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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   1058       OF 2009 (Arising out of S.L.P (C) No. 15471/2007)

TILAK RAJ APPELLANT

Versus

BAIKUNTHI DEVI (D) BY LRS.               RESPONDENTS      

WITH

CIVIL APPEAL NO.   1059       OF 2009 (Arising out of S.L.P (C) No. 19445/2007)

J U D G M E N T

Dr. Mukundakam Sharma, J.

1. Leave granted.

2. Being aggrieved by the  Judgments  and Orders  passed by the High

Court of Punjab & Haryana at Chandigarh in Review Application No. 69-

C/2006 dated 28.2.2007 and RSA No. 2315/83 dated 18.8.2006, the present

appeals  were  filed  by  the  appellant.   Since  both  these  appeals  involve

similar  questions  of  law and  facts,  we propose  to  dispose  of  both  these

appeals by this common judgment and order.

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3. The relevant facts for disposal of the controversy are as under:

One Thakru, the common ancestor of the parties, had wife Smt. Radhi

and two sons, namely, Mange Ram and Datta Ram.  Datta Ram was married

to Smt. Baikunthi  Devi,  the respondent  No. 1 (since deceased).    Mange

Ram was the father of Tilak Raj – the appellant in both the appeals.  The

property in suit was owned by and was in the possession of Datta Ram, who

died on 23.02.1968, leaving his wife Smt. Baikunthi Devi and his mother

Smt. Radhi as natural and legal heirs.  Smt. Radhi died on 13.09.1968 and

before her death, she executed a registered Will dated 30.04.1968 in favour

of her grandson – Tilak Raj, the appellant herein.  However, the land left by

Datta Ram was mutated in favour of Smt. Baikunthi on the basis of Will

dated  16.01.1968.  In  order  to  establish  his  claim qua  half  share  of  the

property bequeathed by Will in his favour by his grandmother Smt. Radhi,

the appellant herein filed a civil suit no. 306 of 1969 against Smt. Baikunthi

Devi for a decree for possession of land measuring 7 K 12 ½ Marlas on the

ground that the land measuring 15K 5 Marlas situated in Village Maujowal

was owned and possessed by Datta Ram and he died intestate on 23.2.1968

leaving  behind  Smt.  Baikunthi  Devi  –  his  widow  and  Smt.  Radhi  his

mother.  In that civil suit, Smt. Baikunthi set up a Will purporting to have

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been executed by her husband in her favour on 16.01.1968.  The plea of the

appellant  based  on  registered  Will  dated  30.04.1968  executed  by  his

grandmother  –  Smt.  Radhi  was  upheld  and  the  suit  was  decreed  in  his

favour vide judgment and decree dated 05.02.1976.  The plea raised by Smt.

Baikunthi on the basis of the Will dated 16.01.1968 did not find favour and

was rejected.

4. A petition  for  execution  of  the  decree  was  filed  by the  appellant.

During its execution it was found that Khasra No. 25R/52 has been wrongly

mentioned in the decree whereas the correct Khasra No. was 26R/52.   Due

to such a mistake, the decree could not be executed and possession of the

decreetal land could not be delivered to the appellant.   

5. Besides certain other land owned by Datta Ram was acquired by the

Fertilizer Corporation of India (for short “FCI”) during his life time.  After

his death, a part of that land was re-conveyed in view of the fact that the

FCI found that the said acquired land was surplus.   

6. The appellant filed Civil Suit No. 149 of 1979 for a declaration that

he is owner in possession as co-sharer of the two parcels of land, i.e. the

land of Datta Ram which was returned by the FCI to Smt. Baikunthi Devi

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and the land which was wrongly described in suit no. 306/1969.  The Sub

Judge, 1st Class, Anandpur Sahib by his judgment and order dated 31.8.1982

allowed the suit of the appellant by holding that he was entitled for decree

for possession of the land which had been wrongly described as Khasra No.

25R/52 measuring 5 K 8 Marlas as mentioned in para A of the plaint, in

which  he  has  been  held  to  have  ½ share  as  co-sharer  in  the entire  land

against the defendants.  By the said judgment and order, possession of land

measuring 13 Kanals 10 Marlas was also decreed in favour of appellant as

mentioned in para B of the plaint in which the appellant has been held to

have  ½  share  as  co-sharers  in  the  land  comprised  of  Khewat  No.  129

Khatoni  No.  181.   Suit  of  the  plaintiff  was  further  decreed  against  the

defendants  through a decree for declaration  that  the plaintiff  is  owner in

possession  as  co-sharer  of  land  measuring  9 Kanals  17 Marlas  in  which

plaintiff has ½ share as co-sharer in the entire land as fully detailed in Part

C of the plaint.

