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Amendment of Preliminary Decree Sec.152 C.P.C.& Or.18, rule 2 of C.P.C. – suit for partition to the property of step brother against the deceased real sister and against the legal heirs of his real brother and against purchaser – trial court dismissed the suit as time barred and as the defendant 12 purchaser perfected his title – High court set aside the decree of lower court and allowed the appeal and passed preliminary decree declaring that plaintiff is entitled for 1/4th share and legal heirs of his real brother are entitled to 1/4th share and legal heirs of real sister entitled to 1/2 share – amendment petitions filed High court allowed the same – objection that the defendants never asked for partition and separate possession of their extents – Apex court held that under or.18, rule 2 of C.P.C. – it is the duty of court to allot shares of each and every party share in a partition suit and as such dismissed the appeal = CIVIL APPEAL NOs.2352-2354 OF 2008 SRIHARI (DEAD) THROUGH LR. SMT. CH.NIVEDITHA REDDY .…APPELLANT VERSUS SYED MAQDOOM SHAH & ORS. ……RESPONDENTS = 2014 – Sept. Month – http://judis.nic.in/supremecourt/filename=41922

Amendment of Preliminary Decree Sec.152 C.P.C. & Or.18, rule 2 of  C.P.C. – suit for partition to the property of step brother against the deceased real sister and against the legal heirs of his real brother and against purchaser – trial court dismissed the suit as time barred and as the defendant 12 purchaser perfected his title – High court set aside the decree of lower court and allowed the appeal and passed preliminary decree declaring that plaintiff is entitled for 1/4th share and legal heirs of his real brother are entitled to 1/4th share and legal heirs of real sister entitled to 1/2 share – amendment petitions filed High court allowed the same – objection that the defendants never asked for partition and separate possession of their extents – Apex court held that  under or.18, rule 2 of C.P.C. – it is the duty of court to allot shares of each and every party share in a partition suit and as such dismissed the appeal  = 

whereby  the

      High Court – exercising powers under Section 152 of the

      Code of Civil Procedure,1908 (hereinafter referred as ‘the Code’), has

      allowed the applications, and 

directed  that  the  preliminary  decree

      passed in A.S. No. 734 of 1991,  be  amended  

allotting  and  dividing

      half share of Syed Makdoom Shah (defendant  No.11)  and  

Syed  Hussain

      Shah in the suit schedule property in addition to 1/4th share of legal

      heirs of plaintiff Khadar Nawaz Khan (since dead) and 

1/4th  share  of

      the legal heirs of defendant Feroz Khan (died on 22.1.1978). =

Trial court dismissed the suit – where as High court in appeal decreed the suit

After hearing the parties, the  Appellate  Court  re-appreciated

the evidence and came to the conclusion and observed as under:

“It is  not  disputed  that  the  original  owner  of  the

property is one Qamaruddin Ali  Khan  and  from  him,  Khader

Hussain Khan purchased the same.

The  appellant  late  Feroz

Khan and Shahzadi Bee are the  step  brother  and  sister  of

Khader Hussain Khan.

It  is  also  not  disputed  that  the

properties are matrooka properties.

It is also not  disputed

that Khader Hussain Khan died as a  bachelor  leaving  behind

him Shahzadi Bee, his sister and step  brothers,  Feroz  Khan

and the appellant Khader Nawaz  Khan.

After  the  death  of

Khader Hussain Khan, the only heirs are late Feroz  Khan  and

Khadar Nawaz Khan i.e. the appellant and Shahazadi  Bee.

It

is also not disputed that the suit properties being  matrooka

properties, under Muslim Laws, the property devolves  on  all

the three heirs of Khader Hussain Khan  viz.,  Shahzadi  Bee,

Feroz Khan and Khadar Nawaz Khan.

When once  the  properties

devolved on these three persons, who are  the  successors  of

Khader Hussain Khan, they are entitled to claim from  out  of

the shares in accordance with Muslim Law  and  they  are  co-

owners of the property.

It is not disputed that when  a  co-

heir is found to be in possession of the  properties,  it  is

presumed to be on behalf of the  other  co-owners  and  joint

title and the possession of one co-heir is to  be  considered

in Law as possession of all the  co-heirs.

The  co-heir  in

possession cannot render his possession adverse to the  other

co-heirs not in possession.

