TITLE SUIT No. 3 30 of 2007 · Gauhati High Court

Heard Mr. A.R. Sikdar, learned counsel for the petitioners. Also heard Mr. B. Banerjee, learned counsel for the opposite party. As agreed to by the learned counsel for the parties, this revision petition is taken up for disp osal at the admission stage. The opposite party filed Title Suit No. 330 of 2007 in the Cour 3. t of the learned Munsiff No.1, Barpeta, praying for a decree of declaration for right, title and interest in respect of Schedule ’B’ of the plaint and for khas possession of Schedule ’C’ of the plaint, which is part of Schedule ’B’, a dec ree to issue precept to the Revenue Authority for partition of ’B’ Schedule land in favour of the plaintiff by appointing Amin Commission, to issue precept to t he Revenue Authority for separate patta in respect of ’B’ Schedule land and for a permanent injunction not to prevent the plaintiff from entering into Schedule ’C’ land, etc.

The petitioners had submitted written statement alongwith the c ounter claim praying for, amongst others, dismissal of the suit of the plaintiff with costs, declaration that plaintiff has no right, title, interest and posse ssion of ’B’ Schedule land of the plaint, declaration that plaintiff’s prayer fo r partition in respect of ’B’ Schedule land is illegal, declaration that the gr ant of mutation in favour of the plaintiff on 11-10-1991 and 23-03-2005 is illeg al, to send precept to the Revenue Authority to correct the record of the land, declaration of the defendants’ right, title and interest and possession over t he land prescribed in the Schedule to the counter claim measuring 1 Bigha 1 Kath a and 16 ‰ lechas of land. 5. (cid:28) 1. Whether there is cause of action for the suit as well as for the counter c laim of the defendants ? 2. ’ land which is specifically described in the plaint? 3. he Schedule ’C’ land? 4.

Bigha 1 Katha 16 ‰ Lachas of land covered by Dag No. 66 under patta No.99? 6. and void and inoperative in law? 7. Whether the plaintiff is entitled for the relief as prayed for ? Whether the defendants have right, title interest and possession over 1 Whether the mutation of the plaintiff dated 11-10-1991 and 23-03-2005 is Whether the sale deed Nos. 1662/84 1335/91 and 316/03 are illegal, null Whether the plaintiff has right, title and interest over the Schedule ’B Whether the plaintiff is entitled for the decree of khas possession of t The learned Trial Court framed the following issues : illegal and void in law? To what other relief or reliefs the parties are entitled for ? (cid:29). Whether the defendants are entitled for the decree as prayed for in thei

r counter claim? 9. 6. The plaintiff examined six witnesses and some documents were als o exhibited. The defendants had adduced evidence of four witnesses and also exhi bited some documents in support of their case. 7. The learned Trial Court, on consideration of the materials on re cord, found that the plaintiff has right, title and interest over the Schedule ’ B’ land. The learned Trial Court decided issue No.5 against the defendants holdi ng that the defendants have no right, title, interest and possession over 1 Big ha 1 Katha 16 ‰ Lechas of land covered by Dag No. 60 under Patta No. 99, which was the land described in the Schedule to the written statement-cum- counter cla im of the defendants. With regard to issue No. 3, the learned Trial Court opined as follows : (cid:28) So, the plaintiff is not entitled for the khas possession of the Schedule ’C ’ land, but if there is any encroachment of the plaintiff’s land by the defenda nts that has to be given to the plaintiff after proper demarcation at the time o f partition, as the plaintiff has sought for relief of partition of her purchas ed land herein this case.

On 26-08-2010, the case record was put up with a report on the precept that had been received. The learned Trial Court directed the learned counsel to go through the report on the precept, fixing 16-09-2010. On 16-09-2010, taking note of the fact that no objection had been raised by the plaintiff side with re gard to the report submitted on the precept, the learned Trial Court directed pr eparation of the final decree, which was prepared, sealed and signed on 16-09-20 10.

