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2013 DIGILAW 986 (PAT)

Rajeshwar Rai v. Meera Kuamri

2013-08-12

CHAKRADHARI SHARAN SINGH

body2013
ORDER Heard Mr. Partha Sarthy, learned counsel for the petitioner and Mr. P. N. Shahi, learned senior counsel appearing on behalf of respondents Nos. 1 to 3 and 38. 2. The question which has been raised in the present application under Article 227 of the Constitution of India is as to whether a final decree, in any circumstance, be at variance with the judgment of the court in a partition suit, if an apparent clerical mistake is detected in the judgment in course of preparation of final decree by the court. 3. The petitioner was defendant No.5 before the court below. Respondent 1st set claim to have purchased the share of Jogmaya @ Yogmaya Devi (original respondent No.40, since deceased) during the pendency of partition suit and have, in that capacity, been impleaded as intervener defendants in the court below. In a Final Decree proceeding respondent 1st set file an application dated 19.08.2006 of carving out patti of lands purchased from the said Jogmaya which has been allowed by an order dated 28.02.2009 in Final Decree No. 106/70 by learned Sub-Judge I Samastipur. The said order dated 28.02.2009 is under challenge in the present application under Article 227 of the Constitution of India on the ground that no share has been allotted to Jogmaya in the preliminary decree and no share can, therefore, be allotted in final decree proceeding as it will be at variance with the judgment. 4. The facts of the case are not in dispute. 5. A partition suit being P.S. No. 106 of 1970/ 39 of 1980 was filed by the plaintiffs for partition of their share in the suit land. The petitioner herein is plaintiff No.5 in the said suit. By judgment dated 31-03-1984 passed in the said partition suit, learned 2nd Additional Sub Judge, Samastipur decreed the suit on contest with cost against the defendants. A preliminary decree was drawn up on 21.04.1984 accordingly. 6. Jogmaya @ Yogmaya Devi (since deceased) originally arrayed as respondent No.40 in the present application was not a party to the said Partition Suit No. 106 of 1970. Vide order dated 07.12.1976, an application filed on her behalf for intervention was allowed and she ordered to be added as intervener/ defendant No.4 in the said suit. 6. Jogmaya @ Yogmaya Devi (since deceased) originally arrayed as respondent No.40 in the present application was not a party to the said Partition Suit No. 106 of 1970. Vide order dated 07.12.1976, an application filed on her behalf for intervention was allowed and she ordered to be added as intervener/ defendant No.4 in the said suit. Inspite of the fact that Yogmaya Devi was impleaded as a party, her name did not figure in the judgment or the decree passed by learned trial court. It appears that respondents 1st set to the present application under Article 227 of the Constitution of India, filed a petition for a direction to the Pleader Commissioner, before the court below, for carving out separate patti in their favour on the basis that they had purchased land measuring 4 katha and 10 dhurs through two registered sale deeds dated 08.12.2003 from said Jogmaya. They sought for their addition as party in the final decree proceeding. By an order dated 08.04.2005, the application for their impleadment was allowed by the court below. As regards the other prayer, to carve out separate patti on the basis of sale deeds in their favour, the court below declined observing that they would be entitled to get it from patti of their vendor Yogmaya Devi. A civil revision petition against the said order dated 08.04.2005 came to be rejected by this court vide order dated 22.02.2006 passed in C. R. No. 1215/2005. Another petition was filed on behalf of respondents 1st set before the court below, that is, purchasers from Yogmaya Devi, to carve out the patti of lands, as detailed in schedule-1 of the petition. The prayer has been allowed by order dated 28-02-2009 whereby the court below has directed the Survey Knowing Pleader Commissioner to carve out share of the applicants from patti of Yogmaya Devi. These facts have been taken out from the pleadings of the present writ application. 7. The main contention, which has been raised on behalf of the petitioner in the present application, is that in the judgment passed by learned trial court dated 31.03.1984, no share was given to Jogmaya @Yogmaya Devi and, therefore, no share could be carved out in favour of Jogmaya @Yogmaya Devi on the basis of the said judgment. 7. The main contention, which has been raised on behalf of the petitioner in the present application, is that in the judgment passed by learned trial court dated 31.03.1984, no share was given to Jogmaya @Yogmaya Devi and, therefore, no share could be carved out in favour of Jogmaya @Yogmaya Devi on the basis of the said judgment. Secondly, it has been argued that any transfer made by said Yogmaya Devi during the pendency of the suit to the interveners/ defendants/ respondents 1st set is hit by doctrine of lis pendens. 8. A counter affidavit has been filed on behalf of contesting respondents 1, 2, 3 and 38. Paragraph 8 and 9 of the said counter affidavit reads thus:- “8. That, however, the suit in question was decreed ex-parte. However, in ignorance of order dated 7.12.1976, the name of Jogmaya Devi @ Yogmaya Devi did not find mention either in the plaint or in the preliminary decree which was passed on 21.04.1984. 9. That subsequently, at the instance of the answering respondents in an application filed under Section 151 and 152 of C.P.C. on 11.6.2004 and the rejoinder filed thereto by decree holder on 27.7.2004, by order dated 17.12.2004, the learned Trial Court in course of final decree proceeding ordered for addition her name in the plaint as also in the preliminary decree in terms of earlier order passed on 7.12.1976.” 