Therefore, on the death of Khader

Hussain Khan, late Feroz  Khan,  Khadar  Nawaz  Khan,  Khadar

Nawaz Khan the appellant, Shahzadi Bee, who succeeded as  co-

heirs, are entitled to joint  possession  and  even  assuming

that Feroz Khan  was  in  possession  of  the  property,  his

possession is on behalf of  Shahzadi  Bee  and  Khadar  Nawaz

Khan, who are the co-heirs/co-owners along with him.

At this

stage, it is relevant to refer Ex.A-2 which was relied on  in

the Judgment in CCCA No.142 of 1976 filed by  Krishna  Murthy

against late Feroz Khan and  the  1st  respondent.

In  this

appeal, a reference was made to  the  succession  certificate

granted to late Feroz Khan and Shahzadi  Bee,  the  appellant

i.e. Khadar Nawaz Khan.

The relevant portion has been marked as Ex.A-2 in the present

suit.  It reads: “Letter No. 745 dated  7th  Tir  1356  Fasli

shows that  the  succession  for  three  survey  numbers  was

sanctioned in the name of the plaintiff.

His younger brother

Khadar Nawaz Khan and sister Shahzadi Bee are  shown  as  co-

sharers (Shikami)”.  From a reading of Ex.A-2,  it  is  clear

that the possession obtained under Muslim Law was  recognized

by granting succession certificate in favour of all the three

co-heirs.

The learned Judge, forgetting  the  legal  position  obtained

under the Muslim Law and relying on various  documents,  held

that late Feroz Khan was the exclusive possessor and pattadar

of the suit land.

The documents on which he relied are Ex.B-

7, Pahani Patrika for the year 1970-71, Ex.B-23 Khasra Pahani

for the year 1954-55, Ex.B-24 certified copy of Faisal Patti,

Ex.B-25 certified copy of Pahani Pathrika and Ex.B-26 to B-26

certified copies  of  Pahani  Pathrikas.

On  the  basis  of

various entries made in  the  revenue  records,  the  learned

Judge held that late Feroz Khan was in  exclusive  possession

of the property.

It is true that in all the entries  in  the

revenue   records,   late   Feroz   Khan   and   his    legal

representatives  and  the  respondents  were  shown  as   the

possessors of the land.

However, they are only entries  made

in the revenue  records.   In  other  words,  these  are  the

entries relating to  mutation  proceedings  effected  on  the

death of the original owner and also on the  death  of  Feroz

Khan and after purchase by the defendant no.12”.

 

the  Appellate

Court held that merely for the reason that the plaintiff did not raise

any objection and did  not  participate  in  various  proceedings,  it

cannot be said that he stood  ousted  from  the  co-ownership  in  the

property inherited from Khader  Hussain  Khan.

The  Appellate  Court

further held that in fact plaintiff appears to have  no  knowledge  of

the proceedings in which he was not a party.  It further observed that

the joint possession over the land in suit  of  other  co-sharers  was

also with the plaintiff.

The Appellate Court after holding  that  the

property was jointly  owned  by  the  parties  decreed  the  suit  for

partition vide its judgment and decree dated 25.1.1999.

9.    It appears that three applications  viz.  A.S.M.P.  No.11880  of

2004, A.S.M.P. No. 1098 of 2005 and  A.S.M.P.  No.1099  of  2005  were

moved on behalf of the defendants for declaration of their  shares  in

      the preliminary decree passed in A.S No. 734 of  1991  arisen  out  of

      Suit No.471 of 1987. 

The High Court  by exercising powers contained in

Section 151, and Section 152  read  with  Section  153  of  the  Code,

disposed of these applications vide order  dated  21.4.2005  which  is

challenged before us.

The High Court  by  its  order  dated  21.4.2005

allowed the above mentioned applications and directed that half  share

belonging to Syed  Maqdoom  Shah  and  Syed  Hussain  Shah  (heirs  of

Shahzadi Bee), 1/4th share of Basheer Khatoon,  Quadir  Hussain  Khan,

Rabia Khan, Razia Moiuddin, Dr. Masood Nawaz and Mohammad  Yousuf  Ali

Khan (heirs of Khadar Nawaz Khan), and 1/4th share of  Habib  Khatoon,

Moin Khatoon, Zehra Khatoon, Tehera Khatoon, Sughra  Sameena  Khatoon,

Kaneez  Fatima  Khatoon,   Butool   Khatoon,    Aysha   Khatoon    and

Khaderalikhan (heirs of Feroz Khan) be partitioned.

