AI Structured Summary
Not yet generated for this judgment
Judgment
Indrajit Chatterjee, J.—1. This application under Article 227 of the Constitution of India has been filed by the opposite parties of J. Misc. Case No. 13 of 1994 which was disposed of by the learned Civil Judge, Junior Division, Contai, within the district of Purba Medinipore and the execution proceeding of that J. Misc. Case was filed by the present opposite parties which is still pending.
The said J. Misc. Case was disposed of on contest on 28.02.2008 and no revisional application was preferred as against the order/judgment passed in connection with that case. The opposite parties of this case being the petitioner in the trial court filed one execution petition before that court and another petition was filed by that party on 18.02.2009 for amendment of the schedule of the original petition. The present petitioner filed objection as against the said petition. That petition was filed under Sections 151, 152 and Order No. 6 Rule 17 of the Civil Procedure code (hereinafter called as the said code).
This revisional application has been preferred as against the order of the trial court dated 21.01.2010 wherein the learned trial court was pleased to allow the amendment petition authorizing the petitioner of that case to amend the schedule of the petition.
It may be mentioned that against the order No. 76 dated 09.03.2004 as passed by the learned Civil Judge, Junior Division, 1st Court, Contai, opposite party of the case filed one civil revision and that was disposed of vide civil revision No. 11 of 2004 wherein the learned revisional court was pleased to allow the revisional application ex-parte vide order dated 28.02.2008. That revisional court further observed that there was anomaly regarding the schedule property, that is, whether the suit property was 0.07 1/2 decimal or whether it is 7 1/2 decimal. The learned Revisional Court was pleased to set aside the order of the trial court and directed the learned trial court to decide the petitioner''s claim vide the execution petition under Section 151 C.P.C. dated 05.02.2003.
The learned Additional District Judge disposed of the case by an ex parte order dated 28-2-2008 and the said J. Misc. Case was remanded back to the learned trial court with this observation that there was vegness in the description of the properties mentioned in the schedule of the execution petition and the said court further ordered that the civil court has the inherent jurisdiction to rectify any technical error of its earlier orders and the said court also directed the trial court to reconsider and decide the petition filed by that petitioner before that court against the execution petition dated 05.02.2003 as filed under Section 151 of the C.P.C.
The opposite parties preferred this application as against the order dated 21-8-2010 in that J. Misc. Case No. 13 of 1994 wherein the said learned court was pleased to allow the application dated 18-2-2009 as filed by the petitioner of that case under Section 151/152 and Order 6 Rule 17 of the Code of Civil Procedure.
It is submitted by the learned Advocate appearing on behalf of the present petitioner/opposite party that after this order was communicated to the learned trial court one amendment petition was filed on 18-12-2009 by the present opposite parties before the trial court and the said petition was allowed on contest and in that petition, the prayer of that petitioner was allowed as regards the amendment of the schedule of the petition and the portion of land was converted to 7 1/2 decimal from 0.07 1/2 decimal. I have already told that as against the said order, this revisional application has been preferred.
It is submitted by the learned Advocate for the present petitioner/opposite party before the trial court that in the schedule of the petition under Section 8 of the West Bengal Land Reforms Act, it was mentioned as 0.07 1/2 decimal in plot No. 1638 out of 0.12 decimal and out of 0.10 decimal in the eastern side.
It was argued by the learned Advocate for the petitioner that after the order of the Additional District Judge, Contai, was passed by which the matter was remanded back for hearing on the point of the case property, the present application for amendment before the learned trial court ought not to have been allowed as in that judgment before the learned revisional court, the present petitioner has already got an advantage and that advantage cannot be taken away. It was the submission of the learned Advocate for the petitioner that such amendment as regards the property itself ought not to have been allowed by the learned trial court at that stage.
The learned lawyer appearing on behalf of the present petitioner/opposite party submitted by taking me to different documents as relied upon by him through the affidavit in reply to show that actually what was mentioned in that application filed under Section 8 of the West Bengal Land Reforms Act, cannot be said to be the right one and the order passed by the said court as referred to above allowing the amendment of the schedule was against the interest of his client and that it has not depicted the true picture of the schedule property. He also attacked the said impugned order by saying that actually the present opposite parties purchased 0.07 1/2 decimal.
He also cited a decision of the Supreme Court as reported in , 1971 (SC) 2177 Mohanlal Vs. Anandibai & Ors., wherein the Apex Court held that the amendments which could be allowed must relate and be consequential to the plea directed to be considered.
It is the case of the present opposite parties who are the petitioners before the learned trial court that there was mistake on the part of the learned advocate who drafted the copy of the application under Section 8 of the West Bengal Land Reforms Act as regards the schedule of the petition. He took me to that schedule of the petition to show that it is true that as per that schedule 0.07 1/2 decimal of land was mentioned in schedule.
