DEEP CHAND Vs. BAHADUR CHAND

JUDGEMENT

(1.) ON 18th of May, 1965, Krishan Dass and others sold two third share of 238 Kanals 13 Marias, namely, 159 Kanals and 2 Marias of agricultural land to Bahadur Chand minor son of Faqir Chand. On 12th of May, 1966, out of the land sold. Deep Chand brought a suit for possession by pre -emption of 74 Kanals, that is two -third share of 111 Kanals, on the ground that he was a tenant of the said land and thus had a superior right than the vendee. It was stated in the plaint that his right of pre -emption extended only to 74 Kanals and he was not giving up his right of pre -emption to any part of the land sold, regarding which he had such a right. In the plaint, the rectangle Nos. and the Killa Nos. of the land together with their areas, for which the suit was being brought, were also mentioned. The land was described thus -

(2.) FROM what has been stated above, it will be apparent that the land sold was 159 Kanals and 2 marlas and the plaintiff had filed a suit for possession by pre -emption of 74 Kanals, out of the said land, because he was a tenant of that land and his right of pre -emption extended to that part only. He could not sue for preemption for the remaining land. He had, however, definitely stated in the plaint that he was not giving up his right to any part of the land to which his right of pre -emption extended. The total area of the land for which the suit was being filed was clearly mentioned. The Rectangle Nos. and the Killa Nos. had also been stated in the plaint. It so happened that, by a clerical error, the areas of two Killa Nos had been wrongly mentioned in the plaint. With the incorrect areas, the total would come only to 110 Kanals and if the correction sought for by the plaintiff was made the total area would be 111 Kanals as was mentioned in the plaint. It was, therefore, to remove this clerical error that the amendment was sought for by the plaintiff. No legal right had vested in the vendee by the misdescription of the area of any particular Killa No. in the plaint, when the total area had been rightly shown therein. According to the plaintiff, his right of pre -emption only extended to 74 Kanals out of the land sold. If, later on the vendee succeeded in showing that he was a tenant of some more land then the question of the present suit being for partial preemption might arise. But, so far as the present application for amendment is concerned, there does not seem to be any legal ground as to why it should be dismissed, when only a clerical error was being sought to be corrected and which mistake had not in any way clothed the vendee with any legal rights. The unreported decision relied upon by the trial Judge was clearly distinguishable. There the plaintiff filed a suit for possession by pre -emption of 70 Kanals of land only out of 82 Kanals which had been sold. He had based his right on the ground that he was a tenant of the said land. Later on, however, it transpired that the area under his tenancy was 82 Kanals and he, consequently, applied for the amendment of his plaint and to substitute 82 Kanals in place of 70 Kanals. That prayer was, however, disallowed. In the present case, however, the suit had been instituted regarding 74 Kanals that is two third of 111 Kanals. The mistake that was sought to be corrected was only with regard to the areas of Nos. 233/1 and 233/17, which had been incorrectly mentioned in the plaint by a clerical error. The amendment sought was for removing that defect. Such an amendment should been allowed by the Court below. The view that I have taken is supported by another unreported decision of Kaushal, J, in Second Appeal from Order No. 58 of 1955, Bir Singh v. Fateh Singh and another, decided on 23rd August, 1966.