M.K. Soumini v. M.K. Sreedharan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 10TH DAY OF JANUARY 2017/20TH POUSHA, 1938** **CRP.No. 457 of 2016 ()** **----------------------I.A.No.606 of 2016 in I.A.No.1277 of 1985 in O.S.No.19 OF 1983 OF THE SUBORDINATE COURT, VADAKARA** ## **REVISION PETITIONER(S)/PETITIONER IN IA /PLAINTIFF IN OS:** **--------------------------------------------------------** **M.K.SOUMINI W/O LATE RAGHAVAN A.V, SWASTHAM, RESIDING AT RAGESH VILLA, VADAKARA AMSOM, DESOM, VADAKARA TALUK, POST VATAKARA-673104** **BY ADVS.SRI.B.KRISHNAN SRI.R.PARTHASARATHY SMT.SEEMA** **RESPONDENT(S)/RESPONDENTS 2 TO 7 IN IA /DEFENDANTS:** **---------------------------------------------------** ## **1. M.K.SREEDHARAN** **S/O KUNHIRAMAN, SOMAVILASAM, POST VADAKARA, VADAKARA AMSOM, DESOM, P.O.VADAKARA, PIN-673101** **2. M.K.SUJATHA** **W/O P.ACHUTHAN, SWASTHAM, PRABHAPATHITHYA PLACE, POST CULCUTTA, PIN-700 026** **3. M.K.RAJALAKSHMAI** - **W/O K.SREENIVASAN, SWASTHAM, KAVUNGAL HOUSE, PANNIYANKARA AMSOM, DESOM, POST PANNIYANKARA, -673001** **4. C.K.CHANDRI W/O LATE M.K.SOMAN, SOMAVILASAM, POST VADAKARA, VADAKARA AMSOM, DESOM-673101** **5. SUCHITRA,** - **D/O M.K.SOMAN (MINOR) BY GUARDIAN & MOTHER C.K.CHANDRI, POST VADAKARA KOZHIKODE DISTRICT-673101** **6. SUPRIYA** - **D/O M.K.SOMAN (MINOR) BY GUARDIAN & MOTHER C.K.CHANDRI, POST VADAKARA KOZHIKODE DISTRICT-673101** **R4 BY ADV. SRI.U.P.BALAKRISHNAN R4 BY ADV. SRI.K.R.AVINASH (KUNNATH)** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **CRP.No. 457 of 2016 ()** ## **APPENDIX** ## **PETITIONER(S)'S EXHIBITS:** **----------------------** **ANNEXURE A1: TRUE COPY OF THE PETITION I.A.No.606/2016 IN FDIA 1277/1985 IN O.S.19/1983 ON THE FILE OF SUBORDINATE JUDGE'S COURT, VADAKARA.** **ANNEXURE A2: TRUE COPY OF THE DOCUMENT NO.2482/1939 DATED 18.12.1939.** **ANNEXURE A3: TRUE COPY OF THE DOCUMENT NO.1572/1959 DATED 29.10.1959.** **ANNEXURE A4: TRUE COPY OF THE DECREE IN O.S.19/1983 ON THE FILE OF SUBORDINATE JUDGE'S COURT, VADAKARA DATED 27.6.1985.** **ANNEXURE A5: TRUE COPY OF THE SKETCH SUBMITTED IN O.S.19/1983.** **ANNEXURE A6: TRUE COPY OF THE SHARE LIST SUBMITTED BY PLAINTIFF AND DEFendantS 2 TO 7 IN O.S.19/1983.** **ANNEXURE A7: TRUE COPY OF THE REPORT OF THE AMIN SUBMITTED IN EXECUTION PETITION IN E.P.206/1985 IN O.S.19/1983 DATED 26/9/1985.** **ANNEXURE A8: TRUE COPY OF THE ASSIGNMENT DEED EXECUTED BY THE 4TH RESPONDENT DATED 4.5.1992.** **ANNEXURE A9: TRUE COPY OF THE SKETCH PREPARED BY THE VILLAGE OFFICER, NADAKKUTHAZHA.** **ANNEXURE A10: TRUE COPY OF THE DOCUMENT NO.2135/2002 DATED 16.9.2002.** **ANNEXURE A11: TRUE COPY OF THE ENCUMBRANCE CERTIFICATE ISSUED BY THE SUB REGISTRAR'S OFFICE, VATAKARA.** **ANNEXURE A12: TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, NADAKKUTHAZHA DATED 4.2.2016.** **RESPONDENT'S EXHIBITS: NIL** **----------------------** **TRUE COPY** **PA TO JUDGE** Scl. ## **ANU SIVARAMAN, J.