GURDIAL KAUR Vs. PRITAM SINGH KEHAR SINGH

JUDGEMENT

(1.) THIS is an application by the plaintiff respondents whose suit for possession of land was decreed by the trial court and the appeals against which had been dismissed right up to the Letters Patent Appeal which was decided by this Bench on 27th of March 1962 In this application, it has been stated that the plaintiffs in the suit in the trial Court had claimed possession of 72 Bighas and 17 Biswas of land comprising of six khasra numbers and joint possession of 94 Bighas and 2 biswas of land comprised in some other specified khasra numbers claiming one half share therein. On wrong arithmetical calculations, the total area of these two parcels of land was described to be 104 Bighas and 10 Biswas instead of 119 bighas and 18 Biswas This mistake continued unnoticed right up to fetters Patent appeal in this Court and it was only when the final decree of this Court was sought to be executed that this mistake in calculation came to light While suing out execution, the decree-holders claimed actual possession of 72 Bighas and 17 biswas and joint possession of one half share in land measuring 94 Bighas and 2 Biswas mentioned in the specified khasra numbers The executing Court ordered delivery of possession as claimed. On appeal, however, the appellate Court upholding the objection of the judgment-debtor, ordered that in all only 104 bighas and 10 Biswas had been decreed and. therefore, it was not possible to give one half of land measuring 94 Bighas and 2 Biswas of land The result, therefore, was that in so far as delivery of possession of 72 Bighas and 17 Biswas comprising of khasra Nos. 4048. 4107 4110. 4118. 4119 and 4121 is concerned, the judgment-debtor's appeal was dismissed, but in regard to the joint possession of the remaining land, the learned District Judge declined to give any relief unless the necessary amendment in the decree-sheet was made It is noteworthy that the learned District Judge has in his order expressly observed that the area decreed by way of joint possession is less than as claimed in the suit It is because, of these observations that the plaintiff decree-holders have approached us with a prayer for amendment.

(2.) AT the last hearing in February. 1963 the respondents' learned counsel had raised a plea that in the plaint itself, a prayer had been made only for possession of 104 kanals and 19 marlas and that if the decree-holders were feeling aggrieved by any mistake in the decree an appeal should have been perferred therefrom and that now it is too late to invoke this Court's power under Sections 151 and 152. Civil Procedure Code for amending the decree On account of this plea, we sent for the record From the record it is quite clear that in the plaint, in addition to possession of 72 Bighas and 17 Biswas on which, there is no dispute before us joint possession of 94 Bighas and 2 Biswas was prayed in which ownership to the extent of one-half share was claimed and indeed the numbers of Khewats and khataunis were also mentioned therein In the prayer clause, we do not find any measurement of the half share as has been suggested on behalf of the respondents. As a matter of fact, even in the heading of the plaint, there is no ambiguity and what has been claimed is quite clearly stated to be 72 Bighas and 17 Biswas as one parcel of land and joint share to the extent of half in 94 Bighas and 2 Biswas of which the numbers of the Khewats and Khataunis are quite clearly specified It has also been explained that since at no stage prior to the final determination of the controversy by the Letters Patent Bench did any cause of action for executing the decree for possession arise, this mistake remained unnoticed till an objection was raised by the judgment-debtor and upheld by the learned District Judge on 5th of April 1962

(3.) SHRI Nehra on behalf of the respondents very strongly urged that this court should not permit its discretionary jurisdiction under Section 152 and its inherent jurisdiction under Section 151 of the Code of Civil Procedure in the present case because the plaintiff-decree-holders have slept over this matter for such a long time. It has also been emphasised that it was open to the decree-holders to appeal from the decree of the Court of First instance it there was any mistake therein in regard to the area of the land of which possession had been decreed having failed to appeal therefrom, the decree-holders are not entitled to ask for amendment of the decree at this late stage.