Mr. A.R. Sikdar, learned counsel for the petitioners submits that after the final decree was passed, on 21-09-2010, a petition was filed for correctio n of the final decree by the plaintiff/decree holder on the ground that the Reve nue Authority had submitted partition papers before the Court without any remark s as to whether the plaintiff’s land is encroached by the defendants or not and without making any demarcation of the plaintiff’s land and that the same was ove rlooked by the plaintiff and therefore, by that petition, prayed for calling for a fresh report from the Revenue Authority in accordance with the preliminary de cree. The learned counsel strenuously argued on the basis of the averments made in the revision petition that although the petitioners had filed objection to th e petition, without fixing the case for objection hearing, the impugned order ha s been passed in gross violation of the principles of natural justice, whereby t he final decree already prepared was expunged and direction was given to the dec ree-holder to take steps for a fresh precept with the further observation that f resh final decree would be prepared only on receipt of the report of the learned Deputy Commissioner. The learned counsel submitted that on the short ground, n amely, for not affording a hearing to the petitioners, the case should be remand ed back to the learned Court below for a fresh adjudication. The learned counsel further submits that in any view of the matter, the learned Court below could n ot have passed the impugned order in purported exercise of powers under Section 151 CPC.

Mr. B. Banerjee, learned counsel for the opposite party/decree h older, on the other hand, supports the impugned order and submits that apart fro m the plaintiff’s counsel, the learned Court below also overlooked the apparent infirmity in the report of the Revenue Authority, which was not in consonance with the preliminary decree and therefore, no exception can be taken to exercis e of the inherent powers of the Court by the learned Trial Court to correct the manifest error in the final decree. The learned counsel further submits that it is absolutely incorrect that no dates were fixed for objection hearing as conten ded by the learned counsel for the petitioners. The counsel for the petitioners were heard on 25-05-2011 and thereafter only, the order dated 06-06-2011 had bee n passed, he submits.

The petition in question was filed under Section 152 read with S ection 151 CPC. The learned Trial Court rightly concluded that in exercise of po wers under Section 152 CPC, the Court can correct only clerical errors. It has not been argued by the learned counsel for the petitioners that report submitted by the Revenue Authority at the first instance based on which the final decree was prepared, was in sync with the preliminary decree. What is contended is tha t it is not possible to correct the final decree and this is the stand taken in the written objection which was filed on 24-01-2011 against the petition under S ection 151/152 CPC.

On going through the order sheet, it is found that on 19-05-201 1, 25-05-2011 was fixed for hearing. It is also demonstrated by the order dated 25-05-2011 that both the parties were heard on the petition in question and ther efore, submission of Mr. Sikdar that the counsel for the petitioners were not he ard is factually not correct.

Order 20 Rule 18 CPC provides for passing of preliminary decree, if the partition or separation of immovable and movable properties cannot be conveniently made without further inquiry, declaring the right of the several p arties interested in the property and giving further direction as may be require d. Passing of preliminary decree pre-supposes declaring the right of the parties and the purpose of such a preliminary decree is to conduct further inquiry to e ffect partition or separation. In the instant case, plaintiff’s right, title and interest has been declared by the learned Trial Court in respect of Schedule ’B ’ land. It has also been made explicitly clear in the judgement that if there is any encroachment of the plaintiff’s land by the defendants, the same has to be given possession to the plaintiff after proper demarcation at the time of partit ion. The report of partition did not advert to the question as to whether any pa rt of land of Schedule ’B’ is under the possession of the defendants.

There is also a duty cast on the Court at the time of passing a final decree. Obviously, in the instant case, a material aspect having a bearing on the relief granted to the plaintiff was overlooked.

In the facts and circumstances of the case, this Court is of th e considered opinion that the learned Trial Court committed no material irregula rity and also did not exceed its jurisdiction in exercising inherent powers und er Section 151 CPC in passing the order dated 06-06-2011 to effectuate the purpo se for which the preliminary decree was passed.