IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 585 of 2009. Reserved on: 26.07.2011. Decided on: 12.8.2011. ____________________________________________________________ Jai Singh. … Appellant. Versus Dhian Singh and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellant : Mr. G. D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. For the Respondents : Mr. Bhupender Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate. Rajiv Sharma, Judge: This regular second appeal is directed against the judgment and decree dated 28.4.2009 passed by the learned Additional District Judge (2), Kangra at Dharamshala in Civil Appeal No.2-N/XIII/2004. 2. The material facts necessary for adjudication of this regular second appeal are that the appellant/plaintiff 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - (hereinafter referred to as “the plaintiff” for convenience sake) has instituted a suit for injunction. The case of the plaintiff is that he alongwith other co-owners is in possession of land comprised in Khata No.87 min, Khatauni No.181 min, Khasra Nos. 98/1 measuring 1 kanal 15 marlas, 98/2 measuring 4 marlas, 98/4 measuring 4 marlas, 98/6 measuring 1 kanal 2 marlas, plots 4, total land measuring 3 kanals 5 marlas, situate in Mohal Mugdial, Mauza Chhattar, Tehsil Nurpur, District Kangra, which has come to him by virtue of partition in Civil Suit No.38 of 1992 pursuant to which warrant of possession was issued on 24.5.1995 and Rapat Number 398 dated 24.5.1995 was also made. According to him, the defendants/respondents (hereinafter referred to as “the defendants” for convenience sake) are strangers and have no right, title and interest in the suit land, which was abadi. 3. Defendant No.1, Rai Singh died during the pendency of suit before the learned trial Court and his legal representatives, namely, Onkar Singh and Sansar Singh were brought on record vide order dated 10.9.1999. 4. The suit was contested by the defendants. Defendant No.1, Rai Singh (predecessor-in-interest of Onkar Singh and Sansar Singh) and defendant No.2, Rood Singh filed joint written statement. Defendant No.3, Dhian - 3 - Singh also filed separate written statement. According to defendants, namely, Shri Onkar Singh, Sansar Singh and Rood Singh, they were in joint ownership and possession with plaintiff and have shown ignorance about Civil Suit No.38 of 1992 and warrant of possession. According to Dhian Singh, defendant No.3, he is owner of Abadi in his own independent right. He has further averred that he was not a party to Civil Suit No.38 of 1992 nor any warrant of possession was issued. He has residential abadi in the suit land in an area of 4 marlas. 5. The plaintiff has filed separate replications to the written statements filed by the defendants. Issues were framed on 25.6.1997. The trial Court decreed the suit of the plaintiff. One of the defendants, namely, Shri Dhian Singh filed an appeal before the learned Additional District Judge (2), Kangra at Dharamshala. The other defendants, namely, Onkar Singh, Sansar Singh and Rood Singh were also added as party besides plaintiff, Shri Jai Singh. Respondents No.2 to 4, namely, Shri Onkar Singh, Shri Sansar Singh and Shri Rood Singh were proceeded ex- parte as per orders passed by the learned Additional District Judge on 15.12.2006. The learned Additional District Judge allowed the appeal on 28.4.2009 preferred by Shri Dhian Singh. It is in these circumstances, the present appeal has been preferred by the plaintiff against - 4 - the judgment and decree dated 28.4.2009 passed by the learned Additional District Judge (2), Kangra at Dharamshala. 6. The regular second appeal was admitted by this Court on the following substantial questions of law, on 9.11.2010:- 1. Whether the Lower First Appellate court erred in appreciating the law applicable, pleading of the parties, evidence adduced by them in its right perspective, thus vitiates the impugned judgment and decree dated 28.04.2009? 2. Whether the impugned judgment and decree dated 28.04.2009 is vitiated being contrary to the provisions of Order 20 Rule 5 of the Code of Civil Procedure and is liable to be quashed and set-aside? 3. Whether the Lower First Appellate Court has misread and misappreciated oral statement of the parties and documentary evidence more particularly the Exhibit P-1 and P-2 and the judicial record i.e. the judgment in Civil Suit No.312/1982 and execution petition No.1/91 and Civil Suit No.38/92 and thereby vitiated the impugned judgment and decree dated 28.04.2009, the Warrant of possession in decree dated 21.09.1990? 7. Mr. G.D. Verma, learned Senior Advocate with Mr. B.C. Verma, learned counsel for the plaintiff, on the - 5 - basis of substantial questions of law has vehemently argued that the learned Additional District Judge has misappreciated and misread the oral statements of the parties and documentary evidence, more particularly, Ex.P- 1 and Ex.P-2. He then contended that the learned Additional District Judge has misread the judgment in civil suit No.312 of 1982 and Execution Petition No.1 of 1991 as also civil suit No.38 of 1992. In other words, he has supported the judgment and decree passed by the learned trial Court. He finally argued that the suit land has been properly identified in the plaint. 8. Mr. Bhupender Gupta, learned Senior Advocate with Mr. Neeraj Gupta, learned counsel for the defendants has supported the judgment passed by the learned first appellate Court. 9. I have heard the learned counsel for the parties and gone through the pleadings carefully. 10. Since all the substantial questions of law are interconnected and interlinked, they were taken up together for hearing and are taken up together for determination to avoid repetition of discussion of evidence. 11. Plaintiff has appeared as PW-1. According to him, he and his brother had come in possession of the suit land through partition vide court order dated 24.5.1995. According to him, the defendants had started interfering in - 6 - the suit land without any right, title or interest. He has admitted that the suit land is abadi, but denied that the abadi of Dhian Singh was also situate therein. He stated that the abadi of Dhian Singh was separate and was on a different number. PW-1 has categorically admitted in his cross-examination that Dhian Singh was not a party in the partition proceedings. 12. Dhian Singh has appeared as DW-1. He has deposed that his house is situate over the suit land. He has also deposed in his examination-in-chief that he was not a party to the partition suit. DW-2, Rood Singh has deposed that defendant Dhian Singh has the residential house on the suit land. According to DW-2 also, Dhian Singh was not made party in the partition proceedings. 13. Moreover, defendant No.3, Dhian Singh in his written statement has admitted that the suit land was abadi land. Defendant No.3, Dhian Singh has specifically averred in the written statement that any findings recorded in civil suit No.38 of 1992 were not binding on his rights since he was not a party in the litigation. In the replication filed to his written statement, the plaintiff has admitted that defendant No.3, namely, Dhian Singh was not a party to civil suit No.38 of 1992, but he was threatening to interfere in the suit land. - 7 - 14. The plaintiff has failed to prove on record that Dhian Singh was a party to civil suit No.38 of 1992. The judgment rendered in partition suit bearing civil suit No.38 of 1992 was a judgment in personam and not in rem. Since Shri Dhian Singh was not a party to the partition proceedings, he is not bound by the same. 15. The plaintiff had filed the suit for permanent injunction. As far as the question with regard to identification of the suit property is concerned, the plaintiff has given complete detail of Khasra numbers. It is specifically averred by defendants No.1 and 2 and Rood Singh in their written statement that there was no objection regarding description of the suit land. Moreover, no issue was framed with regard to the description of the suit land. The parties had well identified and understood the description of the suit property which was the subject matter of the suit and had gone to trial with a clear understanding of rival contentions. Thus no prejudice was caused to either of the parties so far as the description of suit land is concerned. The description of the suit property was given as per Khasra numbers. It was identified as Abadi land in Mohal Mugdial, Mauja Chhattar, Tehsil Nurpur, District Kangra. In view of this, it cannot be said that the property could not be identified for granting the relief of permanent injunction. The findings recorded by - 8 - the first appellate court to this effect are liable to be set aside. 16. A Full Bench of Allahabad High Court in Ganesh v. Sri Ram Lalaji Mahraj Birajman Mandir and others, AIR 1973 Allahabad, 166 has held that when the other description of property is sufficient to identify it and at no stage of the suit had the parties raised any dispute as to the identity of the suit property, the court in exercise of its powers under Sections 151 and 152 can correct any error or misdescription in the decree pertaining to the boundaries of the suit property. Their Lordships have held as under (paras 8, 9 and 10):- “Aziz Ullah Khan’s case. AIR 1932 All 587 therefore, is an authority for the proposition that such accidental mistakes, as had occurred in that case, can be corrected by the court, apart from the powers exercisable under Section 152 of the Code of Civil Procedure, under the powers exercisable under Sections 151 and 152 of the Code of Civil Procedure, if such correction is necessary for the ends of justice. Respectfully we agree with the view expressed by the learned Judges in Aziz Ullah Khan’s case, AIR 1932 All 587 (supra) and affirm that view. A Division bench of the Oudh Chief Court in Ruhulghani’s case (supra) also held that clerical mistakes occurring due to inadvertence in a mortgage deed giving rise to repetition of the same mistake in the plaint and the decree can be corrected in exercise of powers under Sections 151 and 152 of the Code of Civil Procedure. This case was also a case of incorrect description or misdescription of an item of the mortgaged property. - 9 - Although in this case Aziz Ullah Khan’s case was not referred to or considered, the learned Judge independently of it came to the same view as had been taken earlier by the bench of this Court in Aziz Ullah Khan’s case. Reference, however, was made to Shujaatmand Khan’s case, but it was distinguished. Shujaatmand