 

Whether the High Court has acted within the scope of  Section  152  of

      the Code or not, we have to see as  to  what  were  the  pleadings  of

      parties, what was the decree passed, and what was the correction  made

      in it. =

15. The relevant part in paragraph 12 of the plaint of Original  Suit  No.

      471 of 1987 filed by Khader Nawaz Khan for partition, reads as under:

           

              “     Hence it  is  prayed  that,  kindly  the  suit  of  the

              plaintiff be decreed as follows:



                   a)  A  preliminary  decree  be  passed   declaring   the

                      plaintiff is entitled for 1/4th share in the matrooka

                      properties i.e.  land  Survey  Nos.  41,  42  and  43

                      admeasuring  Ac  49-24  guntas  situated  at  Kokapet

                      Village, Rajendranagar Revenue  Mandal,  RR  District

                      and a Commissioner  be  appointed  for  partition  be

                      delivered to the  plaintiff  to  the  extent  of  his

                      share, if due to any legal hitch the court finds that

                      the property is not partition able then the  property

                      be put in auction and sale proceeds be  paid  to  the

                      plaintiff to the extent of his  1/4th  share  in  the

                      interest of justice.

                   b) Cost of the suit to be awarded;

                   c) Any other relief or reliefs which  the  plaintiff  is

                      legally entitled to the same”.

16.    Defendant no. 11 Syed Maqdoom Shah (respondent  No.1  in  these

appeals) at the end of para 12 of his written statement,  has  pleaded

and  prayed as under:

 “Hence it is prayed that the suit of plaintiff may  be  decreed

             along with the share of defendant no.11  as  shown  under  para

             no.6.  Further the amount of Rs.2,082/- spent by the  defendant

             no. 11 during last  28 years as shown above at para no.  7  and

             it may be decreed from the share of  the  plaintiff  and  other

             defendants or otherwise  give  4  acres  of  land  in  lieu  of

             Rs.2,182/- from the share of the plaintiff and other defendants

             in addition to his own share to meet the ends of justice”.

Para 6 of which reference is given in above quoted para as

pleaded by defendant no.11 reads as under:

   “The shares ascertained as given by the  plaintiff  under  para

             (6) are correct”.

17        In para 6 of the plaint, shares are mentioned as under:

 “ 6)   That, the shares of the parties are as follows:

             The defendants No. 10 and 11 are entitled for half share to the

             extent of their mother Shahzadi Bee.

             The plaintiff  is  entitled  for  1/4th  share  in  the  entire

             property.

             The defendant no. 1 to 9 are entitled for 1/4th share only”.

18.      Now we re-produce the last sentence  of  judgment  and  order

passed by the Appellate Court – High Court of Andhra Pradesh in  first

appeal A.S. No. 734 of 1991 whereby suit for partition is decreed –

“The suit is accordingly decreed and  appeal  is  allowed  with

             costs”.

19.    By the impugned order dated 21.4.2005 exercising  powers  under

Section 152 of the Code, the First Appellate Court has now directed as

under:

“Accordingly, for the reasons stated above, these  applications

             are allowed and the decree  in  A.S.  No.  734  of  1991  dated

             25.1.1996 is directed to be amended allotting and dividing half

             share in the suit schedule property to the petitioners 1 and 2,

             one-fourth share to respondents 1 to 6  herein  and  one-fourth

             share to respondents 7 to 15 herein.  There shall be  no  order

             as to costs”.

20.   Had the appellate court, not decreed the suit with discussion of

evidence after rejecting the plea of the defendant  No.12  as  to  his

claim of ownership, and had the defendants 1 to  11  not  pleaded  for

      separation of their shares with admission of share of the plaintiff as

      decreed by the Appellate Court , it could have been said that the High

Court erred in declaring shares of the plaintiff or the defendants  by

resorting to Section 152 of the Code.

But in the present  case  since

      there is  a clear finding of shares of the parties in the judgment and

      order dated 25.1.1996,  as  such  by  clarifying  the  decree  by  the

      impugned order, in our opinion the High Court has committed no mistake

      of law.

In this connection, we would like to re-produce sub-rule  (2)

      of Rule 18 of Order XX of the Code, which reads as under:

“18. Decree in suit  for  partition  of  property  or  separate

             possession of a share therein

Where the Court passes a decree

             for the partition of property or for the separate possession of

             a share therein, then,–

                 xxx      xxx           xxx        xxx

              (2) if and in so far as  such  decree  relates  to  any  other

             immovable property or to movable property, the  Court  may,  if

             the partition or separation cannot be conveniently made without

             further inquiry, pass a preliminary decree declaring the rights

             of the several parties, interested in the property  and  giving

             such further directions as may be required”.

