AI Structured Summary
Not yet generated for this judgment
Judgment
Justice Rajiv Sharma, Judge
This Regular Second Appeal is directed against the judgment and decree dated 20.5.2011 rendered by the learned District Judge, Mandi in Civil Appeal No. 16/2009. Material facts necessary for the adjudication of this Regular Second Appeal are that respondent No. 4 Smt. Mansa Devi filed a suit against respondents-defendants No. 1 to 3 and one Smt. Judhya Devi in respect of the suit land, which was later on compromised. Respondent-defendant No. 4 Mansa Devi was declared by the court to have become owner of the entire suit land by way of adverse possession. Smt. Judhya Devi died on 16.6.2002 and application under order 22 rule 4 of the CPC was filed and the same was allowed by the trial court on 19.5.2004 and the respondents-defendants were re-arranged by deleting the name of Judhya Devi from the array of respondents. The decree was given effect to in the revenue record by attesting the mutation and making an entry in the Jamabandi. Respondent No. 4 Smt. Mansa Devi approached the present appellants-plaintiffs (hereinafter referred to as ''plaintiffs'' for convenience sake) and shown her willingness to dispose of the land. Plaintiffs purchased the suit land for a consideration of `one lakh on 27.9.2000. Mutation No. 1279 was attested in favour of the plaintiffs on 8.4.2001. Later on, it transpired that respondents No. 1 to 3, including Judhya Devi, moved an application u/s 152 of the CPC in the trial court for amendment of the decree. The decree was consequently amended by the court and it was held that the suit land only measured 23.4 square yards and not 341.2 square yards. The application was assigned Sr. No. 193/2001. According to the plaintiffs, they were not heard before the orders were passed on 5.4.2001. According to them, the impugned order was null and void.
Respondents resisted the suit. On merits, it was clarified that the previous suit was filed for adverse possession in respect of the share of respondent-defendant No. 4 Smt. Mansa Devi, i.e. 23.4 square yards and was decreed wrongly to the extent of entire suit land, which was never claimed by her. The father of plaintiffs No. 1 and 2 obtained copy of the order and knowing fully well that the wrong decree has been passed took advantage of the bona fide mistake and the property was purchased by them. The mutation was also attested wrongly in their favour. They also started demanding the entire suit land, i.e. 341.2 square yards. According to them, an application u/s 152 of the CPC had been moved strictly in accordance with law for correction of arithmetical mistake. According to them, only land measuring 23.4 square yards has been sold by Smt. Mansa Devi to the plaintiffs for consideration of ` one lakh. Respondents No. 1 to 4, namely, Rakesh Kumar, Pawan Kumar, Smt. Reena Devi and Smt. Mansa Devi also filed counter-claim for setting aside the sale deed made by respondent No. 4 Smt. Mansa Devi in favour of the plaintiffs.
Replication was filed by the plaintiffs. The counter-claim was also resisted by the plaintiffs by filing written statement. Replication to the counter-claim was filed by the respondents-defendants. Issues were framed by the Civil Judge (Senior Division), Jogindernagar on 16.5.2005. He dismissed the suit on 31.7.2007. Plaintiffs preferred an appeal before the District Judge, Mandi. He also dismissed the same on 20.5.2011. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law:
Whether the impugned judgments and decrees are result of misread and misinterpretation of the exhibit PW-1/A to PW-1/D (copy of application, reply and order)?
Whether when once a suit on the basis of one document has been decreed and decree becomes final and counter claim of defendant has been withdrawn, can subsequently, on the basis of same document, suit of defendants can be dismissed?
Mr. T.S. Chauhan has strenuously argued that there is misreading and mis-appreciation of the documents placed on record by the parties. According to him, application u/s 152 of the CPC was not maintainable.
Mr. Ramakant Sharma has supported the judgments and decrees passed by the first appellate court.
I have heard the learned counsel for the parties and have perused the pleadings carefully.
Plaintiff has examined PW-1 Yoginder Singh. He has proved on record Ex. PW-1/A, Ex.PW-1/B, Ex.PW/1-C, decree sheet Ex.PW-1/D, certified copy of plaint Ex.PW-1/E in Civil Suit No. 145/1999, certified copy of compromise Ex.PW-1/F and Ex.PW-1/G.
PW-1 Ajay Kumar has testified that the suit land is 341.2 square yards. They have purchased the land after verifying that Smt. Mansa Devi was the owner of the suit land.
PW-3 is Amarjeet Singh. He has testified that in his presence Mansa Devi agreed to sell the land to the sons of Netar Singh and brother Gopal Singh.
Defendants have examined DW-1 Manohar Lal. He has proved the copy of sale deed Ex.DW-1/A. DW-2 Rakesh Kumar has testified that Mansa Devi has filed a suit to the effect that she was having 23.4 square yards and she be made owner of the same. However, due to mistake of the court, the entire land measuring 341.2 square yards was mutated in the name of Mansa Devi.
Defendants have also examined DW-3 Deepak. He testified that there are houses on the suit land and those are possessed by him, Netar Singh and Rakesh and alongwith these houses there are houses of Harbans, Krishan and Tek Chand.
PW-2 Ajay Kumar could not disclose of how many years he has seen the revenue records. Similarly, PW-3 Amarjeet Singh has not narrated where the agreement was executed. He was also not aware who has paid the money. The suit was filed by Mansa Devi for declaration to the effect that he has become owner of the land by way of adverse possession. Compromise was arrived between the parties. The suit filed by Mansa Devi was decreed to the effect that she has become owner in possession by way of adverse possession qua 23.4 square yards. However, the fact of the matter is that the decree was inadvertently drawn and the entire land mentioned in para 1 of the plaint was incorporated to be the suit land. The suit land measuring 23.4 square yards was part of the large chunk of land measuring 341.2 square yards. It is in these circumstances, an application u/s 152 of the CPC was filed by the respondents, including Judhya Devi. Judhya Devi has died on 16.6.2002 and her name was deleted from the array of respondents vide order dated 19.5.2004. The same is Ex.PW-1/A. Smt. Mansa Devi had filed reply to the same, i.e. Ex.PW-1/B. It is stated in the application that she had no objection in case the decree sheet is amended. The trail court ordered the correction of the decree sheet vide order Ex.PW-1/C dated 5.4.2001. The amended decree sheet is Ex.PW-1/D. Plaintiffs were neither necessary nor proper parties at the time when the application u/s 152 of the CPC for carrying out arithmetical correction was filed. The correction even could be carried out sue motu by the Court. The party cannot be permitted to suffer due to the mistake of the court. The bona fide mistake which has crept in the records has been set right by the court while allowing an application Ex.PW-1/A on 5.4.2001 vide Ex.PW-1/C. The remedy available to the plaintiffs was either to sue Smt. Mansa Devi for damages or filing a suit to claim money paid to her. Smt. Mansa Devi being the owner of land measuring 23.2 square yards could not sell the entire land measuring 341.2 square yards to the plaintiffs. It is in these circumstances that the counter-claim filed by the respondents No. 1 to 3, namely, Rakesh Kumar, Pawan Kumar and Reena Devi has been allowed by the trial court. Allowing the counter-claim filed by the respondents has cut-short the litigation. It is in these circumstances, the trial court has correctly declared the sale deed made in favour of the plaintiffs by Mansa Devi null and void. Moreover, what the trial court has done by allowing application u/s 152 of the CPC is that decree has been brought in conformity with the judgment passed by the courts below have correctly appreciated the oral as well as documentary evidence. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.