JAYANTA KUMAR RATH Vs. PRAVAS KUMAR RATH

JUDGEMENT

(1.) In this petition under Article 227 of the Constitution of India, the petitioners challenge the order dated 24.1.2003 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in Misc. Case No.316 of 1997. By the said order, learned trial court rejected the application of the plaintiff for correction of compromise decree dated 30.6.1991.

(2.) The original petitioner along with opposite parties 3 to 5 instituted a suit for partition impleading opposite parties 1 and 2 as defendants in the court of learned Civil Judge (Senior Division), 1st Court, Cuttack, which was registered as T.S No.435 of 1988. The suit was ended in compromise on 30.6.1991. While the matter stood thus, the petitioner-plaintiff no.2 filed an application under Section 152 CPC for correction of the decree. It is stated that a large number of properties was the subject-matter of the suit. While drafting the compromise petition, certain mistakes were crept in. The allotment of land at Puri town had been disputed on the ground that Khata No.298 had been inadvertently mentioned as 321. Though he got an area of Ac.0.073 dec. of land out of Plot No.68, Ac.0.185 dec. out of Plot No.69, but the same had been mentioned as Ac.0.195 dec. and Ac.0.168 dec. respectively. Similarly though he got Ac.0.87 dec. of land out of Plot No.70, the said plot had been totally omitted from Schedule 'Ka' Lot-1. That apart, defendant no.2 has got only Ac.0.03 dec. of land out of Plot No.70, but inadvertently the entire plot had been allotted in his favour. Further, though he got an area of Ac.0.182 dec. of land out of Plot No.68, the same has been mentioned as Ac.0.101 dec. It is further stated that the respective allotments of the properties had been shown in sketch map marked in blue colour for the plaintiff and the red colour for defendant no.2, which was a part and parcel of the decree. The boundary mentioned in allotment sheet, its area and sketch map do not tally. With the factual scenario, the application was filed.

(3.) Defendant no.2 filed an objection to the same contending, inter alia, that the petition is not maintainable. It is stated that there is no clerical or arithmetical error in the decree. Further, pursuant to the final decree, he alienated the entire land in favour of Namita Dash and Sukanti Jagdev, who have not been made parties to the petition. It is further stated that in the first petition, the petitioner claimed an area of Ac.0.62 dec. out of Plot No.70, but in the subsequent petition, he claimed an area of Ac.0.87 dec. from the said plot. In the suit bearing C.S. No.142/2001 of the court of the learned Civil Judge (Senior Division), Puri, he claimed Ac.0.082 dec. from the said plot. With regard to Plot No.69, initially the petitioner was silent, but in the subsequent petition, he claimed an area of Ac.0.185 dec.