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Judgment
A.S. Venkatachalamoorthy, J.—Plaintiffs 2 to 9 in O.S.93 of 1983 on the file of First Additional Sub Judge, Pondicherry are the appellants.
Plaintiffs filed the above suit against the respondents herein praying the Court to declare that they are absolute owners of the suit property in
question and further direct the first defendant authority by way of mandatory injunction to correct the revenue, settlement and commune Panchayat
records to incorporate the factum of ownership of the plaintiffs.
Briefly it is the case of the plaintiffs that plaint schedule property (a dry land comprised in Cadastre No.1251 to an extent of 1 Hectare 29 Ares
60 Centiares i.e., 2 Kanies 42 Kuzhies and situated in Thavalakuppam in Ariyankuppam Commune - 4 boundaries also given) originally belonged
to erstwhile Government of France in settlement of Pondicherry represented by the then Governor. By virtue of a deed of assignment of title dated
20.10.1952 and registered on 22.10.1952, first plaintiff got title to the property and since then he has been in possession and enjoyment of the
same. Subsequently, somewhere in 1957 when a branch of the then Government sought to make an untenable claim over the property, plaintiff
took the matter before the Administrative Court in Pondicherry which upheld the right of the first plaintiff. Few years thereafter, that was in 1963
again an attempt was made by the Government and again the Adminsitrative Tribunal upheld the right of the first plaintiff. In 1965, the third
defendant''s predecessor in office made a false claim over the property and for the third time the Administrative Tribunal rejected the said claim
and confirmed the first plaintiff''s title. On 10.1.1981 first plaintiff died and the suit property devolved upon the plaintiffs 2 to 9. The request made
to the Revenue authorities to make necessary corrections in the records failed. This prompted the first plaintiff to institute the suit for declaration
and mandatory injunction as referred supra.
The second defendant resisted the suit contending that the suit property bearing cadastre No.1251 measuring an extent of 1-29-60 Ha in village
No.69, Thavalakuppam has been classified as a Commune Poramboke land as per Cadastral records. This land and a part of another Government
Poramboke land bearing cadastre No.1236 were resurveyed as R.S.No.81/2 with an extent of 1-60-00 ha, and resurvey No.81/2 was settled as
a tank poramboke land. The suit property was assigned in favour of Thiru Perumal Gramini under folio No.1326 of Thavalakuppam and treated as
a patta land with effect from 13.10.1952. This assignment order was subsequently cancelled and the suit property was treated as a commune
poramboke land with effect from 17.7.1953. Even though this was subsequently set aside by the Administrative Court, the suit property was
expropriated for public purposes by a judgment of the Court of first instance dated 26.2.1954 and since then the property has been in the
possession of the commune. The further case of the second defendant is that though the land in question was assigned to the first plaintiff in 1952,
the same was acquired subsequently for public purposes. That apart, the plaintiff also did not pay any tax to the Government for the suit property
from the date of assessment i.e., from the date of assignment and that he is not in possession and enjoyment of the suit property as on date. The
plaintiff in fact approached the Deputy Collector to transfer the said property in his name. As directed by the Deputy Collector (Revenue) he
approached the Director of Survey and Land Records to register the said poramboke land in his favour. Since the Director of Survey has no
power to transfer any land registered as poramboke land in the cadastral records of Ex-French regime, the first plaintiff was informed to get the
cadastral records corrected in his favour since according to paras II and XVI of the Scheme report of resurvey and settlement, resurvey has to
follow the entries made in the existing cadastral records in the Pondicherry region published in Gazette No.6 dated 8.2.1972. The suit property has
not been registered in the name of the plaintiff and it is registered only as commune poramboke in the revenue records. The cession made in his
favour had not been acted upon and the land is only a commune land.
The third defendant filed a separate written statement contending that the land was assigned to the first plaintiff on condition that he should pay
certain amount which is equivalent to 30 years land revenue for the said land and that the first plaintiff neither paid the amount nor paid land tax.