7. Smt. Baikunthi Devi challenged the order dt. 31.8.1982 of Sub Judge,

1st Class, Anandpur Sahib before the Court of Additional District Judge by

filing a Civil Appeal.  The said appeal was allowed by order dated 7.6.1983

and the  Judgment  and Decree  dated  31.8.1982  passed  by Sub  Judge,  1st

Class, Anandpur Sahib was set aside.  The appellate court was of the view

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that property bearing Khasra No. 26R/52 was not mentioned in the earlier

suit  and the  remedy available  to  the respondent-  appellant  herein  was to

move an appropriate application under section 152 of the  Civil Procedure

Code  (for  short  ‘CPC’).   Regarding  other  portion  of  the  property,  the

appellate court was of the view that the same was barred under Order 2 Rule

2 CPC, as claim regarding the said property not having been made in the

earlier suit, the appellant was barred from claiming the same in the second

suit.  

8. Aggrieved  thereby  the  appellant  filed  RSA in  the  High  Court  of

Punjab & Haryana.  During the pendency of RSA Smt. Baikunthi Devi died

and her legal heirs filed an application for substitution in RSA which was

allowed.  Appeal was thereafter taken up for hearing.  After completion of

hearing, the High Court by Judgment and Order dated 18.8.2006 dismissed

the appeal  filed  by the appellant.   Thereupon,  the appellant  filed review

petition before the High Court but the same was also dismissed by the High

Court.  Hence these appeals by special leave.

9. Mr.  Khanna,  learned  senior  counsel  appearing  for  the  appellant

argued that appellant  although had remedy as provided for under Section

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152 and Order 6 Rule 17 CPC but not resorting to the same and filing of

fresh suit  for rectification of error  could not have been said to be illegal

either.  He also submitted that Order 2 Rule 2 of CPC is not a bar for the

claim made by the appellant in the facts and circumstances of the present

case.  To justify his submission that even if cause of action is the same then

also bar of Order 2 Rule 2 CPC would not come into play, he drew our

attention  to  the  decisions  of  this  Court  in  Deva Ram v.  Ishwar  Chand,

(1995) 6 SCC 733 and in Kewal Singh v. Lajwanti, (1980) 1 SCC 290.

10. He also pressed that as per Section 34 of the Punjab Land Revenue

Act (hereinafter referred to as ‘the Act’) mutation is necessary upon transfer

of land.  Section 34 of the Act reads as under:

34.  Making of that part of the annual record which relates to landowners, assignees of revenue and occupancy tenants. -  (1)   Any  person  acquiring,  by  inheritance,  purchase, mortgage,  gift  or  otherwise,  any  right  in  an  estate  is  a landowner, assignee of land revenue or tenant having a right of occupancy,  shall  report  his  acquisition  of  the  right  to  the patwari of the estate.

(2) xxxxxxxxxxxxxxxxxx

(3)  The patwari shall enter in his register of mutations every report made to him under sub-section (1) or sub-section (2) and shall  also make an entry therein respecting the acquisition of any such right as aforesaid which he has reason to believe to have taken place, and of which a report should have been made

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to him under one or other of the sub-sections and has not been so made.

(4) & (5) xxxxxxxxxxx

11. Mr.  Khanna  also  submitted  that  the  respondents  have  failed  to

produce  any  conveyance  deed  indicating  any  purchase  of  the  land  in

question in their favour.  Since no such conveyance deed could be produced

it cannot be said that the provisions Section 34 of the Act became applicable

to the facts of the present case and therefore no exclusive title could have

passed to the respondents which would deprive the appellant from claiming

his half share in the suit property.

12. Mr. M.L. Verma learned senior counsel appearing for the respondents

summarized his submissions by submitting that legal remedies which were

available to the appellant were not resorted to by him and having not done

so at the appropriate stage, the High Court was justified in coming to the

findings and the present appeals are required to be dismissed.  It was also

submitted by him that since the appellant had failed to move an application

as required under Section 152 of the CPC for rectification of error regarding

Khasra Number and having not filed any application under Order 6 Rule 17

CPC for   amendment of pleadings, which options were although available

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and the same having not been exercised by the appellant, therefore, these

appeals are liable to be dismissed.  He also submitted that the respondent

had re-purchased the said property on 28.5.1969 by paying an amount of

Rs. 4047.06 to the FCI and got possession of the land from the said FCI and

therefore  the  said  action  amounted  to  re-purchase  of  the  land  by  the

respondent and therefore the respondent could be treated as owner of the

entire land.  