Above quoted sub-rule clearly indicates that in the preliminary decree

      not only the right of the plaintiff but rights and interests of others

      can also be declared.

21.   At the end, we would also like to refer the case of  Shub  Karan

      Bubna alias Shub Karan vs. Sita Saran Bubna and Others  (2009)  9  SCC

      689 wherein it is explained that “partition” is  a  redistribution  or

adjustment  of  pre-existing  rights,   among   co-owners/coparceners,

resulting in a division of land or other properties  jointly  held  by

them into different lots or  portions  and  delivery  thereof  to  the

respective allottees. The effect  of such division is that  the  joint

      ownership is terminated and the respective  shares  vest  in  them  in

      severalty.

22.      This Court has earlier also reiterated in U.P.SRTC vs. Imtiaz

      Hussain (2006) 1 SCC 380 has reiterated  that the basis  of  provision

of Section 152 of the Code is found on the maxim ‘actus curiae neminem

gravabit’ i.e. an act of Court shall prejudice no  man.

As  such  an

unintentional mistake of the Court which may prejudice  the  cause  of

any party must be rectified.

However, this  does  not  mean  that  the

Court is allowed to go into the merits of the case to alter or add  to

the terms of the original decree or to give a finding which  does  not

exist in the body of the judgment sought to be corrected.

23.   For the reasons as discussed above, we  do  not  find  force  in

these appeals which are  liable  to  be  dismissed.  Accordingly,  the

appeals are dismissed.  No order as to costs.

2014 – Sept. Month – http://judis.nic.in/supremecourt/filename=41922
REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.2352-2354 OF 2008

SRIHARI     (DEAD) THROUGH LR.

SMT. CH.NIVEDITHA REDDY                    .…APPELLANT

VERSUS

SYED MAQDOOM SHAH   & ORS.  ……RESPONDENTS

J U D G M E N T

PRAFULLA C.PANT,J.

1.    All  these  three   appeals  are  directed  against  the  common

judgment and order dated 21.4.2005 passed by the High Court of  Andhra

Pradesh in A.S.M.P. No.11880 of  2004, A.S.M.P. No. 1098 of  2005  and

A.S.M.P. No.1099 of 2005 (moved in A.S. No. 734 of 1991)  whereby  the

      High Court                  exercising powers under Section 152 of the

      Code of Civil Procedure,1908 (hereinafter referred as ‘the Code’), has

      allowed the applications, and directed  that  the  preliminary  decree

      passed in A.S. No. 734 of 1991,  be  amended  allotting  and  dividing

      half share of Syed Makdoom Shah (defendant  No.11)  and  Syed  Hussain

      Shah in the suit schedule property in addition to 1/4th share of legal

      heirs of plaintiff Khadar Nawaz Khan (since dead) and 1/4th  share  of

      the legal heirs of defendant Feroz Khan (died on 22.1.1978).

