Lakhbir Singh vs Avtar Singh

Punjab-Haryana High Court

Lakhbir Singh vs Avtar Singh on 1 July, 2024

            233
                       IN THE HIGH COURT OF PUNJAB AND HARYANA
                                     AT CHANDIGARH
                                                                                  CR-3397-2017
                                                                                            2017
                                                                 Date of Decision: July 01, 2024

            LAKHBIR SINGH                                                            ........Petitioner
                                                     Versus
            AVTAR SINGH                                                             ........Respondent

            CORAM:             HON'BLE MR. JUSTICE HARKESH MANUJA

            Present:           Mr. Ajay Pal Singh, Advocate for the petitioner.

                    Mr. M.S. Randhawa, Advocate for the respondent.
                                        ****
            HARKESH MANUJA,
                    MANUJA J. (ORAL)

By way of present revision petition, challenge has been laid to an order dated 13.01.2017 passed by the Executing Court Court,, Patiala whereby, an application filed at the the instance of petitioner/ petitioner/decree-holder der seeking following corrections correctio in the khasra numbers mentioned in the decree came to be partly allowed:-

allowed From Khasra Kha Nos. 53//2 (7-8)

8) to 53//25/2 (7 (7-8) and From Khasra Nos. 56//1 (4-11)

11) to 56//1/1 (4 (4-11)

2. Briefly stating, based on an agreement to sell d dated ated 03.01.2004, the petitioner/decree-holder petitioner/ holder filed a suit for possession by way of specific performance qua the following land against the respondent-judgment judgment debtor:-

debtor "37K-19M 19M being ½ share, out of land measuring 75K 75K-18M, 18M, comprised in Khewat No.17, Khatauni No. 43, Khasra Nos. 39//2/2/3/1(1 39//2/2/3/1(1-18), 3/2/2(0--

15), 7/1(2-4),8/1/2[2-9], 7/1(2 4/1/2 [1 - 12], 8/2[4 8/2[4-13],14(8-8), 16/2[2-16],17(8--

0),25/1(4

0),25/1(4-5),13/2(2-8),7/2(3-16),18/1(2-3

3),52//21/1(3-4),53//2(7-8), 55// 5/2 (7-8),56//1/1(4

8),56//1/1(4-11), 10[8-0], 0], situated at village Labana Karmu, Teh. Nabha, as per jamabandi for the year 2001-02 2001 02 along with share in Chah, Bore, Pakha, Khal, Rasta, Rast Paha, Pahi, etc."

3. The aforementioned suit after contest came to be decreed in favor of petitioner-plaintiff, vide judgment and decree dated 07.12.2009. Relevant extract from the decree sheet drawn on 07.12.2009 is reproduced hereunder:-

"This suit is presented today i.e. 07.12.2009 before me (Sh. Ranjit Kumar Jain, PCS, Civil Judge (Senior Division, Patiala) for final disposal, in the presence of Sh. Rakesh Gupta, Advocate for the Plaintiff, Shri J.D. Chopra, Advocate for defendant. It is hereby ordered that claim of plaintiffs succeeds and a decree for specific performance of agreement is passed in favour of plaintiff and against the defendant. Defendant is directed to execute the saledeed on the basis of agreement to sell in question within three months from today, otherwise, plaintiff shall deposit rest of the consideration amount plus expenses of execution of sale deed in the court within one month after these three months and file application for execution through the court. Plaintiff is also entitled for possession of the suit property after execution of sale deed. A further decree for permanent injunction is passed in favour of plaintiff and against the defendant restraining him from alienating the suit land in any way to any other person except the plaintiff. Parties are left to bear their own costs."

4. During execution, warrants of possession were issued, however, an objection was raised by the Executing Agency qua khasra Nos.53//2 and 56//1(4-11), the same not being part of revenue records and the decree being not executable in this regard. Faced with this, upon verification of the latest revenue record in the shape of jamabandi for the year 2010-2011, an application came to be filed at the instance of petitioner/decree-holder invoking Section 152 of Code of Civil Procedure 1908, for seeking correction of the abovementioned two khasra numbers. The said application was contested by respondent- judgment debtor. The Executing Court vide its order dated 13.01.2017, while relying upon the details of the land mentioned in the plaint, allowed the correction as regards khasra Nos.56//1 to 56//1/1 (4-11) TEJWINDER SINGH 2024.07.05 12:54 I attest to the accuracy and integrity of this document CR-3397-2017 -3- whereas declined the prayer qua correction of khasra No. 53//2 (7-8) to 53//25/2 (7-8). For the reasons that khasra No.53//2 (7-8) was never pleaded in the plaint being part of suit land.

5. Impugning the aforesaid order, learned counsel for the petitioner/decree-holder submits that the agreement to sell dated 03.01.2004 as well as the plaint were based on the revenue record available at that point in time especially in the shape of jamabandi for the year 2001-02 wherein, the respondent- judgment debtor besides his other land was incorrectly shown to be owner-in-possession of khasra No.53//2 (7-8) instead of khasra No.53//25/2(7-8) and as such the mistake in the agreement as well as in the plaint went on to be recorded in the decree. He further submitted that the error was only for bona fide reasons and the petitioner/decree-holder never gained anything illegal on that account and thus the decree was required to be amended/corrected. In this regard, learned counsel for the petitioner relies upon a judgment passed by the Hon'ble Apex Court in Civil Appeal No.1058 of 2009 titled as "Tilak Raj Vs. Baikunthi Devi"

reported as 2009(2) Civil Court Cases 381 (SC).

