M. K. SOUMINI W/O LATE RAGHAVAN A. v. VS M. K. SREEDHARAN S/O KUNHIRAMAN
2017-01-10
ANU SIVARAMAN
body2017
DigiLaw.ai
ORDER : 1. This Civil Revision Petition is filed challenging the orders passed in I.A. No. 606 of 2016 in I.A. No. 1277 of 1985 in O.S. No. 19 of 1983. This I.A. was filed seeking to correct the mistakes in the Razi petition, final decree and connected records. The corrections sought for thereon reads as follows: xxx xxx xxx xxx xxx 2. It is submitted that the revision petitioner is the plaintiff and the fourth respondent is the fifth defendant in I.A. No. 606 of 2016 in I.A. No. 1277 of 1985 in O.S. No. 19 of 1983. It is submitted by the learned counsel for the revision petitioner that the correction in question was to be made in respect of the shares of the revision petitioner and the fourth respondent herein. It is submitted that in the nature of the correction sought for, it was not necessary to serve notice to all other parties in the partition suit. It is further submitted that the documents which are produced as Annexures A2 to A10 in I.A. No. 2943 of 2016 would reveal the fact that the corrections sought for in the I.A. were only in the nature of clerical mistakes, which had occurred while preferring the compromise petition before the court below and which was carried over in the final decree. 3. By the order under challenge, the court below recorded that the corrections sought for are of Re-survey number, amsom, desom, description and measurement etc. of item no. 2 in the Razi petition and Final Decree; the direction, Village, desom, Re-survey number etc. in Ext.A2 plan and like mistakes in Ext.A1 share list and delivery account. It is noticed that the notice of the application was given to the respondents through their respective counsel and there was no objection to the application. It is further stated that since the details of the property sought to be incorporated or substituted are not available in any of the documents or records produced before the court, on the basis of which the Razi petition was preferred and final decree was passed, the relevant records had been called for from the District Court.
It is further stated that since the details of the property sought to be incorporated or substituted are not available in any of the documents or records produced before the court, on the basis of which the Razi petition was preferred and final decree was passed, the relevant records had been called for from the District Court. However, the court below held that Exts.A2 to A5 plans are the records in which corrections are sought to be made and that the documents relevant for inspection to ascertain whether there occurred any clerical mistakes are not available before the court. Further, it is found that it is after a lapse of 31 years of passing the final decree and delivery of possession of the property that this application is filed seeking corrections. Therefore, the corrections sought for with respect to the details of property would effect a drastic change in the description of the property. On these grounds, the application for correction was dismissed. 4. Heard the learned counsel appearing for the revision petitioner, the learned counsel appearing for the fourth respondent as well as the learned Government Pleader. 5. Learned counsel for the revision petitioner submits that the correction sought for in I.A. is in respect of the property allotted to the share of the revision petitioner and the fourth respondent. It is stated that Ext.A2 document would show that two items of properties had been conveyed by the said document. The second item of the property was omitted to be included in the compromise petition as well as the final decree. It is further stated that Ext.A9 survey plan as well as Ext.A10 document later executed by the fourth respondent and Ext.A12 possession certificate issued by the Village Officer would show that the correct survey number of the property which is included in Group Nos. 1 and 3 as the share of the revision petitioner and the fourth respondent is Re-Sy. No. 101 and not 96/3 as stated in the compromise petition. Learned counsel also relies on the share list and the plan attached to Annexure A4 decree to show that the property comprised in Sy. No. 101 has been alloted to the revision petitioner and the fourth respondent and the other parties have no interest in the same.
No. 101 and not 96/3 as stated in the compromise petition. Learned counsel also relies on the share list and the plan attached to Annexure A4 decree to show that the property comprised in Sy. No. 101 has been alloted to the revision petitioner and the fourth respondent and the other parties have no interest in the same. It is further stated that it is only when the necessity for selling the property arose that the mistakes which had occurred in the decree come to the notice of the revision petitioner. It is therefore contended that in the absence of any objection from any of the parties to the suit, the dismissal of the application for correction on the ground that it would change the identity of the property, is completely unwarranted. 6. The learned counsel relies on the decision of this Court in Chandran vs. Amruthavally and Others, 2016 (5) KHC 444 to contend that where it is found that since there is a mistake in the survey number of the property recorded in the final decree in the partition suit, it shall open to the court, in exercise of power under Section 152 of the CPC to correct such mistake. Paragraph 10 of the said judgment which reads as follows: "10. In the instant case, as pointed out earlier, there is no dispute between parties regarding the identity of the property sought to be partitioned. The respondents have no objection to the correction of the survey number of the property in the manner as sought for by the revision petitioner. If the correction is allowed that will not cause prejudice to any of the parties to the litigation. The only apprehension is whether as per the revenue records the property in the particular survey number sought to be incorporated namely Sy. No. 644/5, is shown to be in the possession of third parties, in which event, the rights of the said third parties would be affected by the inclusion of the said survey number in the present case. I make it clear that the right of third parties, if any, over the property described in the survey number sought to be incorporated, will not be affected by such inclusion. If there is any disputed right, the parties to the present suit will have to approach the appropriate Court or authorities, seeking necessary reliefs." 7.
I make it clear that the right of third parties, if any, over the property described in the survey number sought to be incorporated, will not be affected by such inclusion. If there is any disputed right, the parties to the present suit will have to approach the appropriate Court or authorities, seeking necessary reliefs." 7. Learned counsel also relies on the decision of this Court in Easwari Amma Prsannakumari vs. Radhakrishna Pillai and Another, 2015 (5) KHC 922 to contend that even where the mistakes in the decree occurred on account of the mistaken description of the suit property in the plaint, the power under Section 152 of the Code would be available to the court to correct the decree. 8. In the instance case, the mistake has occurred admittedly in the compromise petition preferred by the parties before the court which led to passing of final decree. It is evident from the perusal of the documents produced before this Court that the correction of the mistakes in the final decree would not result in any change in the identity of the property. It is also to be noted that there is no objection to the application from any of the parties to the suit before the court below. 9. In the above view of the matter, the refusal on the part of the trial court to entertain the application for correction on the ground that it would effect a drastic change in the description of the property, cannot be sustained. The corrections to the decree would cover the properties alloted to the share of the revision petitioner and the fourth respondent alone. Notice to respondents 1 to 3, 5 and 6 in this revision petition is therefore dispensed with. Accordingly, this Civil Revision Petition is allowed. The order impugned is set aside. I.A. No. 606 of 2016 in I.A. No. 1277 of 1985 in O.S. No. 19 of 1983 is allowed, subject to the rights of any of the other parties to the partition suit to approach the court below if their rights are affected by the order correcting the decree.