The then French Government itself cancelled the assignment order in the year 1953 itself and the property bearing cadastre No.1251 measuring an
extent of 1-29-60 hector resurvey No.81/2 was treated as commune poramboke land with effect from 17.7.1953. From those days till date the
then Marie and then the present Ariyankuppam Commune Panchayat is in possession and enjoyment till date continuously without any interruption
whatsoever and the property in dispute is in the Government commune poramboke. According to this defendant, the Judgment of the
Administrative Court is not binding because the first instance of court has given Judgment in the year 1954 itself and that the plaintiffs failed to
prefer any appeal or taken steps to set aside the judgment of the first instance and therefore the judgment of the Administrative Court is not at all
binding on the defendant. Further, the plaintiff has not notified the Judgment as per the French Code procedure Civil. Plaintiffs also failed to give
notice to the third defendant before filing the suit as per law.
The trial Court after considering the oral and documentary evidence, came to the conclusion that Exs.A-1 to A-5 relied on by the plaintiffs
would establish their claim, that they are owners of the suit property. Trial Court also gave a direction for correction of the entries in the revenue
records by way of deletion of the existing entries and incorporating the factum of plaintiffs'' title to it. Trial Court declared that the plaintiffs are
entitled for the reliefs specified in the plaint.
The plaintiffs thereafter filed a memo before the trial Court under Sections 152 and 153 of CPC stating that in para 13 of the Judgment, trial
Court has given a finding that the suit property is 1-60-00 Hectares and as such schedule of property given in the decree will have to carry that
finding.
The Second respondent herein filed a counter raising an objection to the effect that the memo is not maintainable and that the petition for
amendment seeks to introduce the additional extent which is not described in the original plaint and if the amendment is allowed, it will add a new
cadastre number apart from the cadastre number mentioned in the plaint since as per the survey and settlement records and as per the resurvey
made by the Department, the original extent for cadastre No.1251 and 1236 part, is 1 Hectare 60 Ares, whereas the suit property comprises only
of 1251 and its original extent is only 1 Hectare 29 Ares and 60 Centiares.
However, the trial Court allowed the said memo and passed the order as under.
In the Judgment in para 13 it is mentioned that the extent of the suit property is only 1 H 60 Ares which is equivalent to 2 kanies 99 kulies. But in
the decree the extent of the schedule of property is mentioned as 1 Hectare, 29 Ares, 60 Centiares i.e., 2 kanies 42 kulies. Hence, I am of the
view that the schedule of property found in the memo has to be added in the decree in the above suit.
In the result, the memo prayer is allowed. No costs.
As against the amended decree, the respondents herein filed an appeal in A.S.19 of 1988 on the file of Principal district Judge, Pondicherry.
The learned District Judge held that as the trial Court decreed the suit only with reference to the plaint schedule property, the amendment of decree
ordered by the trial Court has to be set aside and consequently allowed the appeal.
At the time of admission of the second appeal, this Court framed the following substantial question of law,
Whether the lower appellate Court is right in holding that the application for amendment of the decree u/s 152 C.P.C., is not maintainable and
whether he is right in setting aside the amended decree and restoring the original decree ?
According to the plaintiffs, suit property was assigned under a document to first plaintiff viz., deceased Perumal Gramini way back in the year
1952 and Ex.A-1 is the said document. The document is in French, but however, a translated copy was provided even before the trial Court. The
relevant portion in the said document reads thus,
The Governor of the Republic of French India in his above capacity cedes, leaves and transfers absolutely with guarantee against all troubles and
evictions to the above said Perumal Cramany the plot of dry land of Cadastre No.1251 of an area of 1 Ha. 29a. 60 Ca., being 2 Kanys 42 Coajis
3/16 taxed at 1 R. 822 and situated at Tavalacoupom Ariancoupom Commune at the south of the road at the west of the road and the canal at the
north of the plots No.1469 and 1470 of Auguste Prosper and the canal and at the East of the border of Archivak village.
It is for this property that the first plaintiff was fighting for with the respondents for more than three decades even prior to filing of this suit and there
were various proceedings before various authorities/tribunals. The description is same in the plaint schedule also. So, the plaintiffs knew very well
as to what is the extent of property they have been claiming and fighting for.