** **-------------------------------------** C.R.P No.457 of 2016 -------------------------------------Dated this the 10[th] day of January, 2017 ## **ORDER** This Civil Revision Petition is filed challenging the orders passed in I.A.No.606 of 2016 in IA 1277 of 1985 in O.S.No.19 of 1983. This I.A. was filed seeking to correct the mistakes in the Razi petition, final decree and connected records. The corrections sought for thereon reads as follows: ## “ _ ÈKÞçAIáK ÕßÕø¢: (1) çÎW ÈOùßW ËÏÜÞAßÏ IA 1277/1985 øÞ¼ß ÙV¼ßÏßÜᢠÄàVºî ÕßÇßÏßÜᢠÉGßµÏßæÜ øIÞ¢ ÈOùí ÕØñáÕßæa ùàØ. ÈOV R96 W 3Q ®KÄí Ä¿Eá ɵø¢ R101Q ®Ká çºVJᢠøIÞ¢ ÈOùí ÕØñáÕßæa ÕßÕøÃJßÈí ÄÞæÝ ¥¢Ö¢ ®K çµÞ{JßW RÈ¿AáÄÞæÝQ ®KᢠçÆÖ¢ ®K çµÞ{JßW RçÎMÏßWQ ®KᢠØVæÕî ÈOV çµÞ{JßW R67W2Q ùàØ çµÞ {JßW R59W3Q ®KᢠÕØñáÕßæa çÉøßæa çµÞ{JßW RÄKßW çÖ×¢ É¿ßEÞæù ÍÞ·¢ ØíÅÜ¢Q ®Kᢠ6 ËàxßKí µß.É çµÞ{JßW R21Q ®KᢠæÄÕ çµÞ{JßW R10Q ®KᢠÕØñáÕßæa çÉøí ®ÝáÄßÏ çµÞ{JßW R63Q ®KÄí Ä¿Eá R83Q ®Ká çºVJᢠÕØñáÕßæa ¥Äßøí C.R.P No.457 of 2016 -2- µßÝAí ÍÞ·¢ RÈßøJᢠÉÞùÏá¢Q ®KÄí Ä¿Eá ɵø¢ R¥¿ßçÏÞ¿ß µáKá ÉùOᢠÉÞùÏᢠÉÞùÏáU ØíÜÕᢠ§çMÞZ çùÞØíQ ®Ká çºVJᢠæÄAí ¥Äßøí R¥¿ßçÏÞ¿ß µáKá ÉùOᢠÉÞùÏá¢Q ®KÄá Ä¿Eá ɵø¢ ÉÞçùÞU ÉùOᢠÄKßW çÖ×Õá¢Q ®Ká çºVJᢠɿßEÞùí ¥Äßøí ""ÉÞçùÞU ÉùOᢠÄKßW çÖ×Õá¢Q ®KÄí Ä¿Eá ɵø¢ ÄKßW çÖ×¢ ØíÅÜ¢Q ®Ká çºVJᢠտAí ¥Äßøí RÄKßW çÖ×¢Q ®KÄí Ä¿Eá ɵø¢ RÈßøJᢠÉÞùÏᢠ§çMÞZ ÕÝßØíÅÜ¢Q ®Ká çºVJᢠÈKÞçAIÄÞÃí. (2) ÄàVºîÕßÇß ²KߺîáUåExhibit A2 ÉïÞÈßW ÕØñáÕßæa µß¿Mí µÞÃßAáK ÆßÖÞØ⺵JßW "N" ®KÄí Ä¿Eá "WEST"å ®Ká çºVJá¢åVILLAGE"BADAGARA" ®KÄí Ä¿Eá ɵø¢ "NADAKKUTHAZHA" ®Ká çºVJá¢å"DESOMNADAKKUTHAZHA ®KÄßÈí ÉáùçÎ "MEPPAYIL"å®Káåµâ¿ß çºVJᢠ"Re-Survey No."96/3". ®KÄí Ä¿Eí ɵø¢ "101" ®Ká çºVJᢠ"59/3C" ®KÄßW "C"åå®KÄí Ä¿Eᢠ(3) Exhibit A1 ç×VÜßØíxßW çÆÖ¢ ®K çµÞ{JßW QÈ¿AáÄÞÝR ®KÄßÈí ÉáùæÎ QçÎMÏßWR ®Ká çºVJᢠùàØ.È¢. çµÞ{JßW "96/3"å®KÄí Ä¿Eá ɵø¢ "101" ®Ká çºVJᢠ"59/3C" ®KÄßW "C"å®KÄí Ä¿EᢠÈKÞçAIÄÞÃí. (4) ÕØñá ²ÝßMߺîÄßÈí ¦ÎcX ÄÏîÞùÞAß çÌÞÇßMߺî È¿JW ÕßÕø µÃAßW çÆÖ¢ RÈ¿AáÄÞÝQ C.R.P No.457 of 2016 -3- ®æKÝáÄßÏ ØíÅÜB{ßW ÎáÝáÕX RçÎMÏßWQ ®Ká µâ¿ß çºVJᢠùàØ. ÈOV R96/3Q ®KÄí Ä¿Eá ɵø¢ "101" ®KᢠR59W3Q ®KᢠçºVJᢠØVæÕî R81W1Q ®KÄßÈí ÉáùæÎ R67W2Q ®Ká çºVJᢠÈKÞçAIÄÞÃí.” 2. It is submitted that the revision petitioner is the plaintiff and the fourth respondent is the fifth defendant in I.A.No.606 of 2016 in I.A.No.1277 of 1985 in O.S.No.19 of 1983. It is submitted by the learned counsel for the revision petitioner that the correction in question was to be made in respect of the shares of the revision petitioner and the fourth respondent herein. It is submitted that in the nature of the correction sought for, it was not necessary to serve notice to all other parties in the partition suit. It is further submitted that the documents which are produced as Annexures A2 to A10 in I.A.No.2943 of 2016 would reveal the fact that the corrections sought for in the I.A. were only in the nature of clerical mistakes, which had occurred while preferring the compromise petition before the court below and which was carried over in the final decree. C.R.P No.457 of 2016 -4- 3. By the order under challenge, the court below recorded that the corrections sought for are of Re-survey number, amsom, desom, description and measurement etc. of item No.2 in the Razi petition and Final Decree; the direction, Village, desom, Re-survey number etc. in Ext.A2 plan and like mistakes in Ext.A1 share list and delivery