2.    Brief facts of the case are that one  Qamaruddin  Ali  Khan  was

      original owner and pattadar of agricultural land bearing S.Nos. 41  to

      43 situated in Village Kokapet.  The  land  was  purchased  by  Khadar

      Hussain Khan through a registered sale deed,  who  died  in  the  year

      1942.  Khadar Hussain Khan died  issueless  as  an  unmarried  person,

      leaving behind his real sister Shahzadi  Bee  and  two  step  brothers

      namely Feroz Khan and Khadar Nawaz Khan (plaintiff).   Khadar  Hussain

Khan remained in possession  and  enjoyed  the  property  in  suit  as

absolute owner till his death in the year 1942 (year 1352 Fasli).   It

is pleaded by the plaintiff that after death of  Khadar  Hussain  Khan

the property was succeeded by his real sister Shahzadi  Bee,  and  two

step brothers namely Feroz Khan (died on 22.1.1978)  and Khadar  Nawaz

Khan (plaintiff).  On the death of Feroz Khan in the  year  1978,  his

      share is inherited by his widow Habib  Khatoon  (Defendant  No.1)  and

      children Moin  Khatoon  (Defendant  No.2),  Zehra  Khatoon  (Defendant

      No.3),  Tehera  Khatoon  (Defendant  No.4),  Sughra  Sameena   Khatoon

      (Defendant No.5), Kaneez  Fatima  Khatoon  (Defendant  No.6),   Butool

      Khatoon  (Defendant  No.7),   Aysha  Khatoon  (Defendant   No.8)   and

      Khaderalikhan (Defendant No.9).  A suit  (O.S.No.  471  of  1987)  was

      instituted by plaintiff  Khadar Nawaz Khan for partition of his  1/4th

      share from plot S. Nos. 41 to 43 measuring area Ac.49.24 gts  situated

      in aforesaid village Kokapet.   It is further pleaded by the plaintiff

      that after death of Feroz Khan, plaintiff and defendant nos. 1  to  11

      are in joint possession of the property.  It is alleged  by  him  that

      defendant no. 12 (Srihari) had no concern with the  property  in  suit

      but he is trying to claim right over the property on the basis of some

      document said  to  have  been  executed  by  one  of  the  co-sharers.

      Therefore the plaintiff  felt that he is unable to enjoy his property,

      in joint possession with the original co-sharers as such he filed suit

      for  partition of his 1/4th share.

3.    Defendant Nos. 1 to 9 and defendant No. 11 in substance admitted

the case of the plaintiff.(Defendant  No.10  during  the  pendency  of

proceeding has died and his heirs are on record.)   Defendant  No.  11

filed his written statement and defendant Nos.1 to 9 adopted the same.

It is admitted to defendant Nos.1 to 9  and  defendant  no.  11  that

after the death of Khadar Hussain Khan, the property in suit  devolved

and was inherited by  his  real  sister  Shahzadi  Bee  and  two  step

brothers namely Feroz Khan and Khadar Nawaz Khan.   However,  mutation

      was done in the name of Feroz Khan being  elder  male  member  in  the

      family, and names of Shahzadi Bee and Khadar  Nawaz  Khan  were  shown

      ‘shikmi’.  It is further pleaded by the aforesaid defendants  that  on

the death of Feroz Khan on 22.1.1978, defendant  Nos.  1  to  9  (i.e.

widow and children of the deceased) inherited  his  share.   Defendant

No.11  is the son of Shahzadi  Bee  (real  sister  of  Khadar  Hussain

Khan).  It is also admitted by the aforesaid defendants that defendant

No.12 Srihari had no concern  with  the  property  in  suit.    It  is

further pleaded by aforesaid defendants (Nos.1 to 11) that the land in

question  is  to  be  partitioned  between  the  plaintiffs  and   the

defendants.

4.    Defendant No.12 Srihari, filed his  separate  written  statement

and contested the suit.  Denying the allegations made in  the  plaint,

he pleaded that the suit property is  not  joint  family  property  of

plaintiff and the defendant Nos. 1 to 11. He further pleaded that  the

plaintiff has filed the suit in collusion with defendant Nos.1 to  11.

However, defendant no.12 admitted that the property in suit originally

      belonged to Qamaruddin Ali Khan which was purchased by Khadar  Hussain

      Khan through registered sale deed, and for  valid  consideration.   He

(defendant No.12) pleaded in his written statement that on  the  death

      of Khadar Hussain Khan, his step brother Feroz Khan (husband of  Habib

      Khatoon defendant No.1 and father of defendant nos. 2 to 9)  inherited

      the property by virtue of Succession Certificate No. 812 of 1357 Fasli

      issued by Director of Settlements.  It is pleaded by  defendant  no.12

that Feroz Khan perfected his title over the land  in  suit  being  in

exclusive possession as an absolute owner in the year 1965-66.  It  is

pointed out that there had been some litigation under Section  145  of

Code of Criminal Procedure between Firoz Khan and one  Krishna  Murthy

but the same was closed. It is also pleaded by  defendant  no.12  that

      Feroz Khan thereafter instituted a suit (O.S. No. 31 of 1966)  in  the

      Court of IIIrd Additional Judge, City Civil Court,  Hyderabad  against

      Krishna Murthy for injunction which was renumbered as O.S.No.  512  of

      1973  in  the  Court  of  Vth  Additional  Judge,  City  Civil  Court,

      Hyderabad.  In the said suit Feroz Khan (husband of defendant No.1 and

father of defendant nos. 2 to 9)  entered  into  settlement,  and  the

entire land of S.Nos. 42 and 43 and portion of S.41  vested  with  the

defendant no.12.  It is further pleaded  that  in  pursuance  of  said

settlement, defendant no.12 was impleaded  as  second  plaintiff  with

Feroz Khan (plaintiff no.1 of Suit No. 512 of 1973).   Finally,  Feroz

Khan who was in need of money offered to sell land measuring  Ac.18.25

gts of S.No.43 and executed agreement of sale on 23.3.1973.  Said suit

No. 512 of 1973 was disposed of by IVth Additional Judge,  City  Civil

Court, Hyderabad holding that defendant No.12 (who was plaintiff  No.2

in suit No. 512 of 1973) and Feroz Khan (plaintiff No.1 of said  suit)