In para 13 of the trial Court Judgment it is stated that the defendants 1 and 2 in their written statement have stated that the existing extent of suit
land is 1-60-00 Ha., which is brought under resurvey No.81/2 and that as regards this, there is no contest and therefore the suit lands have to be
with an extent of 1-60-00 Ha under this cadastre No.1251 now R.S.No.81/2 to avoid any further confusion or conflict between the parties.
We may straight away say that the trial Court had misread the pleadings in the written statements filed by the defendants 2 and 3 as could be
gathered from the following.
(a) The second defendant, who is the proper authority to speak about as to what is reflected from the relevant records, in para 4 of the written
statement had stated as under:
This defendant submits that the suit property bearing Cadastre No.1251 measuring an extent of 1-29-60 ha., in village No.69, Thavalakuppam
has been classified as a commune poramboke land as per cadastre records. This land and a part of another Government poramboke land bearing
cadastre No.1236 were resurveyed as R.S.No.81/2 with an extent of 1-60-00 ha., and Resurvey No.81/2 was settled as a Tank poramboke
land. ...
(b) Third defendant, who is the Ariyankuppam Panchayat, in para 3 of the written statement had stated as follows,
The then French Government itself cancelled the assignment order in the year 1953 itself and the property bearing cadastre No.1251 measuring
an extent of 1-29-60 hector resurvey No.81/2 was treated as Commune Poromboke land with effect from 17.7.1953. ...
It is not known how the trial Court came to the conclusion that 1st and 2nd defendants admitted that cadastre No.1251 corresponds to new
survey No.81/2 with an extent of 1-60-00 ha. In fact no written statement was filed by the 1st defendant.
That apart, in the counter filed to the memo, the second respondent has categorically stated in para 2 that as per the survey and settlement
records and as per the resurvey made by the department, the original extent for cadastre No.1251 and 1236 pt is 1 hectare 60 ares, whereas the
suit property comprises only of 1251 and its original extent is only 1 hectare 29 ares and 60 centiares.
In these circumstances, it is rather surprising as to how the trial Court in its order dated 31.7.1987 passed on the memo filed by the plaintiffs,
has without applying its mind simply stated that in para 13 of the judgment it is stated that the extent of suit property is 1-60-00 Ha and the same
has to be incorporated in the decree. If really it is a fact that four boundaries mentioned in Ex.A-1 viz., assignment deed covers an area of 1-60-00
Ha, plaintiffs who have been fighting for the past three decades prior to filing of the suit, would have stated so in the plaint. That apart, at least after
defendants 2 and 3 filed their written statements if plaintiffs were of the view that those defendants have conceded that the property assigned under
Ex.A-1 is to an extent of 1-60-00 Ha, they would have filed an amendment application to amend the plaint. It is very clear that the plaintiffs filed
the memo only to take advantage of the mistake committed by the trial Court, even though they knew fully well that they have been right through
claiming title to the property of an extent of 1-29-60 Ha. This Court has no hesitation to hold that the plaintiffs have filed the memo with bad
intention to get some wrongful gain. At the risk of repetition this Court has to observe that initially the trial Judge did not apply his mind and
understood the facts correctly. What is surprising is that trial Court allowed the amendment without even considering the objections raised by the
second defendant as already referred to above. All that is stated in the order passed in the memo is that the second respondent raised objections.
From the facts and circumstances this Court is constrained to hold that when the trial Court passed the order on the memo allowing the prayer for
amendment of the decree the Court knew fully well that the plaintiffs would be entitled only for 1-29-60 Ha., but passed the order on the memo
declaring title to an extent of 1-60-00 Ha, as prayed for by the plaintiff only to oblige them and the reason for that is not known.
That apart, it has to be pointed out that the Court cannot grant a larger relief than what is asked for. As already pointed out, there is no claim in
the plaint claiming title for an extent of 1-60-00 Ha. No petition to amend the plaint was filed by the plaintiffs. What was filed was only a memo
purported to be u/s 152 and 153 of Code of Civil Procedure.