account. It is noticed that the notice of the application was given to the respondents through their respective counsel and there was no objection to the application. It is further stated that since the details of the property sought to be incorporated or substituted are not available in any of the documents or records produced before the court, on the basis of which the Razi petition was preferred and final decree was passed, the relevant records had been called for from the District Court. However, the court below held that Exts.A2 to A5 plans are the records in which corrections are sought to be made and that the documents relevant for inspection to ascertain whether there occurred any clerical mistakes are not available before the court. Further, it C.R.P No.457 of 2016 -5- is found that it is after a lapse of 31 years of passing the final decree and delivery of possession of the property that this application is filed seeking corrections. Therefore, the corrections sought for with respect to the details of property would effect a drastic change in the description of the property. On these grounds, the application for correction was dismissed. 4. Heard the learned counsel appearing for the revision petitioner, the learned counsel appearing for the fourth respondent as well as the learned Government Pleader. 5. Learned counsel for the revision petitioner submits that the correction sought for in I.A is in respect of the property allotted to the share of the revision petitioner and the fourth respondent. It is stated that Ext.A2 document would show that two items of properties had been conveyed by the said document. The second item of the property was omitted to be included in the compromise petition as well as the final decree. It is further stated that Ext.A9 survey plan as well as C.R.P No.457 of 2016 -6- Ext.A10 document later executed by the fourth respondent and Ext.A12 possession certificate issued by the Village Officer would show that the correct survey number of the property which is included in Group Nos.1 and 3 as the share of the revision petitioner and the fourth respondent is Re-Sy.No.101 and not 96/3 as stated in the compromise petition. Learned counsel also relies on the share list and the plan attached to Annexure A4 decree to show that the property comprised in Sy.No.101 has been alloted to the revision petitioner and the fourth respondent and the other parties have no interest in the same. It is further stated that it is only when the necessity for selling the property arose that the mistakes which had occurred in the decree come to the notice of the revision petitioner. It is therefore contended that in the absence of any objection from any of the parties to the suit, the dismissal of the application for correction on the ground that it would change the identity of the property, is completely unwarranted. C.R.P No.457 of 2016 -7- 6. The learned counsel relies on the decision of this Court in **Chandran v. Amruthavally and others [2016 (5) KHC 444]** to contend that where it is found that since there is a mistake in the