13. We have perused the submissions made by the counsel appearing for

both the parties and scrutinized the whole record.  On appreciation of the

records, we are of the opinion that the Patwari had issued a wrong certified

copy of Jamabandi incorporating therein Khasra No. 25R/52 against Khewat

No.  50  Khatoni  No.  60  of  jamabandi  for  the  year  1966-67  of  village

Mojowal.  In fact there was no Khasra No. 25R/52 whereas it was actually

26R/52.  On the basis of and on account of such wrong supply of materials

in  the  certified  copy  of  Jamabandi,  the  appellant  had  sued  by  wrongly

mentioning identity of land as Khasra No. 25R/52.  There was no dispute

that the parties in the earlier suit were agitating regarding the Estate of Datta

Ram.  In that view of the matter the appellant was not at fault at all for suing

the land as mentioned in the para A of the plaint filed in suit no. 149 of

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1979.   Actually,  this  was  a  mistake  on  the  part  of  the  Patwari  or  some

Revenue Officer, who had issued the aforesaid Khasra Girdawari.  It was

nowhere disputed that Khasra No. 26R/52 was owned by Datta Ram and

there was no Khasra Number described as 25R/52.  Moreover, no rebuttal

on behalf of the respondent was made in the written submissions in Civil

Suit No. 306 of 1969 or otherwise that it was not Khasra No. 25R/52.    

14. The aforesaid mistake was of clerical nature which could have been

corrected by applying the provisions of Section 152 of the CPC.  Counsel

appearing for the respondents also during his submissions fairly accepted

the aforesaid position.  The remedy that was available to the appellant was

to  file  an  application  seeking  for  amendment  of  the  decree  by  way  of

correcting  the  clerical  mistake in  respect  of  Khasra  Number.    Since the

mistake was clerical in nature and the appellant being not responsible for

the  said  clerical  mistake  which  had  occurred  due  to  wrong  recording  of

Khasra Number in  Khasra Girdawari, we find no reason as to why such a

genuine  and  bona  fide  mistake  cannot  be  allowed  to  be  corrected  by

exercising the powers under Section 152 of the CPC.  In K. Rajamouli vs.

A.V.K.N. Swamy, (2001) 5 SCC 37, this Court held as follows:-

“Section 152 provides that a clerical or arithmetical mistake in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the

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Court either of its own motion or on the application of any of the parties”.    

15.   Since the court exists to dispense justice, any mistake which is found to

be clerical in nature should be allowed to be rectified by exercising inherent

power vested in the court for sub-serving the cause of justice.  The principle

behind the provision is that no party should suffer due to bona fide mistake.

Whatever is intended by the court while passing the order or decree must be

properly  reflected  therein  otherwise  it  would  only  be  destructive  of  the

principle  of  advancing  the  cause  of  justice.   In  such  matters,  the  courts

should not bind itself by the shackles of technicalities.   

16. In S. Satnam Singh and Ors. vs. Surender Kaur and Anr., reported

in 2008(15) SCLAE 626 Court held as follows:-

“21.  The court  may not  have  a suo motu power  to  amend a decree  but  the  same  would  not  mean  that  the  court  cannot rectify a mistake.  If a property was subject matter of pleadings and the court  did  not  frame an issue which it  ought to  have done, it can, at a later stage, when pointed out, may amend the decree. 22.  The power of amendment, in a case of this nature, as notice hereinbefore, would not only be dependent upon the power of the  court  but  also  the  principle  that  a  court  shall  always  be ready and willing to rectify the mistake it has committed.”

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17. 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.   

18. Having decided in the aforesaid manner in respect of one part of the

property we now proceed to consider the other limb of arguments  of the

counsel appearing for the parties pertaining to the land belonging to Datta

Ram, which was acquired by the FCI and a part of which was subsequently

released from acquisition as surplus land.  The said land is measuring about

13  Kanals  and  10  Marlas.   The  contentions  of  the  counsel  for  the

respondents  is  that  respondent  had  purchased  the  said  land  by  making

payment  of  Rs.  4047.06,  which  was  required  to  be  paid  to  the  FCI  for

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releasing the land from their possession, pursuant to which possession of the

land was delivered to her.  

