CR No.2212 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.2212 of 2009 Date of decision: 30.4.2009 Hardip Singh ......Petitioner Versus Gurvinder Kaur and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Ashok Singla, Advocate for the petitioner. Rakesh Kumar Garg, J. This is defendant's revision petition challenging the impugned order dated 10.1.2009 whereby the District Judge, Faridkot allowed the application filed by the plaintiff-respondents for amendment under Sections 151, 152 and 153 CPC to change the Khasra number in the plaint as well as in the decree-sheet and sale deed dated 23.10.2002. As per the averments made in this revision petition, plaintiff- Mohinder Singh (predecessor-in-interest of the respondents) filed a suit against the petitioner for specific performance of the contract for land measuring 23 kanals 12 marlas, comprised in Khewat No.1 Khatoni No.1 Musteel No.76, of Killa No.17(8-0), 24(8-0) and 25(7-12) as per jamabandi for the year 1992-93 situated at village Dhigana, Tehsil Muktsar, on the basis of an agreement to sell dated 6.5.1992, on payment of balance amount and it was also prayed that in case decree cannot be passed in favour of the plaintiff for the specific Khasra numbers as stated above, then a decree be passed for specific performance for the land measuring 23 kanals 12 marlas being 472/3227 share out of agricultural land 161 kanals 7 marlas comprised in Khewat No.1, Khatoni No.1 to 4 Musteel No.76, Killa No.16/2(7-6), 17(8-0), 24(8-0), 25(7-12) Musteel 78 Killa No.9(3-12), Musteel 76 Killa No.6/2(4-11), 7(7-11), 8(7-11), 9(7-4), Musteel 76 Killa CR No.2212 of 2009 2 No.6/1(2-12), 12(4-4), 13/2(4-4), 14(8-0), 15(7-12), 16/1(0-6) Musteel 77 killa No.1/1(4-16), 20(8-0), 21(8-0), 22(8-0), 23/1(2-6), Musteel 78 Killa No.1(8-0), 2(9-8), 10(3-4) Musteel 79 killa No.4(8-0), 5(7-12), 6(2-13), 7(2- 0) and 8(1-2), on the basis of jamabandi for the year 1992-93 situated in village Dhigana, Tehsil Muktsar. The aforesaid suit was contested by the petitioner by filing written statement denying agreement to sell dated 6.5.1992 allegedly executed by him in favour of the plaintiff. However, the description of the property as mentioned in the plaint belonging to the defendant-petitioner was not disputed. The aforesaid suit was decreed and in pursuance of the civil court decree, sale deed was executed by the Local Commissioner appointed by the Court on 23.10.2002 in favour of the plaintiff-respondent for 472/3227 share of the petitioner in the total land measuring 161 kanals 7 marlas of the joint khata as detailed above. The plaintiff-respondent moved an application for amendment of the decree-sheets dated 2.9.2000 passed in Civil Appeal No. 309 of 1.10.1997 and decree-sheet in civil suit so as to mention Killa No.12 of Rect. No.76 as Killa No.12/1(4-4) and Killa No.1/1 of Rect. No.77 as Killa No.11/1(4-16) and also to mention Killa No.12/1 (4-4) in place of Killa No.12 Rect. No.76 and Killa No.11/1 in place of 1/1 of Rect. No.77 and also in the sale deed dated 23.10.2002, executed by the Local Commissioner appointed by the Court. In the said application, it was averred by the respondents that Mohinder Singh had filed a suit against the petitioner for specific performance of the agreement to sell dated 6.5.1992 on the basis of a copy of the jamabandi for the year 1991-92 supplied to them by the Patwari in which Killa No.12/1 was wrongly mentioned as Killa No.12 of Rect. No.76 and Killa No.11/1 as Killa No.1/1 of Rect. No.77. The CR No.2212 of 2009 3 said mistake in the jamabandi was further carried into the plaint and above said two Killa numbers were misdescribed as 12 instead of 12/1 and 1/1 instead of 11/1. The mistake in the preparation of jamabandi for the year 1992-93 was corrected by Farad Baddar order dated 2.11.1996. The respondents also filed an application for leading additional evidence to place on record the correct copy of jamabandi for the year 1992-93 which was allowed and the correct jamabandi was produced on record. It was alleged that the clerical error described in the above said Khasra numbers occurred due to preparation of wrong jamabandi for the year 1992-93 which was rectified by the revenue Agency in its record later on and the aforesaid mistake led to its misdescription in the decree-sheet of the trial Court and of the Appellate Court and also in the sale deed got executed by the Court through the aforesaid Local Commissioner and thus, the ends of justice demand that the plaint, decree sheet of both the Courts and the sale deed are rectified by way of amendment. It is pertinent to mention that the petitioner filed no reply to this application. However, he opposed the allowing of the application. Vide impugned order, the District Judge, Faridkot, allowed the aforesaid application. Challenging the aforesaid order, learned counsel for the petitioner has vehemently argued that in a suit for specific performance, the Court cannot go beyond the agreement. In the present case, the suit was filed by the plaintiffs on the basis of agreement to sell dated 6.5.1992 with regard to the property as mentioned in the agreement and in these circumstances, no amendment with regard to Khasra numbers can be allowed to be