BY AD v. RINNY STEPHEN CHAMAPARAMPIL

The 3rd defendant in O.S.No.37/2010 of the Munsiff Court, Mavelikkara is the petitioner herein. She is aggrieved by Ext.P10 order, which allowed a correction to the decree in the said suit, by allowing I.A.No.78/2021.

2. Heard the learned counsel for the petitioner and the respondent.

3. Learned counsel for the petitioner submits that the suit O.S.No.37/2010 was compromised and Ext.P1 compromise decree was passed. The compromise agreement by and between the parties forms part of Ext.P1 decree, wherein, compromise O.P.(C).No. 469 of 2022 ..3.. has been entered into with respect to B schedule property. B schedule property as per Ext.P1 decree is comprised in Survey No.86/14,15,12. According to the learned counsel, the compromise could be entered into only for the reason that Survey No.86/14,15,12 does not pertain to the property of the defendants. The property of the defendants is comprised in Re-Survey No.82. However, after ten years from the decree and when a second suit preferred by the petitioner herein in the year 2020 was pending consideration, an application for correction of the plaint, as also, the decree was made vide Exts.P6 & P8, the former, for correction of the plaint and the latter, for correction of the errors in the decree. Ext.P6 application was allowed quite erroneously and Ext.P8 was dismissed. According to the learned counsel, the correction sought for in respect of the survey number, the extent and also the boundaries cannot O.P.(C).No. 469 of 2022 ..4.. be treated as a mistake and the same ought not have been allowed. The matter should have been left to be decided in the pending suit preferred by the petitioner herein, is the submission made.

4. Refuting the above submissions, learned counsel for the respondent would submit that the petitioner and the respondents are relatives. Petitioner is the daughter of respondents' sister. Petitioner's father had 37 cents of land on the southern side of a public road. Petitioner's mother Ramani got married in the year 1970, whereupon 17 cents of land adjoining the road was gifted to her, as also, her husband by petitioner's father in connection with their marriage. Out of the remaining 20 cents on the southern side, 10 cents was gifted to another sister by name Vimala, which forms the extreme southern side of the property. The 10 cents in O.P.(C).No. 469 of 2022 ..5.. between was gifted to the respondent herein, wherein the father was residing. The 10 cents of land, gifted to Vimala, was also purchased by the respondent herein, thus respondent becoming entitled to 20 cents altogether, which is located on the southern side of the 17 cents gifted to the mother of the petitioner herein. The access to the property of the respondent, as also, to the above referred Vimala was through the eastern side of the property gifted to the petitioner's mother, having an extend of 17 cents. When the same was sought to be obstructed, O.S.No37/2010 was filed, seeking declaration of right of easement and also injunction. The said suit was compromised and Ext.P1 decree was passed, the terms of the compromise forming part of the decree. As per the compromise decree, the respondents have been given right over C schedule pathway, having a width of 2 mtrs, which passes through B schedule property. O.P.(C).No. 469 of 2022 ..6.. It is true that B schedule property has been described as one comprised in survey no.86/14,15,12.

5. Learned counsel for the respondent would point out that the title deed refers to the old survey number of 159/2010, which pertains to the property of the petitioner's mother Ramani and 159/11, which pertains to the property of the respondent. A re-survey was effected just before the institution of the suit and the plaintiff had paid tax, vide Ext.R1(b) tax receipt, wherein the re-survey number has been shown as 86/16. It is accordingly, that B schedule was shown in the plaint with the re-survey number 86. However, the revenue authorities have changed the re-survey number from 86 to 82, which the respondent herein did not take notice then. It is only when the new suit came in the year 2020 by the petitioner O.P.(C).No. 469 of 2022 ..7.. herein, that the mistake in survey number, as also, the extent and boundaries were noted. Apart from this mistake, which was carried over from the plaint, two other errors crept in while drawing Ext.A1 decree. The extent of B schedule was shown as that of A schedule and the northern and western boundaries got interchanged. Upon noticing the mistakes, two applications were filed, Exts.P6 & P8, one for correction of the mistake in the plaint and the other for correction of the mistakes while drawing Ext.P1 decree. The application for correction of the plaint was dismissed, holding that the same is not required inasmuch as such mistake occurred in pursuance of an entry in the official record. However, Ext.P8 application was allowed vide Ext.P10 order, correcting the mistakes in the decree, which is sought to be challenged in this Original Petition. O.P.(C).No. 469 of 2022 ..8..

6. Having heard the learned counsel appearing on both sides, this Court finds little merit in the challenge made against Ext.P10 order. Primarily this Court cannot accept the contention of the petitioner that the petitioner had set and subscribed his hands to the compromise agreement only for the reason that it does not pertain to his property. As rightly pointed out by the learned counsel for the respondent, there was no dispute with respect to the identity of the property at any point of time. As a matter of fact, those averments in the plaint, which refers to the description of the property has been specifically admitted by the defendants in the suit, O.S. No.37/2010. Secondly, the respondents could establish a justifiable cause, explaining the mistake in the plaint and consequently, the mistake in the decree. As rightly found in Ext.P10 order, the mistake in the plaint occurred pursuant O.P.(C).No. 469 of 2022 ..9.. to an entry in an official record, that is to say, Ext.R1(b)tax receipt, in respect of which finding, no exception can be taken.