were the owners of the land.  Aggrieved by said  judgment  and  decree

dated 30.9.1976, Krishna Murthy (defendant  of  said  case)  filed  an

appeal No. CCA 142 of 1976 in the High Court.  The  legal  proceedings

referred above were finally decided in favour of the vendor.   In  the

second round of litigation, defendant No.12 filed O.S.No.164  of  1981

before Vth Additional Judge, City Civil Court, Hyderabad for permanent

injunction restraining defendant nos. 1 to 9,  and  present  plaintiff

from selling or otherwise disposing of the land  covered  by  S.43  of

Kokapet Village, except to the defendant no.12 (who was  plaintiff  of

Suit No. 164 of 1981).  Present defendant nos.1 to  9  contested  Suit

No. 164 of 1981  and  the  same  was  decreed  in  favour  of  present

defendant no.12, and the defendants of said suit were restrained  from

transferring the suit land to third  party.   Aggrieved  by  the  said

judgment and decree, present  defendant  nos.  1  to  9  filed  appeal

bearing No. AS 66 of  1984  before  Chief  Judge,  City  Civil  Court,

Hyderabad which was dismissed by the said Court  on  27.11.1984.   The

appeal filed by Krishna Murthy bearing CCCA No. 142 of 1976  was  also

dismissed by the High Court on 11.12.1985. Thereafter,  defendant  No.

      12 filed Original Suit No. 150 of 1986  for  specific  performance  of

      agreement of sale dated 23.3.1973 in  respect  of  land  Ac.18.25  gts

      covered by S.No.43 of Village Kokapet.  In pursuance to the  order  in

      said case possession of the land in question was jointly delivered  to

      defendant no. 12 and defendant nos. 1 to 9  by  the  Bailiff  and  the

      suit was decreed by M.M. West on  2.11.1987  directing  the  defendant

      nos. 1 to  9 to execute  sale  deed  in  favour  of  defendant  No.12.

Present plaintiff Khadar Nawaz Khan never attempted to  get  impleaded

in the aforesaid litigations.  It is alleged by  the  defendant  no.12

that after colluding with defendant no. 1 to defendant no.9, plaintiff

has filed the present suit for partition to deprive defendant no.12 of

his rights.

5.    The trial court on the basis of the  pleadings  of  the  parties

      framed as many as eight  issues,  and  after  recording  evidence  and

      hearing the parties gave the finding that  Feroz  Khan  had  perfected

      title over the land in suit, and the  plaintiff  is  not  entitled  to

      partition. On the issue of limitation, the trial court held  that  the

      suit is barred by limitation.  With the  above  findings  trial  court

      (Additional Subordinate Judge/R.R. District) dismissed the  suit  vide

      judgment and decree dated 16.10.1990.

6.      Aggrieved by the judgment and decree dated 16.10.1990 in  O.S.

No. 471 of 1987, the plaintiff  Khadar  Nawaz  Khan  filed  an  appeal

before the High Court  of  Judicature  at  Andhra  Pradesh  which  was

registered as appeal No. 734 of 1991.

7.    After hearing the parties, the  Appellate  Court  re-appreciated

      the evidence and came to the conclusion and observed as under:

