Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(SC) 285

2009(2) Supreme 737
SUPREME COURT OF INDIA
(From Punjab & Haryana High Court)
S.B. Sinha and Dr. Mukundakam Sharma, JJ.
Tilak Raj — Appellant
versus
Baikunthi Devi (D) by LRs. — Respondents
Civil Appeal No. 1058 of 2009
(Arising out of S.L.P (C) No. 15471/2007)
WITH
Civil Appeal No. 1059 of 2009
(Arising out of S.L.P (C) No. 19445/2007)
Decided on : 16-02-2009

Advocates appeared:
For the Appellant :Rakesh K. Khanna, Sr. Adv., Reetesh Singh, Ms. Jahanvi Wuzah, Ms. Shailza Sinha, Surya Kant, Advocates.
For the Respondents:M.L. Varma, Sr. Adv., S.M. Sarin, P.N. Puri, Satya Mitra, Advocates.

IMPORTANT POINT
Clerical mistakes should be corrected u/s 152, CPC and the court should not bind itself by the shackles of technicalities.

Headnote:(a) Code of Civil Procedure, 1908 – Section 152 – Patwari issuing a wrong certified copy of Jamabandi resulting in wrong claim in the suit – This was clerical mistake which ought to have been corrected u/s 152 – In such matters, the court should not bind itself by the shackles of technicalities. (Paras 14 and 15)
        (2001) 5 SCC 37; 2008(15) SCLAE 626 – Relied upon.
        (1995) 6 SCC 733; (1980) 1 SCC 290 – Referred.
        (b) Land Acquisition Act, 1894 – Section 34 – Land reconveyed to the original owner – It was not purchased – All the co-sharers must own the same in proportion of their share – It could not be mutated in the name of respondent only. (Para 21)
       Facts of the case :
        1. One Thakru, the common ancestor of the parties, had wife Smt. Radhi and two sons, namely, Mange Ram and Datta Ram. Datta Ram was married to Smt. Baikunthi Devi, the respondent No. 1 (since deceased). Mange Ram was the father of Tilak Raj - the appellant in both the appeals. The property in suit was owned by and was in the possession of Datta Ram, who died on 23.02.1968, leaving his wife Smt. Baikunthi Devi and his mother Smt. Radhi as natural and legal heirs. Smt. Radhi died on 13.09.1968 and before her death, she executed a registered Will dated 30.04.1968 in favour of her grandson - Tilak Raj, the appellant herein. However, the land left by Datta Ram was mutated in favour of Smt. Baikunthi on the basis of Will dated 16.01.1968.
        2. In order to establish his claim qua half share of the property bequeathed by Will in his favour by his grandmother Smt. Radhi, the appellant herein filed a civil suit no. 306 of 1969 against Smt. Baikunthi Devi for a decree for possession of land measuring 7 K 12 = Marlas. The plea of the appellant based on registered Will dated 30.04.1968 executed by his grandmother - Smt. Radhi was upheld and the suit was decreed in his favour vide judgment and decree dated 05.02.1976.
        3. During its execution of the decree it was found that Khasra No. 25R/52 has been wrongly mentioned in the decree whereas the correct Khasra No. was 26R/52. Due to such a mistake, the decree could not be executed and possession of the decreetal land could not be delivered to the appellant.
        4. Besides, certain other land owned by Datta Ram was acquired by the Fertilizer Corporation of India (for short “FCI”) during his life time. After his death, a part of that land was re-conveyed in view of the fact that the FCI found that the said acquired land was surplus.
        5. The appellant filed Civil Suit No. 149 of 1979 for a declaration that he is owner in possession as co-sharer of the two parcels of land, i.e. the land of Datta Ram which was returned by the FCI to Smt. Baikunthi Devi and the land which was wrongly described in suit no. 306/1969. The Sub Judge, 1st Class, Anandpur Sahib by his judgment and order dated 31.8.1982 allowed the suit and decreed possession of land measuring 13 Kanals 10 Marlas in favour of appellant as mentioned in para B of the plaint. Suit of the plaintiff was further decreed against thedefendants through a decree for declaration that the plaintiff is owner in possession as co-sharer of land measuring 9 Kanals 17 Marlas in which plaintiff has = share as co-sharer in the entire land as fully detailed in Part C of the plaint.
        6. Appeal of Smt. Baikunthi Devi was allowed by order dated 7.6.1983 and the Judgment and Decree dated 31.8.1982 passed by Sub Judge, 1st Class, Anandpur Sahib was set aside.
        7. Aggrieved thereby the appellant filed RSA in the High Court which was dismissed. Thereupon, the appellant filed review petition which was also dismissed.
       Finding of the Court :
        Impugned judgment cannot be sustained.
       Result : Appeals allowed.