survey number of the property recorded in the final decree in the partition suit, it shall open to the court, in exercise of power under Section 152 of the CPC to correct such mistake. Paragraph 10 of the said judgment which reads as follows: “10. In the instant case, as pointed out earlier, there is no dispute between parties regarding the identity of the property sought to be partitioned. The respondents have no objection to the correction of the survey number of the property in the manner as sought for by the revision petitioner. If the correction is allowed that will not cause prejudice to any of the parties to the litigation. The only apprehension is whether as per the revenue records the property in the particular survey number sought to be incorporated namely Sy.No.644/5, is shown to be in the possession of third parties, in which event, the rights of the said third parties would be affected by the inclusion of the said survey number in the present case. I make it clear that the right of third parties, if any, over the property described in the survey number sought C.R.P No.457 of 2016 -8- to be incorporated, will not be affected by such inclusion. If there is any disputed right, the parties to the present suit will have to approach the appropriate Court or authorities, seeking necessary reliefs.” 7. Learned counsel also relies on the decision of this Court in **Easwari Amma Prsannakumari v. Radhakrishna Pillai and another [2015 (5) KHC 922]** to contend that even where the mistakes in the decree occurred on account of the mistaken description of the suit property in the plaint, the power under Section 152 of the Code would be available to the court to correct the decree. 8. In the instance case, the mistake has occurred admittedly in the compromise petition preferred by the parties before the court which led to passing of final decree. It is evident from the perusal of the documents produced before this Court that the correction of the mistakes in the final decree would not result in any change in the identity of the property. It is also to be noted that there is no objection to the application from any of the parties to the suit before the C.R.P No.457 of 2016 -9- court below. 9. In the above view of the matter, the refusal on the part of the trial court to entertain the application for correction on the ground that it would effect a drastic change in the description of the property, cannot be sustained. The corrections to the decree would cover the properties alloted to the share of the revision petitioner and the fourth respondent alone. Notice to respondents 1 to 3, 5 and 6 in this revision petition is therefore dispensed with. Accordingly, this Civil Revision Petition is allowed. The order impugned is set aside. I.A.No.606 of 2016 in I.A.No.1277 of 1985 in O.S.No.19 of 1983 is allowed, subject to the rights of any of the other parties to the partition suit to approach the court below if their rights are affected by the order correcting the decree. Sd/- **ANU SIVARAMAN JUDGE** scl/11.1.2017 C.R.P No.457 of 2016 -10- Scl/11.01.2017