7. Coming to the correction in the decree, the first, of course, is pertaining to survey number, which this Court found to be genuine and justified. In so far as the second mistake with respect to the extent, the extent of plaint B schedule was shown as that of plaint A schedule, which is again a mistake, liable to be corrected. The same is the case with respect to the boundaries wherein the northern and western boundaries got interchanged. These mistakes are not attributable to the respondent herein, but which occurred while drawing the decree.

8. In the circumstances, this Court cannot finds fault with Ext.P10 order, which corrected the O.P.(C).No. 469 of 2022 ..10.. mistakes in the decree. The contention of the petitioner that such corrections ought not to have effected and that the same should have been left for consideration in the instant suit defies the reason and logic. In the circumstances, this original petition fails and the same will stand dismissed. Skk//23.01.2024 Sd/- C. JAYACHANDRAN JUDGE O.P.(C).No. 469 of 2022 ..11.. APPENDIX OF OP(C) NO.469/2022 PETITIONER'S EXHIBITS:- EXHIBIT P1 EXHIBIT P2 EXHIBIT P3 EXHIBIT P4 EXHIBIT P5 EXHIBIT P6 EXHIBIT P7 EXHIBIT P8 EXHIBIT P9 EXHIBIT P10 A TRUE COPY OF THE DECREE DATED 20.07.2010 IN OS 37/1020 PASSED BY THE HON'BLE MUNSIFF COURT, MAVELIKKARA A TRUE COPY OF THE PLAINT IN OS NO.152/2020 FILED BEFORE THE HON'BLE MUNSIFF COURT, MAVELIKKARA A TRUE COPY OF THE COMMON ORDER DATED 04.02.2021 IN OS NO.152/2020 PASSED BY THE HON'BLE MUNSIFF COURT, MAVELIKKARA A TRUYE COPY OF CMA NO.5/2021 FILED BY THE RESPONDENT HEREIN BEFORE THE HON'BLE ADDITIONAL -I DISTRICT COURT, MAVELIKKARA A TRUE COPY OF CMA NO.6/221 FILED BY THE RESPONDENT HEREIN BEFORE THE HON'BLE ADDITIONAL -I DISTRICT COURT, MAVELIKKARA A TRUE COPY OF THE INTERIM APPLICATION DATED 10.02.2021 BEARING IA NO.78?2021 IN OS NO.37?2010 BEFORE THE HON'BLE MUNSIFF COURT, MAVELIKKARA A TRUE COPY OF THE OBJECTION IN IA NO.78/2021 IN OS 37/2020 FILED BY THE PETITIONER BEFORE THE HON'BLE MUNSIFF COURT, MAVELIKKARA A TRUE COPY OF THE INTERIM APPLICATION DATED 10.02.2021 BEARING IA NO.93/2021 IN OS NO.37/2010 BEFORE THE HON'BLE MUNSIFF COURT,MAVELIKKARA A TRUE COPY OF THE OBJECTION IN IA NO.93/2021 IN OS 37/2021 FILED BY THE PETITIONER BEFORE THE HON'BLE MUNSIFF COURT, MAVELIKKARA A TRUE COPY OF THE COMMON ORDER DATED 17.01.2022 IN IA NO.78/2021 AND IA NO.93/2021 IN OS NO.37/2010 PASSED BY THE HON'BLE MUNSIFF COURT, MAVELIKKARA O.P.(C).No. 469 of 2022 ..12.. RESPONDENT'S EXHIBITS:- EXHIBIT R1 (A) EXHIBIT R1 (B) EXHIBIT R1 (C) EXHIBIT R1 (D) EXHIBIT R1 (E) EXHIBIT R1 (F) EXHIBIT R1 (G) EXHIBIT R1 (H) CERTIFIED COPY OF GIFT DEED NO.1614/1970 DATED 21/05/1970 OF SRO, MAVELIKARA A TRUE COPY OF THE LAND TAX RECEIPT DATED 08/02/2010 ISSUED FROM THE VILLAGE OFFICE, THEKKEKARA A TRUE COPY OF LAND TAX RECEIPT DATED 20/12/2019 ISSUED FROM VILLAGE OFFICE, THEKKEKARA A TRUE COPY OF THE PLAINT IN O.S. NO.37/2010 OF THE MUNSIFF'S COURT, MAVELIKARA A TRUE COPY OF THE WRITTEN STATEMENT FILED BY DEFENDANTS NOS.1 TO 4 IN O.S. NO.37/2010 OF MUNSIFF'S COURT, MAVELIKARA A TRUE COPY OF SETTLEMENT DEED NO.1344/2013 DATED 29/05/2013 OF SRO, MAVELIKARA A TRUE COPY OF EXECUTION PETITION IN E.P. NO.24/2020 OF THE MUNSIFF'S COURT, MAVELIKARA A TRUE COPY OF THE TREATMENT CERTIFICATE DATED 26/10/2020 ISSUED FROM REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM