IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 OP(C).No. 3214 of 2011() ---------------------------------- OS.454/2006 of MUNSIFF COURT, CHITTUR .......................................... PETITIONER : -------------------- VIMALADEVIAMMA, W/O.GOPALAKRISHNA MENON, AGED 80 YEARS, RESIDING AT VADATHALA VEEDU, THENGUPADAM, THIRUVAZHIYAD VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.BABY MATHEW RESPONDENTS: ----------------------- 1. GIRIJA, W/O.KANNAN NAIR, AGED 48 YEARS, RESIDING AT VADATHALA HOUE, THEKKETHARA, AYLOOR P.O., CHITTUR TALUK, PALAKKAD DISTRICT, PIN-678 001. 2. KOMALAVALLI,W/O.SUNDARAN, AGED 52 YEARS, RESIDING AT ANTHUR HOUSE, PADINJARATHARA, AYLOOR P.O., CHITTUR TALUK, PALAKKAD DISTRICT, PIN-678 001. BY THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 03/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV OPC.NO.3214/2011 APPENDIX PETITIONER(S) EXHIBITS : EXHIBIT P1 : COPY OF THE JUDGMENT DATED 13/1/2009 IN O.S.NO. 454/2006 OF THE MUSNIFF COURT, CHITTUR. EXHIBIT P2 : COPY OF THE APPLICATION IN FD I.A NO.2270/2009 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, CHITTUR. EXHIBIT P3 : COPY OF THE INTERIM REPORT DATED 28/2/2011 SUBMITTED BY THE ADVOCATE COMMISSIONER. EXHIBIT P4 : COPY OF THE APPLICATION TO AMEND THE SURVEY NUMBER IN I.A NO.1118/2011 FILED BY THE PETITIONER BEFORE THE MUSNIFF COURT,CHITTUR. EXHIBIT P5 : COPY OF THE APPLICATION IN I.A NO.1119/2011 TO AMEND THE PRELIMINARY DECREE FILED BY THE PETITIONER BEFORE THE MUSNIFF COURT,CHITTUR. EXHIBIT P6 : COPY OF THE APPLICATION IN IA NO.655/2011 TO AMEND THE FINAL DECREE APPLICATION FILED BY THE PETTITIONER BEFORE THE MUSNIFF'SCOURT, CHITTUR. EXHIBIT P7 : COPY OF THE COMMON ORDER DATED 1/7/2011 PASSED BY THE MUSNIFF COURT, CHITTUR. RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ P. A TO JUDGE AV THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3214 of 2011 ==================================== Dated this the 03rd day of November, 2011 J U D G M E N T With petitioner-first plaintiff on the party array, a preliminary decree for partition of property described as comprised in Sy. No.720/3 was passed. That was followed by an application for passing a final decree. In the final decree the Advocate Commissioner inspected the property and submitted report and plan. Based on the preliminary decree, it is submitted, property was put to auction in the final decree proceedings and purchased by petitioner. Now the sale certificate is to be issued to the petitioner. At that stage it was revealed that there was mistake in the survey number mentioned in the original title deed based on which parties claimed partition, the preliminary decree was passed and the application for passing final decree was filed. According to the petitioner, correct survey number is 537/17 but by an inadvertent mistake it happened to be mentioned as 720/3 in all the proceedings and in the original title deed based on which parties claimed title. That was sought to be corrected in the final decree proceedings by filing Exts.P3 to P5, applications. O.P(C) No.3214 of 2011 -: 2 :- Request was to amend the plaint, preliminary decree and the final decree application and correct the survey number as above stated. Those applications stand dismissed by Ext.P7, common order. That order is under challenge. 2. Learned counsel for petitioner contends that there is no dispute regarding identity of property, description or boundaries and that mistake is only as regards survey number as above stated which according to the learned counsel is by an inadvertent mistake. It is contended that only respondents 1 and 2 objected to the amendment while other respondents did not object. It is also contended that a correction of survey number as prayed for in Exts.P3 to P5, applications will not cause prejudice to the respondents. Learned counsel submits that it is the settled position of law that when there is conflict between survey numbers, extent, boundaries, description, etc., the one which is more clearer would prevail – in the present case there is no dispute regarding identity, description, boundaries and extent. Hence boundaries, extent and description should prevail over the mistake in survey number, it is argued. 3. No doubt, under Section 26 of the Specific Relief Act when through fraud or a mutual mistake of parties a contract or O.P(C) No.3214 of 2011 -: 3 :- other instrument in writing (not being the articles of association of a company to which the Companies Act 1956 [1 of 1956] applies) does not express their real intention, either party or his representative in interest may institute a suit to have the instrument rectified; or the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified; or a defendant in any such suit as is referred to clause (b) may, in addition to any other defence open to him, ask for rectification of the instrument. That power for rectification of an instrument in case of fraud or mutual mistake of parties can be exercised even when in any suit in which any right arising under the instrument is in issue. 4. In the present case, the mistake as learned counsel stated in the survey number emanates from the original document of title under which parties to this litigation claimed title. Admittedly the assignor or legal heirs of the assignor if the assignor is no more, are not parties to the present litigation. Without their junction even applying Sec.26 of the Act question of correction of the original title deed does not arise. The situation in this case is more precarious in that there is no prayer for correction of the title deed - nor could there be a prayer as O.P(C) No.3214 of 2011 -: 4 :- aforesaid without the junction of legal representatives of the assignor. If that be so, petitioner cannot request for amendment of plaint, preliminary and final decree decree and the application for passing final decree to correct the survey number as 720/3 while in the original title deed the survey number remains as 537/17. In that view of the matter I do not find reason to interfere with the impugned order. If petitioner has a contention that even with the wrong survey number there could be no dispute regarding identity, description, extent and boundary and hence boundary of the property should prevail, it is open to the petitioner to urge that contention at the appropriate Forum at the appropriate stage. Original Petition is dismissed with the above observation. THOMAS P. JOSEPH, JUDGE. vsv