made in the plaint otherwise it will amount to indirectly changing the khasra number even in the agreement to sell which was not permissible. It is further argued that no amendment in the agreement to sell, which was the basis of the suit, has been sought and no declaration CR No.2212 of 2009 4 has been sought that in fact the contract of sale was not in regard to sell the property mentioned in the agreement to sell and later, it was with regard to khasra numbers now sought to be pleaded by the respondents and in the absence of these pleadings no relief could have been given to the respondents and therefore, the impugned order is liable to be set aside. I have heard learned counsel for the petitioner. I find no merit in the submissions made. It is not in dispute that the very basis of the civil suit filed by the respondents (predecessor-in- interest of the respondents) was jamabandi for the year 1992-93 in which mistake of wrong description of property occurred which was later on corrected vide Farad Badar order dated 2.11.1996. The impugned amendment sought by the respondents is in accordance with the aforesaid corrected jamabandi for the year 1992-93. The case of the petitioner before the trial Court was of total denial of execution of the agreement to sell in question which was not accepted and it was held that the petitioner was liable to execute the sale deed in favour of the plaintiff-respondents in pursuance of the agreement to sell in question for specific Khasra number (i.e. Killa Nos.17(8-0), 24(8-0) and 25(7-12). It was not the case of the petitioner before the trial Court that description of the property as given in the plaint was wrong. It is also relevant to mention that the plaintiff- respondents sought decree of specific killa Nos. i.e 17(8-0), 24(8-0) and 25(7-12) and had very clearly mentioned in the suit that if for any reason, the specific performance of the specific khasra numbers could not be ordered in his favour, then in the alternative, the decree may be passed in respect of 23 kanals 12 marlas of land out of his share in the total khata belonging to the petitioner as per jamabandi for the year 1992-93. It is not denied by the petitioner that out of the total khata of 161 kanals 7 marlas, he had 472/3227 share, comprised in Khasra numbers 16/2(7-6), 17(8-0), CR No.2212 of 2009 5 24(8-0), 25(7-12) of rectangle No.76, Khasra number 9(3-12) of Rect. No.78, 6/2(4-11), 7(7-11), 8(7-11), 9(7-4) of Rect.No.76, 6/1(2-12), 12/1(4- 4), 13/2(4-4), 14(8-0), 15(7-12), 16/1(0-6) of Rect. No.76, 11/1(4-16), 20(8- 0), 21(8-0), 22(8-0) 23/1(2-6) of Rect. No.77, 1(8-0), 2(9-8), 10(3-4) of Rect. No.78, 4(8-0), 5(7-12), 6(2-13), 7(2-0) and 8(1-2) of Rect. No.79. The Civil Court vide its judgment and decree dated 30.8.1997 ( as upheld by the First Appellate Court), decreed the suit of the plaintiff-respondents for specific performance of the agreement to sell dated 6.5.1992 in respect of specific khasra numbers i.e. Khasra numbers 17(8-0), 24(8-0) and 25(7- 12). The sale deed dated 23.10.2002 was executed through the Court for 23 kanals 12 marlas being 472/3227 share of defendant-petitioner in total khata. Now the plaintiffs want to get amended khasra numbers in the plaint as well as in the decree-sheets and the sale deed, in which the vendor Hardeep Singh had a share and that two khasra numbers of the khata mentioned in the plaint as well as in the decree-sheets of the trial Court and the Appellate Court and the sale deed dated 23.10.2002 were wrongly described. It is also relevant to mention here that no reply was filed by the petitioner to controvert the averments made in the application for amendment/correction filed by the plaintiff-respondents. Apparently, the petitioner is trying to confuse the issue. The correction sought by the respondents is in the description of khasra numbers as held by the petitioner as 472/3227 share. By this correction, no amendment in the property number as mentioned in the agreement is sought to be corrected because in the agreement defendant agreed to sell only specific khasra numbers [( killa Nos. i.e 17(8-0), 24(8-0) and 25(7-12)], total 23 kanals 12 marlas and on the basis of the aforesaid agreement, he sought specific performance of the agreement by a decree of specific khasra numbers or in case the same was not possible, by a decree of 472/3227 share (total 23 CR No.2212 of 2009 6 kanals 12 marlas) being share of the petitioner in the property as described in jamabandi for the year 1992-93. The Courts below granted decree of specific khasra numbers and in performance of decrees, the sale deed of 472/3227 share of the petitioner in total khata was executed in favour of the respondents by the Court giving wrong description of two khasra numbers (which are sought to be corrected) which was because of wrong entry in the jamabandi for the year 1992-93 which was later on corrected. Thus, the Court was competent to correct the corrections sought by the respondents, in its inherent powers as provided under Sections 151, 152, 153 CPC. In view of the facts and circumstances stated above, I find no merit in this revision petition and the same is dismissed. April 30, 2009 (RAKESH KUMAR GARG) ps JUDGE CR No.2212 of 2009 7