Khan’s case was not a case of some accidental or inadvertent mistake committed by the parties. What had happened was that a mortgage deed was executed on 16th December, 1897 hypothecating eight zamindari properties. Another mortgage deed was executed in 1905 in respect of the same eight properties and also a house. In 1914 a mortgage by conditional sale was executed in respect of the eight zamindari properties and also the house besides a grove. The description of the zamindari shares and the boundaries of each item of the properties of the mortgage deed of 1914 were precisely the same as in the two earlier mortgages. Meanwhile, however, there was a Settlement in 1901, as a result of which the proportionate shares of the mortgagors in the Mahals were changed. After the passing of a preliminary decree in the suit filed on the basis of the 1914 mortgage an application under Section 152 of the Code of Civil Procedure was filed alleging that there had been a misdescription of the mortgaged shares in the mortgage deed of 1914. A prayer was made for an amendment of the plaint and the preliminary decree. The High Court held that the amendment which was sought would completely alter the plaint and the decree and also the deed on which the plaint was based. In the circumstances the learned Judges were of the view that there was in reality no clerical mistake which could be corrected under Section 152 of the Code of Civil Procedure. It will thus be seen that Shujaatmand Khan’s case is clearly distinguishable on facts. There it was as a result of - 10 - Settlement operations that certain changes came about in regard to the shares of the mortgagors in the Mahal. It was not a case of any clerical mistake or accidental misdescription of property due to acts or omissions of parties as in the instant case. The learned counsel for the contesting judgment- debtor urged before us on the basis of reported decisions of other Courts that in the circumstances of the case the amendments prayed for could not be legally ordered either under Section 151 or 152. He relied on the decision of the Madras High Court in Ramakrishanan v. Radhakrishanan, (AIR 1948 Mad 13). The learned counsel for the applicant, however, pointed out that in a later case of Krishna Poduval v. Lakshmi Nathiar, (AIR 1950 Mad 751) the Madras High Court itself took a different view. The learned counsel also pointed out that the view taken by this Court in Aziz Ullah Khan’s case has been followed by other High Courts. He referred to in this connection a decision of the Patna High Court in Jagarnath Prasad Bhagat v. Jamuna Prasad Singh, (AIR 1934 Patna 493). The learned counsel for the judgment-debtor also referred to the decision of the Rajasthan High Court in Kistoormall v. Sattar Mohammed, (AIR 1958 Raj 276). We, however, do not consider it necessary to discuss these cases, as, in our opinion in the circumstances of the case for the ends of justice, corrections can be made or permitted to be made in the plaint as well as the decree, as was held in Aziz Ullah Khan’s case by a Division Bench of this Court and in Ruhulgani’s case by the Oudh Chief Court. Besides, we may mention that the Supreme Court in Janakirama Iyer v. P.M. Nilakanta Iyer, (AIR 1962 SC 633) has held that inadvertent or clerical mistakes in the decree can be corrected by the High Court under Sections 151 and 152 of the Code of Civil Procedure even during the pendency of an appeal in the Supreme Court. We are thus of opinion that - 11 - under the circumstances of the instant case the two applications could be legally entertained and deserve to be allowed. Before parting with the case we may also refer to Order VII, Rule 3 of the Code of Civil Procedure, which provides:- “Where the subject-matter of the suit is immoveable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of Settlement or Survey, the plaint shall specify such boundaries or numbers.” It will thus be seen that what the law requires is that the description of the property in suit given in the plaint must be sufficient to identify the property. If independently of the boundaries the property can be sufficiently identified, then any error or misdescription in the boundaries cannot affect either the suit or the decree passed in the suit. In the instant case, as already mentioned, no dispute at any time was raised that the suit property and the property in respect of which the decree was passed is not identifiable on the spot or it is property different from the property which was purchased by the plaintiff from Panna Lal and for the delivery of which the suit was filed. In the circumstances, in our opinion, ends of justice require that the two application should be allowed and the amendments prayed for be made.” 17. Accordingly, in view of the observations and discussions made hereinabove, the regular second appeal is partly allowed. The findings recorded by the first appellate Court that the suit property was not identifiable, - 12 - are set aside. However, the findings recorded by the first appellate Court that since Shri Dhian Singh was not made a party in the partition suit, the judgment is not binding on him, are upheld. Consequently, the suit is dismissed. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma), Judge. August 12, 2011. (sck).