IMPORTANT POINT
Accidental Omission--Accidental omission in judgment whereby encroachment by respondent no.4 not mentioned in trial relief though it is clearly established in discussion part--Correction of judgment allowed.

Rajesh Bindal, J.:-Challenge in the present petition is to the order passed by the learned Civil Judge (Junior Division), Palwal, dated 7.8.2006 whereby the application filed by the petitioners for correction of judgment and decree dated 9.11.2000 passed by the Civil Court was dismissed.

2. Briefly the facts are that the petitioners filed a suit for possession and for permanent injunction against the respondents claiming that they are owners in possession of residential plot as detailed in plaint which was purchased by them vide registered sale-deed dated 29.3.1988. It was alleged that defendant No. 1 had encroached upon an area to the extent of 11 square yards; defendant No. 2 had encroached upon to the extent of 3-2/3 square yards; defendant No. 3 had encroached upon to the extent of 60½ square yards; and defendant No. 4 -Hira Lal had encroached 30 square yards of the plot. The plot forms part of khasra No. 999. The local commissioner was appointed for demarcation of the property who corroborated the claim made by the petitioners in the plaint. On the basis of the report of the Local Commissioner and the evidence led by the parties, the trial court decreed the suit and permanent injunction was granted restraining the respondents/defendants from interfering or dispossessing the petitioners from the suit land and a decree for possession against defendants no. 1 to 3 for the area as mentioned above was also passed.

3. Aggrieved against the judgment and decree of the trial court, respondents no. 1 and 2/ defendants No. 1 and 2 being satisfied did not file any appeal before the Lower Appellate Court. However, respondents no. 3 and 4/ defendants No. 3 and 4 being dissatisfied with the judgment and decree of the trial court filed appeal before the learned Lower Appellate Court where the judgment and decree of the trial court was upheld vide judgment and decree dated 4.3.2002.

4. The petitioners having noticed error/ accidental omission in the judgment and decree of the trial court dated 9.11.2000 filed application for correction thereof, whereas respondents No. 3 and 4/defendants No.3 and 4 filed the appeal. The judgment and decree of the trial court in favour of the petitioners was upheld by the lower appellate court. The application filed by the petitioners for correction was rejected vide impugned order dated 7.8.2006. It is this order of the learned Civil Judge (Junior Division), Palwal, which is impugned in the present petition.

5. Opening his arguments, learned counsel for the petitioners referred to claim made by the petitioners before the trial court in the plaint as noticed in the decree by the trial court and paras 11 and 12 of the judgment whereby the fact regarding encroachment by the respondents/defendants and the prayer made by the petitioners has been noticed. He further submitted that since the entire discussion in the judgment of the trial court was in the light of the fact that the Local Commissioner had found that all the four defendants had encroached upon the area as claimed by the petitioners in the suit, he did not file any appeal against the judgment and decree as the relief prayed for had been granted except the accidental omission of non-mentioning of encroachment by respondent No. 4. However, considering the fact that decree had been passed against respondent No. 4/ defendant No. 4 and he had been found to be in possession of the area, which is owned by the petitioners, filed appeal before the learned Lower Appellate Court, which was dismissed. He further referred to the finding recorded by the learned Lower Appellate Court in para 13 of the judgment where the contention of respondent No. 4/ defendant No. 4 has been noticed to the effect that he claimed ownership of khasra No. 998 to the extent of 2/75 share i.e. 2 marlas situated within the municipal limits of Palwal. It was further observed that respondent no. 4/ defendant No.4 did not have any concern with the land comprised in khasra no. 999 w