Chandgi Ram vs Janardhan and Others

Rakesh Kumar Jain, J.—This revision is against the order dated 05.2.2001 by which application filed under Section 152 of CPC by the petitioner has been dismissed. In short, Civil Suit No. 518 of 1986 was filed by Janardhan son of Man Singh and Mangat Ram son of Sundra Ram against Chandgi Ram and others, for seeking declaration that they are entitled to inherit the estate of Beg Raj deceased to the extent of their shares in the land described in the plaint.

During the pendency of the suit, plaintiff No. 1 namely Janardhan suffered a statement withdrawing his name vide order dated 04.11.1992.

The trial Court vide its judgment and decree dated 28.10.1996 held the other plaintiff, namely Mangat Ram to be entitled to inherit the estate of Beg Raj to the extent of his share alongwith other legal heirs.

Aggrieved against the judgment and decree of the trial Court, Chandgi Ram, who happened to be one of the nephews of Beg Raj filed the first appeal in which following decree was passed by the learned Additional District Judge, Karnal on 24.12.1997:-

"It is ordered that only Chandgi Ram and Janardhan are entitled to succeed the estate of deceased Beg Raj by way of natural succession. The appeal stands allowed".

Chandgi Ram, who had filed the appeal, had also filed an application under Section 152 of CPC on the ground that the learned Appellate Court has committed an error of commission by including the name of Janardhan also as heir of Chandgi Ram to succeed to his property to the extent of his share, though Janardhan had withdrawn from the suit as per order dated 04.11.1992 and could not have been granted decree being not a party to the suit.

The said application has been dismissed by the learned Appellate Court on the ground that it is not an error of commission. Reasons have been given in paras No. 10 and 11 of the judgment dated 24.12.1997 as to how Janardhan would succeed to the property of Beg Raj as his heir.

Learned counsel for the petitioner has argued that once Janardhan has withdrawn from the suit, there is an error committed by the learned Appellate Court in passing the decree in his favour also which is required to be rectified in terms of Section 152 of the Code.

On the other hand, learned counsel for the respondents has argued that there is no typographical or error of commission on the part of the learned Appellate Court, while passing the decree in favour of Janardhan, rather reasons have been assigned in the judgment by the learned Appellate Court for holding Janardhan also a legal heir of Beg Raj to succeed to his property despite the fact that the learned Appellate Court knew that Janardhan had withdrawn from the suit before the trial Court itself.

I have heard learned counsel for the parties and after examining the record, am of the considered opinion that this revision deserves to be dismissed. Section 152 of the Code reads as under:-

"Amendment of judgments, decree or orders.- Clerical or arithmetical mistakes in judgments, decrees or order or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties".

There is no doubt that power is granted to correct its error from any accidental slip or omission in the judgments, decrees or orders either of its own motion or on the application of the parties concerned, but those are only clerical or arithmetical mistakes or any error of omission also, but once the judgment is passed on merit by the Court, it is not accidental slip or clerical mistake, which could only be corrected by way of appeal. Paras No. 10 and 11 of the judgment of the learned Appellate Court where in reference was made about withdrawal of Janardhan from the suit and holding him entitled to the property of Beg Raj by way of natural succession, are reproduced here for ready reference:-

"10. Counsel for the appellant has not pressed the plea of his having adopted by said Beg Raj. He has rather raised a legal plea of natural inheritance. Elaborating on this point he has argued that by way of natural inheritance only Chandgi Ram and Janardhan would be entitled to succeed the property of Beg Raj. There is force in this contention. Beg Raj died widower/issueless on 17.7.1967 as evident from the death certificate Ex. PW 4/A (Ex. D. 3). He had thus no class-I heir. His three brothers namely Des Raj, Shibba and Sunder had predeceased him as they had died prior to him on 24.6.1944, 8.6.1961 and some where in 1963 respectively as evident from the death certificates Ex. D1 and D2 pertaining to Des Raj and Shibba and the document Ex. D-6 relating to Sunder wherein it is recorded that he died some where in 1963. Thus, on the death of Beg Raj on 17.7.1967 there were only two living brothers. They were Man Singh and Indraj. They being the brothers are heirs specified in Class-II of the Schedule entitled to inherit the property. They had not taken any steps. Subsequently, Indraj died on 01.7.1977 and Man Singh died on 10.5.1984 as evident from the death certificates Ex. D. 4 and D. 5 respectively placed on the record. The date of said deaths indicated above are not in dispute. On the death of said living brothers of Beg Raj the natural heirs of the property of the deceased Beg Raj are the sons of said Indraj and Man Singh. Janardhan is the son of Man Singh whereas Chandgi Ram present appellant is the son of Indraj. They are heirs by virtue of IV(I) specified in Class-II of the Schedule are only entitled to succeed the property of Beg Raj. Said Janardhan had withdrawn himself from the plaintiff and now has been impleaded as one of the respondents. However, so far the case of Mangat Ram is concerned, he does not figure any where in natural succession as specified in the schedule since his father Sunder had predeceased Beg Raj. There is no dispute about the dates of the said deaths taken place as no contrary evidence has been led by the respondent plaintiff Mangat. His counsel is also not in a position to rebut the said legal aspect of ''natural succession'' in favour of Janardhan and Chandgi Ram to inherit the estate of deceased Beg Raj".

"11. Faced with the difficulty the counsel for the respondent has taken a legal objection. He has argued that the plea of natural succession has not been taken in the written statement and now the present appellant cannot go beyond the pleadings. He in support of his contention has placed reliance upon Chander Kishore Sharma and Another Vs. Kampa Wati, wherein it has been held that the evidence beyond the pleadings cannot be relied upon and Bhagat Ram Vs. Teja Singh wherein it has been held that the appellant cannot be allowed to raise the plea that was not specifically pleaded in the written statement. There is no dispute of the said preposition of law but to my mind it is no help to the respondent-plaintiff. It is settled rule of law that averments made in the pleadings have to be liberally construed. In the instant case the respondent-plaintiff Mangat Ram does not plead in his plaint that he is the exclusive owner of the estate of deceased Beg Raj, rather he has specifically pleaded that he and the defendants are co-owners and the deceased Beg Raj was their collateral. But the question arises, can he be coowner by way of natural succession? The answer is no, in view of the legal position as discussed above, the respondent-plaintiff also cannot wriggle out from the said situation and rather has no answer to the said legal position of natural succession. Thus, the appeal has to be allowed declaring Janardhan and Chandgi to inherit the estate of said deceased Beg Raj".

In view of the aforesaid discussion, I do not find any error in the order under challenge and hence this revision petition is hereby dismissed.