JUDGMENT

Dr. Mukundakam Sharma, J.—

1. Leave granted.

2. Being aggrieved by the Judgments and Orders passed by the High Court of Punjab & Haryana at Chandigarh in Review Application No. 69-C/2006 dated 28.2.2007 and RSA No. 2315/83 dated 18.8.2006, the present appeals were filed by the appellant. Since both these appeals involve similar questions of law and facts, we propose to dispose of both these appeals by this common judgment and order.

3. The relevant facts for disposal of the controversy are as under:

One Thakru, the common ancestor of the parties, had wife Smt. Radhi and two sons, namely, Mange Ram and Datta Ram. Datta Ram was married to Smt. Baikunthi Devi, the respondent No. 1 (since deceased). Mange Ram was the father of Tilak Raj - the appellant in both the appeals. The property in suit was owned by and was in the possession of Datta Ram, who died on 23.02.1968, leaving his wife Smt. Baikunthi Devi and his mother Smt. Radhi as natural and legal heirs. Smt. Radhi died on 13.09.1968 and before her death, she executed a registered Will dated 30.04.1968 in favour of her grandson - Tilak Raj, the appellant herein. However, the land left by Datta Ram was mutated in favour of Smt. Baikunthi on the basis of Will dated 16.01.1968. In order to establish his claim qua half share of the property bequeathed by Will in his favour by his grandmother Smt. Radhi, the appellant herein filed a civil suit no. 306 of 1969 against Smt. Baikunthi Devi for a decree for possession of land measuring 7 K 12 = Marlas on the ground that the land measuring 15K 5 Marlas situated in Village Maujowal was owned and possessed by Datta Ram and he died intestate on 23.2.1968 leaving behind Smt. Baikunthi Devi - his widow and Smt. Radhi his mother. In that civil suit, Smt. Baikunthi set up a Will purporting to have been executed by her husband in her favour on 16.01.1968. The plea of the appellant based on registered Will dated 30.04.1968 executed by his grandmother - Smt. Radhi was upheld and the suit was decreed in his favour vide judgment and decree dated 05.02.1976. The plea raised by Smt. Baikunthi on the basis of the Will dated 16.01.1968 did not find favour and was rejected.

4. A petition for execution of the decree was filed by the appellant. During its execution it was found that Khasra No. 25R/52 has been wrongly mentioned in the decree whereas the correct Khasra No. was 26R/52. Due to such a mistake, the decree could not be executed and possession of the decreetal land could not be delivered to the appellant.

5. Besides certain other land owned by Datta Ram was acquired by the Fertilizer Corporation of India (for short “FCI”) during his life time. After his death, a part of that land was re-conveyed in view of the fact that the FCI found that the said acquired land was surplus.

6. The appellant filed Civil Suit No. 149 of 1979 for a declaration that he is owner in possession as co-sharer of the two parcels of land, i.e. the land of Datta Ram which was returned by the FCI to Smt. Baikunthi Devi and the land which was wrongly described in suit no. 306/1969. The Sub Judge, 1st Class, Anandpur Sahib by his judgment and order dated 31.8.1982 allowed the suit of the appellant by holding that he was entitled for decree for possession of the land which had been wrongly described as Khasra No. 25R/52 measuring 5 K 8 Marlas as mentioned in para A of the plaint, in which he has been held to have = share as co-sharer in the entire land against the defendants. By the said judgment and order, possession of land measuring 13 Kanals 10 Marlas was also decreed in favour of appellant as mentioned in para B of the plaint in which the appellant has been held to have = share as co-sharers in the land comprised of Khewat No. 129 Khatoni No. 181. Suit of the plaintiff was further decreed against the defendants through a decree for declaration that the plaintiff is owner in possession as co-sharer of land measuring 9 Kanals 17 Marlas in which plaintiff has = share

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2009 Supreme(SC) 285

IMPORTANT POINT Clerical mistakes should be corrected u/s 152, CPC and the court should not bind itself by the shackles of technicalities.

Cases Referred (3)

IMPORTANT POINT
Clerical mistakes should be corrected u/s 152, CPC and the court should not bind itself by the shackles of technicalities.