Let this Court proceed to refer to few rulings on the ambit and application of Section 152 of Code of Civil Procedure.
The Supreme Court had an occasion to consider the same in Dwaraka Das Vs. State of Madhya Pradesh and Another, , wherein the Supreme
Court observed as under,
Section 152, C.P.C., provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any
accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the Court of its ministerial actions and does not
contemplate of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the
judgment, decree or order, Court or the Tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees
and orders earlier passed. The correction contemplated are of correcting only accidental omission or mistakes and not all omissions and mistake
which might have been committed by the Court while passing the judgment, decree or order. The omission sought to be corrected which goes to
the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review
application. It implies that the Section cannot be pressed into service to correct an omission which is intentional, how erroneous that may be. ...
In Jayalakshmi Coelho Vs. Oswald Joseph Coelho, , again the Supreme Court while considering Section 152, observed as under,
... there would hardly be any doubt about the proposition that in terms of Section 152 CPC, any error occurred in the decree on account of
arithmetical or clerical error or accidental slip may be rectified by the court. The principle behind the provision is that no party should suffer due to
mistake of the court and whatever is intended by the court while passing the order or decree must be properly reflected therein, otherwise it would
only be destructive to the principle of advancing the cause of justice. .... It is further observed that the provisions cannot be invoked to modify, alter
or add to the terms of the original decree so as to in effect pass an effective judicial order after the judgment in the case. ..... Liberal use of the
provisions u/s 152 CPC by the courts beyond its scope has been deprecated. ...
In yet another recent Judgment reported in M/s. Plasto Pack, Mumbai and Another Vs. Ratnakar Bank Ltd., the Supreme Court reiterated the
ruling in K. Rajamouli Vs. A.V.K.N. Swamy, :that a petition to amend the decree cannot be exercised so as to add or substract any relief granted
earlier.
From the above rulings it is clear that unless the Court is satisfied that while passing decree the Court had in its mind that the order or decree
should be passed in a particular manner but that intention has not been translated into the decree or order due to clerical, arithmetical error or
accidental slip, the amendment cannot be allowed. The facts and circumstances may provide clue to the fact as to what was intended by the Court
but unintentionally the same does not find mention in the order or the judgment or something which was not intended to be there stands added to it.
Coming to the present case, as this Court already pointed out, the trial Court initially misread the pleadings, in particular the written statement
filed by the second defendant. Even assuming in para 13 of its judgment the Court bona fide came to the conclusion that plaintiffs would be entitled
for 1-60-00 Ha, the trial Court granted decree only with regard to the plaint schedule property viz., to an extent of 1-29-60 Ha. Obviously this is
because trial Court realised that it cannot grant a larger relief, particularly when there is no pleading that the area within the four boundaries
mentioned in plaint schedule is 1-60-00 Ha. Certainly the trial Court had no intention that the decree should be passed to an extent of 1-60-00 Ha.
When that is the position, the trial Court should not have granted the prayer made in the memo filed by the plaintiff and passed decree for a larger
area than claimed in the plaint. As already pointed out what is surprising is that the trial court, in spite of the clear objection and without assigning
any reason and without considering the objection, straight away allowed the petition.
In the result, the appeal filed by the greedy and unwise plaintiffs 2 to 9 is dismissed with costs of Rs.6,000/- payable by plaintiffs 2 to 9
together. Out of this amount, each of the respondents shall be entitled for a sum of Rs.2,000/-. The cost shall be deposited in the trial Court within
eight weeks from to-day.
Pending appeal, it appears, a Commissioner was appointed who has filed reports and plans. But however, the correctness of the same is being
questioned by the respondents as well as by some third parties, who have filed impleading petition before this Court in this appeal. It is made clear
that this Court has not gone into and considered the said plans and reports and ascertained the correctness of the same as such exercise is
unnecessary for the purpose of deciding this case. C.M.P.15757 of 2001 stands closed.