He took me to the photocopy of that deed of purchase dated 3rd December, 1987 and registered on 06.12.1993 which is Annexure R3 of the affidavit in reply and as per that deed actually 7 1/2 decimal of the plot No. 1638 was transferred to the present petitioner, Prabhat Kumar Acharya by Jhareswar, Lalmohan and Parameswar. The typed copy of the said deed has also filed vide page Nos. 21-26. Thus, this petitioner purchased actually 7 1/2 decimal of the said plot by virtue of that deed and rest 2 1/2 decimal remained with the present petitioner even after the claim of pre-emption is allowed. The order dated 20.09.2002 (page No. 16) wherein the learned trial court specifically observed "no partition took place between them and they retained 2 1/2 decimal of land and rest 7 1/2 decimal of land sold to the original opposite party vide impugned deed........." (internal page No. 19).
It was further submitted by the learned advocate appearing on behalf of the opposite parties before the trial court that if the documents like the deed of sale photocopy of which has been marked as R-3 (page-15), objection filed by the opposite party of that case as against the amendment petition copy of which is at page-23 and the order passed by the learned trial court dated 09.03.2004 (at page No. 24) if perused it will prove that actually the suit property was 7 1/2 decimal and not 0.07 1/2 decimal. In the objection petition filed before the trial court by the present petitioner in respect of the petition dated 17.07.2003 as against the application filed by the present petitioners, will also prove that the suit property was 7 1/2 decimal. There is no mention that the land in question was not 0.07 1/2 decimal. In the final order impugned passed by the Civil Judge (Junior Division) dated 21.08.2010 no revisional application was preferred and as such the said order is final one. It was held by the learned trial court that as per written objection filed by the opposite party (now petitioners before this Court) that the petitioner took up a plea before that court that the impugned transfer deed was actually a loan in substance or mortgage deed and that the said opposite party gave one evasive denial in Paragraph No. 5 of the objection that the description of the schedule of land is vague and indefinite but the said opposite party did not try to clear the vagueness or the reasons for such vagueness.
The first Revisional Court in Civil Revisional Case No. 11 of 2004 in internal Page No. 3 "that might have been some clerical mistake in the description of the land in either of the petition but the fact remains that there was serious difference in respect of quantum of land for which the preemption was allowed. The quantum of land for which delivery of possession was prayed for". He further argued that as per the said order the said application was remanded back and it is now pending before the trial court.
Learned counsel also took me to the deed of sale (R3) to apprise this Court that in Page Nos. 15 and 17 that is the photocopy of the impugned question deed will reveal that the land transferred was 7 1/2 decimal of Plot No. 1638 (Page No. 15) and in Page No. 16 the property was also described as 7 1/2 decimal. Thus, he argued that as per the said deed only 7 1/2 decimal of Plot No. 1638 was transferred and the rest 2 1/2 decimal remained with the petitioner/opposite party. Thus, it is clear that due to some clerical error 0.07 1/2 decimal was wrongly written in the schedule of the petition instead of 7 1/2.
He cited a decision of this court as reported in 1990 (1) CLJ Page-550 (Kamala Bala Garai Vs. Samar Sen) wherein Division Bench of this Court held that a tenant is the best person to know what the property was about and that it being not the case of mistaken identity of property but misdescription of the property the decree can be amended even in execution case. That decision squarely will apply on the facts and circumstances of this case.
In the present case before the floor of this court the present petitioner purchased some property as per deed (R3) and he is the best person to say how much was he purchased. I have gone through the copy of the deed, the orders passed by the learned trial court, the objection petition filed by the present petitioners and on scrutiny of other documents as filed by the parties and on reading and rereading the questioned order this court is satisfied that the amendment petition was rightly allowed by the trial court vide order No. 113 dated 01.08.2010. The learned trial court held that said petition was allowed by invoking Sections 151 and 152 and Order 6 Rule 17 of the CPC.
Thus, this application made under Article 227 of the Constitution of India is answered in the negative and as such the order passed by the trial court dated 21.08.2010 is affirmed.
There will be no cost for this litigation.
The opposite parties of this litigation are directed to inform the trial court regarding this order.
The trial court after receipt of the communication of this court will amend the application under Order 6 Rule 17 and give reasonable opportunity to the present petitioner to file additional objection if any. This process must be finished within a gap of 30 days from the receipt of this order.
Considering the fact that the original J. Misc. Case under Section 8 land Reforms Act is pending more than two decades, the trial court must dispose of the execution petition as early as possible giving an opportunity to the other side of being heard.
Officer is directed to forward a copy of this order to the learned trial court.