19. It is clear from the perusal of the record that Smt. Radhi, mother of

the Datta Ram (since deceased) had executed a valid registered Will dated

30.4.1968  in  favour  of  the  appellant  and  as  such  the  appellant  had

succeeded to the Estate of Smt. Radhi.  The land mentioned in Para B in the

heading of the plaint in suit no. 149/1979 was admittedly acquired in the life

time of Datta Ram for the construction of FCI, Naya Nangal.  Later on this

land was found to be surplus and not utilized for the FCI under the general

scheme and consequently the land was to be returned to the original owner

from whom it was acquired.  Accordingly, this land was reverted back to

Datta Ram and a sum of Rs. 4047.06 was paid to the FCI. As a matter of

fact, this land was not a purchase against purchase money but in fact, it was

refund of the amount of FCI from whose account, this amount was received

by Datta Ram deceased.  Smt. Baikunthi Devi never purchased it in her own

right.   In  fact  Datta  Ram  was  the  real  person  to  whom  the  benefit  of

reversion of land was to go.  The respondent was only one of the heirs of

Datta Ram.  Even if Smt. Baikunthi Devi had repaid the amount the same

was done and must be held to have been done as a representative of Datta

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Ram deceased.  On reversion of the land acquired by the FCI, the ownership

of the reverted land has to be shared by both the co-sharers, the appellant

getting half of the land.  

20. It has been clearly established that it is a retransfer of the land and the

words  written in  the mutation are “Bad Wapsi”  meaning clearly that  the

acquired land has been given back and amounts to retransfer.  The price of

the land Rs. 4047.06 was charged by the FCI from Baikunthi Devi, which is

a  proportionate  prices  of  the  compensation  assessed  regarding  the

acquisition of land.   

21. The respondent did not acquire full ownership right in the land re-

conveyed  by the  FCI  by  any  of  the  manner  and  mode  as  mentioned  in

Section 34 of  the Act.    Therefore,  there could not  have been a case of

granting  mutation  in  her  favour  for  the  entire  land.   The  claim  of  the

respondent regarding re-purchase of the land by her is devoid of any cogent

and substantial  documentary evidence,  and therefore,  the  aforesaid  claim

could not have been accepted.   

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22. We consequently hold that the appellant will also be entitled to half

share  of  the  land  which  was  re-conveyed  by  the  FCI.   But  since  the

respondent has made payment of the entire amount which was charged by

the  FCI  for  reconveyencing  the  land,  it  will  be  the  obligation  of  the

appellant to pay half of the said amount to the respondent.  We, therefore,

hold that half of the land which was released and reconveyed after finding

the same to be in surplus  vest  on the appellant  and a declaration to  that

effect is made under this order.  We also hold that the respondent shall be

entitled to receive half of the amount paid to the FCI i.e. Rs. 2023.53 from

the appellant.   The appellant is directed to pay the above said amount to the

respondent  within  three  months  from the  date  of  this  Order  along  with

simple interest @ 9% per annum to be calculated for the period from the

date of payment of the said amount by the respondent to the FCI till the date

of payment of the amount by the appellant.   

23. We, accordingly  in terms of the aforesaid findings and conclusions,

hold and allow:

a) the prayer of the appellant  for rectification of the mistake under

Section 152 of the CPC for correction in the name of Khasra No.

26R/52 in place of Khasra was 25R/52; and also declare that  

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b)  half of the land which was released and reconveyed after finding

the same to be in surplus vest on the appellant and a declaration to

that  effect  is  made  under  this  order.   We  also  hold  that  the

respondent shall be entitled to receive half of the amount paid to

the FCI  i.e.  Rs.  2023.53 from the appellant.    The appellant  is

directed to  pay the  above said amount  to  the respondent  within

three months from the date of this Order along with simple interest

@ 9% per annum to be calculated for the period from the date of

payment of the said amount by the respondent to the FCI till the

date of payment of the amount by the appellant.   

24. In terms of  the  observations  made above,  appeals  are  allowed  but

without any cost.

………………………………………J.

                                                            [ S.B. SINHA ]

………………………………………J.

[ DR. MUKUNDAKAM SHARMA ]

New Delhi February 16, 2009

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