decree holder on the ground that the Revenue Authority had submitted partition papers before the Court without any remarks as to whether the plaintiff's land is encroached by the defendants or not and without making any demarcation of the plaintiff's land and that the same was overlooked by the plaintiff and therefore, by that petition, prayed for calling for a fresh report from the Revenue Authority in accordance with the preliminary decree. The learned counsel strenuously argued on the basis of the averments made in the revision petition that although the petitioners had filed objection to the petition, without fixing the case for objection hearing, the impugned order has been passed in gross violation of the principles of natural justice, whereby the final decree already prepared was expunged and direction was given to the decree-holder to take steps for a fresh precept with the further observation that fresh final decree would be prepared only on receipt of the report of the learned Deputy Commissioner. The learned counsel submitted that on the short ground, namely, for not affording a hearing to the petitioners, the case should be remanded back to the learned Court below for a fresh adjudication. The learned counsel further submits that in any view of the matter, the learned Court below could not have passed the impugned order in purported exercise of powers under Section 151 CPC. 11. Mr. B. Banerjee, learned counsel for the opposite party/decree holder, on the other hand, supports the impugned order and submits that apart from the plaintiff's counsel, the learned Court below also overlooked the apparent infirmity in the report of the Revenue Authority, which was not in consonance with the preliminary decree and therefore, no exception can be taken to exercise of the inherent powers of the Court by the learned Trial Court to correct the manifest error in the final decree. The learned counsel further submits that it is absolutely incorrect that no dates were fixed for objection hearing as contended by the learned counsel for the petitioners. The counsel for the petitioners were heard on 25.05.2011 and thereafter only, the order dated 06.06.2011 had been passed, he submits. 12. The petition in question was filed under Section 152 read with Section 151 CPC. The learned Trial Court rightly concluded that in exercise of powers under Section 152 CPC, the Court can correct only clerical errors. It has not been argued by the learned counsel for the petitioners that report submitted by the Revenue Authority at the first instance based on which the final decree was prepared, was in sync with the preliminary decree. What is contended is that it is not possible to correct the final decree and this is the stand taken in the written objection which was filed on 24.01.2011 against the petition under Section 151/152 CPC. 13. On going through the order sheet, it is found that on 19.05.2011, 25.05.2011 was fixed for hearing. It is also demonstrated by the order dated 25.05.2011 that both the parties were heard on the petition in question and therefore, submission of Mr. Sikdar that the counsel for the petitioners were not heard is factually not correct. 14. Order 20 Rule 18 CPC provides for passing of preliminary decree, if the partition or separation of immovable and movable properties cannot be conveniently made without further inquiry, declaring the right of the several parties interested in the property and giving further direction as may be required. Passing of preliminary decree pre-supposes declaring the right of the parties and the purpose of such a preliminary decree is to conduct further inquiry to effect partition or separation. In the instant case, plaintiff's right, title and interest has been declared by the learned Trial Court in respect of Schedule 'B' land. It has also been made explicitly clear in the judgment that if there is any encroachment of the plaintiff's land by the defendants, the same has to be given possession to the plaintiff after proper demarcation at the time of partition. The report of partition did not advert to the question as to whether any part of land of Schedule 'B' is under the possession of the defendants. 15. The report of partition did not advert to the question as to whether any part of land of Schedule 'B' is under the possession of the defendants. 15. There is also a duty cast on the Court at the time of passing a final decree. Obviously, in the instant case, a material aspect having a bearing on the relief granted to the plaintiff was overlooked. 16. In the facts and circumstances of the case, this Court is of the considered opinion that the learned Trial Court committed no material irregularity and also did not exceed its jurisdiction in exercising inherent powers under Section 151 CPC in passing the order dated 06.06.2011 to effectuate the purpose for which the preliminary decree was passed. 17. In view of the above, this application is dismissed. No costs. Application dismissed.