ANUPA KUER Vs. YOGENDRA JHA

JUDGEMENT

(1.) This application by the plaintiff-decree-holder Musammat Anupa Kuer is directed against the order of the first Additional Subordinate Judge of Muzaffarpur passed in Miscellaneous Case No. 2 of 1952, refusing to amend the decree as prayed for.

(2.) One Bhangi Jha had two sons, namely, Raghu Jha and Boudhu Jha. Boudhu Jha died leaving a widow, Musammat Phulbati Kuer, and a daughter, Musammat Anupa Kuer the petitioner. Raghu Jha died leaving three sons one of whom is Jogmdra Jha, opposite party No. 1. Boudhu Jha had a half share in the ancestral property consisting of seven plots, and it appears that his shares in those plots were from the southern direction. On 20-6-1941, Musammat Phulbati Kuer as guardian of the plaintiff Anupa Kuer executed a sale deed in favour of opposite party No. 1 with respect to the southern portions of those plots. After the death of Musammat Phulbati Kuer the petitioner Anupa Kuer filed Title suit No. 304 of 1947 in the court of the Munsif, 2nd Court, Muzaffarpur on the allegation that the sale deed in question was executed without any legal necessity and it was not binding on her and prayed for recovery of possession of the land purported to have been sold by the said sale deed. Curiously enough, in the plaint it was omitted to mention as to from which direction the plain- tiff claimed recovery of possession over those plots, but throughout the plaint it was made very clear that the plaintiff was challenging the sale deed dated 20-6-1941 by which the southern portions of those plots were conveyed to opposite party No. 1 and that she wanted recovery of possession of the portions which had been sold by that sale deed. The suit was transferred to the court of the third Additional Munsif, Muzaffarpur, and it was decreed in favour of the petitioner on 30-8-1949. It was held that the sale deed in question was not binding on her and that the petitioner was entitled to get a decree for recovery of possession of the land conveyed by that sale deed. The decree having been drawn in accordance with the plaint also naturally omitted to mention as to from which direct on the delivery of possession was to be given to the plaintiff-decree-holder. This decree was affirmed in appeal, being Title appeal No. 241/82 of 1949/1959, by the first Additional Subordinate Judge of Muzaffarpur on 24-1-1051. However, when the piaintiff-decree-holder applied for delivery of possession she was opposed by the defendants on the ground that there being no mention in the decree as to from which direction in the several plots the plaintiff-decree-holder was to got possession. She could not be given delivery of possession through Court. The prayer of the plaintiff-decree-holder for delivery of possession was, therefore, rejected. Thereafter, she filed an application in the court Of the first Additional Subordinate Judge of Muzaffarpur which had affirmed the decree on appeal, for amendment of the decree. The court below took the view that there was ambiguity with regard to the identity of the property which was the subject matter of the suit, and, therefore, the amendment of the decree could not be allowed. Relying on a single Judge decision of the Calcutta High Court in -- 'Hamiduddin Ahmad v. Moyezuddin Mondal', A. I. R. 1946 Cal 335 (A) the court below rejected the application of the petitioner by its order dated 23-7-1952, and against that order the plaintiff-decree-holder has come up in revision before this Court.

(3.) Mr. A. C. Roy for the petitioner has contended that in the present case there was no ambiguity With regard to the identity of the subject matter of the suit. The impugned sale deed clearly mentioned that Musammat Phulbati Kuer had transferred the southern portion of the plots in question and the title suit was brought to get a declaration that the said sale deed was not binding on the plaintiff and that she was entitled to recover possession over the land so conveyed by her mother, Musammat Phulbati Kuer. Neither the court nor the parties concerned had any misapprehension that the subject-matter of the suit was the southern portions of the plots in question as conveyed under the said sale deed, and, therefore, the mistake that had occurred was not one of identity of the proper-ties that were being dealt with in that suit, but only a mistake of description which ought to have been amended. In support of his contention he relied on the case of -- ' Jagernath Prasad v. Jamuna Prasad Singh', AIR 1934 Pat 493 (B). In that case one Thakur Baijnath Singh executed a mortgage of 3 annas 4 gandas pokhata share out of 16 annas asli mai dakhli of Taluka Mangrar which was included in khewat No. 2, but by mistake in the mortgage bond was described to be included in khewat No. 3. The descendants of the mortgagees brought a. suit on that mortgage and obtained a decree on its basis. The decree was executed and in execution the mortgaged property was sold. This mistake of khewat, however, was repeated in the plaint, the preliminary decree, the final decree, the petition ior execution, the sale proclamation and the sale certificate. The auction-purchaser applied for amendment of the decree and of the consequential execution, papers. Their Lordships relied on the case of -- 'Aziz Ullah Khan v. Court of Wards of Shahjahanpur', A. I. R. 1932 All 587 (C), where in exactly similar circumstances, it was held that where a property has been accidentally misdescribed in the mortgage bond and the mistake has been repeated throughout the proceedings to enforce the mortgage but where there is no doubt as to the identity of the property mortgaged and the property sold at auction the court has ample power to amend the decree and that such a case is eminently one in which, the powers of amendment should be exercised. In the opinion of their Lordships the mistake was not of identity of the property, and, therefore, they allowed the amendment sought for. In -- 'Pettachi Chettiar v. Sangili Veera Pandia Chinnathambiar', 14 Ind App 84 (PC) (D) their Lordships of the Judicial Committee observed that the real test was as to what did the court intend to sell and what did the purchaser understand that he bought. Applying these principles to the facts of the present case, it is clear that all concerned knew that the plaintiff intended to impugn the sale deed by which the southern portions of the plots in question were conveyed to opposite party No. 1 and that she required recovery of possession over those portions of the land which were so conveyed. Thus there was no ambiguity in the identity of the lands which were the subject matter of the suit and the mistake was only of description, and, as such, it was a fit case in which the powers of amendment should have been exercised. The case in -- 'AIR 1943 Cal 333 (A)' which has been relied on by the court below for rejecting the amendment, does not apply to the facts of the present case. In that case the plaintiff clearly mentioned in the schedule of the plaint that his title was over the western portion of the plot in suit, whereas, as a matter of fact, he had title over the eastern portion. Thus, there was a clear ambiguity as to the identity of of the subject matter of the suit and the mistake was not only of description. In those circumstances his Lordship of the Calcutta High Court held that the amendment of the decree could not be allowed. In the present case, however, it is quite clear, as already indicated, that what was the subject-matter of the suit was the land conveyed under the sale deed dated 20-6-1941, that is to say, the southern portions of the plots in question and that the plaintiff got a decree for recovery of such portion of the suit land as were conveyed by the said sale deed. There being no ambiguity as to the identity of the subject matter of the suit, the court should have exercised its jurisdiction and ought to have amended the decree, and, in not doing so, has failed to exercise its jurisdiction.