6. On the other hand, the prayer made herein has been vehemently opposed at the instance of learned counsel representing the respondent-judgment debtor while submitting that in the absence of any amendment been sought in the plaint as regards addition of khasra numbers, no correction could be ordered in the decree as the same would create an anomalous situation being against pleadings and accordingly, the impugned order warrants no interference.

7. I have heard learned counsel for the parties and gone through the paper-book. I find substance in the submissions made by learned counsel for the petitioner.

8. A perusal of record shows that besides other land which was made part of the agreement dated 03.01.2004 as well as the plaint dated 29.07.2004, khasra No.53//2 (7-8) was mentioned therein on the basis of the revenue records available at that point in time in the shape of jamabandi for the year 2001-02 and the respondent-judgment debtor/vendor was recorded to be owner-in-possession thereof. The correction of ownership qua khasra No.53//2 (7-8) to 53//25/2 (7-8) in favour of respondent-judgment debtor was carried out only at the time of preparation of jamabandi for the year 2011-12 reflecting him to be the owner of khasra No.53//25/2 (7-8) besides other land.

9. In such circumstances, the mistake committed by the plaintiff-petitioner/decree-holder while mentioning khasra No. No.53//2 (7-8) instead of 53//25/2 (7-8) in the agreement to sell dated 03.01.2004 and its reiteration in the plaint dated 24.07.2004 followed by inclusion thereof in the decree dated 07.12.2009 can only be said to be due to bona fide reasons based on the revenue records prepared and maintained by the authorities concerned at the time of execution of agreement to sell as well as at the time of filing of plaint and the petitioner cannot be faulted with or even cannot be non-suited on account of their fault qua the aforementioned Khasra No.53//25/2 (7-8) so as to deprive him of the benefits of decree dated 07.12.2009 passed in his favour. More importantly, that the respondent - judgment TEJWINDER SINGH 2024.07.05 12:54 I attest to the accuracy and integrity of this document CR-3397-2017 -5- debtor/vendor never ever disputed or challenged the correction of khasra girdawari in his favour for the land forming part of khasra No.53//25/2 (7-8) instead of khasra No.53//2 (7-8) as carried out in the jamabandi for the year 2011-12 by the revenue authorities and thus cannot claim any benefit on account of previous wrong entries. The afore-stated view finds strength from the decision made by the Hon'ble Apex Court in case of Tilak Raj(Supra). The relevant Paragraph No.17 thereof is reproduced hereunder for reference:-

"We feel that if we direct the appellant to seek remedy under the provisions of Section 152 of the CPC, it will only delay and prolong the litigation between the parties. In order to cut short the litigation and to save precious time of the court as also to give quietus to the entire dispute, we direct in exercise of the powers under Section 152 of the CPC that the decree be corrected by giving the correct Khasra No.26R/52 in place of Khasra Number 25R/52. Having decided so, in the aforesaid manner, we are not required to go into the arguments advanced before us and adjudicate as to whether Order 2 Rule 2 CPC would be applicable in the facts and circumstances of the present case and whether or not the subsequent suit was barred."

10. It may be relevant to point out here that in case of Tilak Raj (Supra) also the necessary correction in the decree was ordered qua correction of khasra number, solely based on the corrected revenue records de hors the wrong khasra number been mentioned in the plaint. The said order was also passed in terms of Section 152 of CPC, despite a serious objection been raised by the respondents-defendants as regards the availability/non availing of remedy under Order 6 Rule 17 CPC by the decree-holder seeking amendment of plaint.

11. Furthermore, in case of any ambiguity in the plaint regarding TEJWINDER SINGH 2024.07.05 12:54 I attest to the accuracy and integrity of this document CR-3397-2017 -6- the description or identity of the suit property, even though, on account of carelessness of the parties, it can be cured by the Court in exercise of powers under Section 152 of Code of Civil Procedure, 1908 being an inadvertent error while relying upon the up-to-date records regarding ownership including the revenue records-jamabandi. Reference in this regards can be made to a decision passed by the Hon'ble Apex Court in "Pratibha Singh and Anr. Vs. Shanti Devi Prasad and Anr." reported as 2003(1) R.C.R. (Civil)316. Relevant paragraph No.16 therefrom is reproduced hereunder:-

"16. When the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 of the Civil Procedure Code is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47 of the Civil Procedure Code depending on the facts and circumstances of each case - which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected under Section 152 of the Civil Procedure Code by the Court which passed the decree by supplying the omission. Alternatively, the exact description of decretal property may be ascertained by the Executing Court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent Court should not, as far as particable, be allowed to be defeated on account of an accidental slip or omission. In the facts and circumstances of the present case we think it would be more appropriate to invoke Section 47 of the Civil Procedure Code."

12. In view of the aforesaid discussion well as purely in the interest of justice and also to avoid the parties to indulge themselves in another long drawn uncalled for litigation, the prayer made on behalf of the petitioner seeking amendment/correction of decree dated 07.12.2009 to TEJWINDER SINGH 2024.07.05 12:54 I attest to the accuracy and integrity of this document CR-3397-2017 -7- the extent of incorporating khasra No.53//25/2 (7-8) instead of 53//2 (7-8) is hereby allowed and the impugned order dated 13.01.2017 passed by the Executing Court is modified in the said manner.

13. Resultantly, the present petition is allowed.

            01.07.2024                                        (HARKESH MANUJA)
            Tejwinder                                              JUDGE
                                    Whether speaking/reasoned   Yes/No
                                       Whether Reportable       Yes/No




TEJWINDER SINGH
2024.07.05 12:54
I attest to the accuracy and
integrity of this document