9. Learned senior counsel appearing on behalf of these respondents has contended that the petitioner himself has admitted the fact that Yogmaya Devi belonged to the family of plaintiffs/ defendants first party and has referred to the interlocutory application being I.A. No. 6478 of 2009 filed in Civil Revision No. 643 of 2009 which came to be converted into an application under Article 227 of the Constitution of India numbered as CWJC No. 6099/2013 (the present application). In the said application the petitioner admitted that Yogmaya Devi, who died on 16.12.2003, was widow of a of pre deceased son of Late Sone Lal Rai whose other sons were there on record. It has been specifically contended that the fact that Yogmaya Devi was wife of pre deceased son (Late Batuk Rai) of Late Sone Lal Rai is admitted and, therefore, share in her name has to be carved out during the final decree. Referring to the impugned order dated 28.02.2009 Mr. It has been specifically contended that the fact that Yogmaya Devi was wife of pre deceased son (Late Batuk Rai) of Late Sone Lal Rai is admitted and, therefore, share in her name has to be carved out during the final decree. Referring to the impugned order dated 28.02.2009 Mr. Shahi, learned senior counsel, has submitted that the court below has taken into account various earlier orders passed by the court and observed finally that all claims and counter claims relating to the suit land would be taken up and decided at one time. He has submitted that the impugned order does not require interference by this court, in the facts and circumstances of the case. 10. From the facts narrated above, which are not in dispute, it is clear that non inclusion of the name of original respondent No. 40, Jogmaya @ Yogmaya Devi (since deceased) in the preliminary decree, prepared on the basis of judgment dated 31.03.1984, was a result of clerical mistake inasmuch as though she came to be impleaded as party defendant in the suit before the court below vide order dated 07.12.1976, her name, however, could not be incorporated in the cause title of the plaint pursuant to the said order dated 07.12.1976. Such mistake remained in the judgment and preliminary decree also. By an order dated 17.12.2004 the court below corrected the mistake by directing inclusion of her name in the decree as intervener-defendant No. 25. 11. In the present case, power of the court below to vary the preliminary decree in course of final decree proceeding needs to be examined with reference to Sections 151, 152 and 153 of the Code of Civil Procedure (in short the Code) and the Supreme Court judgments reported in (2011) 6 SCC 462 ( Prema v. Nanje Gowda & Others) as well as (1991) 3 SCC 647 ( S. Sai Reddy v. S. Narayana Reddy), reliance upon which has been placed by learned senior counsel appearing for the contesting respondents. 12. Section 151 of the Code enables the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. 12. Section 151 of the Code enables the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Section 152 of the Code confers power upon the courts to correct at any time any clerical or arithmetical mistake in the judgments, decrees or orders or errors arising therein from any accidental slip of omission. Section 153 of the Code confers power upon the court to amend any defect or error in any proceeding in a suit and provides that all necessary amendments shall be made for the purpose of “determining the real question or issue raised by or depending on such proceeding”. 13. The stage when a partition is complete after passing of the judgment and preliminary decree has been considered by the Supreme Court in the case of S. Sai Reddy v. Narayana Reddy (supra) where the court held that unless and until a final decree is passed and allottees of the shares are put in possession of the respective property, the partition is not complete. It further held that pending the final decree, the shares themselves are liable to be varied on account of intervening events. The Supreme Court in that case was considering a statutory change by the introduction of Section 29-A in the Hindu Succession Act during the pendency of final decree proceeding, that is, after passing of the preliminary decree and before preparation of final decree. The Supreme Court in such circumstances, in the above noted case, held that the trial court was bound to implement the statutory rights conferred on the daughters even after passing of the preliminary decree. The Supreme Court in paragraph 7 of the judgment held as follows:- “When a suit for partition is filed in a court, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of intervening events. 14. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of intervening events. 14. The court further held that a preliminary decree which merely declares shares, which are themselves liable to change does not bring about any irreversible situation. 15. The Supreme Court in case of Prema V. Nanje Gowda & Others (supra) relying upon the said judgement in the case of S. Sai Reddy v. Narayana Reddy held that in a partition suit a preliminary decree can be varied in the final proceedings depending upon the facts and circumstances. 16. In the present case, in view of the facts noted above, there can be no dispute over the fact that original respondent No.40, namely, Jogmaya @ Yogmaya Devi was entitled for her share in the joint family property. The facts, as stated above, indicate that her name was wrongly left out in the preliminary decree initially which was subsequently corrected by the court order dated 08.05.2004. This correction has attained finality as a Civil Revision petition filed against the said order dated 08.05.2004 has been dismissed by this court vide order dated 22.02.2006. 17. The plea raised on behalf of the petitioner that no share could be carved out in favour of Jogmaya @ Yogmaya Devi cannot be accepted. In my opinion, the court below has rightly ordered for carving patti in the name of Jogmaya @ Yogmaya Devi by the impugned order. For the same reason, the application filed by the purchasers from Jogmaya @ Yogmaya Devi for their impleadment as party to the final decree proceeding has rightly been allowed by the court by the impugned order, as, being transferees pendente lite they are required to be on record so as to protect their interest. For the reasons above, I do not find any infirmity in the impugned order. This writ application is, accordingly, dismissed.