                 “It is  not  disputed  that  the  original  owner  of  the

              property is one Qamaruddin Ali  Khan  and  from  him,  Khader

              Hussain Khan purchased the same.  The  appellant  late  Feroz

              Khan and Shahzadi Bee are the  step  brother  and  sister  of

              Khader Hussain Khan.   It  is  also  not  disputed  that  the

              properties are matrooka properties.  It is also not  disputed

              that Khader Hussain Khan died as a  bachelor  leaving  behind

              him Shahzadi Bee, his sister and step  brothers,  Feroz  Khan

              and the appellant Khader Nawaz  Khan.   After  the  death  of

              Khader Hussain Khan, the only heirs are late Feroz  Khan  and

              Khadar Nawaz Khan i.e. the appellant and Shahazadi  Bee.   It

              is also not disputed that the suit properties being  matrooka

              properties, under Muslim Laws, the property devolves  on  all

              the three heirs of Khader Hussain Khan  viz.,  Shahzadi  Bee,

              Feroz Khan and Khadar Nawaz Khan.  When once  the  properties

              devolved on these three persons, who are  the  successors  of

              Khader Hussain Khan, they are entitled to claim from  out  of

              the shares in accordance with Muslim Law  and  they  are  co-

              owners of the property.  It is not disputed that when  a  co-

              heir is found to be in possession of the  properties,  it  is

              presumed to be on behalf of the  other  co-owners  and  joint

              title and the possession of one co-heir is to  be  considered

              in Law as possession of all the  co-heirs.   The  co-heir  in

              possession cannot render his possession adverse to the  other

              co-heirs not in possession. Therefore, on the death of Khader

              Hussain Khan, late Feroz  Khan,  Khadar  Nawaz  Khan,  Khadar

              Nawaz Khan the appellant, Shahzadi Bee, who succeeded as  co-

              heirs, are entitled to joint  possession  and  even  assuming

              that Feroz Khan  was  in  possession  of  the  property,  his

              possession is on behalf of  Shahzadi  Bee  and  Khadar  Nawaz

              Khan, who are the co-heirs/co-owners along with him.  At this

              stage, it is relevant to refer Ex.A-2 which was relied on  in

              the Judgment in CCCA No.142 of 1976 filed by  Krishna  Murthy

              against late Feroz Khan and  the  1st  respondent.   In  this

              appeal, a reference was made to  the  succession  certificate

              granted to late Feroz Khan and Shahzadi  Bee,  the  appellant

              i.e. Khadar Nawaz Khan.

              The relevant portion has been marked as Ex.A-2 in the present

              suit.  It reads: “Letter No. 745 dated  7th  Tir  1356  Fasli

              shows that  the  succession  for  three  survey  numbers  was

              sanctioned in the name of the plaintiff.  His younger brother

              Khadar Nawaz Khan and sister Shahzadi Bee are  shown  as  co-

              sharers (Shikami)”.  From a reading of Ex.A-2,  it  is  clear

              that the possession obtained under Muslim Law was  recognized

              by granting succession certificate in favour of all the three

              co-heirs.

              The learned Judge, forgetting  the  legal  position  obtained

              under the Muslim Law and relying on various  documents,  held

              that late Feroz Khan was the exclusive possessor and pattadar

              of the suit land.  The documents on which he relied are Ex.B-

              7, Pahani Patrika for the year 1970-71, Ex.B-23 Khasra Pahani

              for the year 1954-55, Ex.B-24 certified copy of Faisal Patti,

              Ex.B-25 certified copy of Pahani Pathrika and Ex.B-26 to B-26

              certified copies  of  Pahani  Pathrikas.   On  the  basis  of

              various entries made in  the  revenue  records,  the  learned

              Judge held that late Feroz Khan was in  exclusive  possession

              of the property.  It is true that in all the entries  in  the

              revenue   records,   late   Feroz   Khan   and   his    legal

              representatives  and  the  respondents  were  shown  as   the

              possessors of the land.  However, they are only entries  made

              in the revenue  records.   In  other  words,  these  are  the

              entries relating to  mutation  proceedings  effected  on  the

              death of the original owner and also on the  death  of  Feroz

              Khan and after purchase by the defendant no.12”.

8.    After further discussing the evidence on record,  the  Appellate

      Court held that merely for the reason that the plaintiff did not raise

      any objection and did  not  participate  in  various  proceedings,  it

      cannot be said that he stood  ousted  from  the  co-ownership  in  the

      property inherited from Khader  Hussain  Khan.   The  Appellate  Court

      further held that in fact plaintiff appears to have  no  knowledge  of

      the proceedings in which he was not a party.  It further observed that

      the joint possession over the land in suit  of  other  co-sharers  was

      also with the plaintiff.  The Appellate Court after holding  that  the

      property was jointly  owned  by  the  parties  decreed  the  suit  for

      partition vide its judgment and decree dated 25.1.1999.

9.    It appears that three applications  viz.  A.S.M.P.  No.11880  of

2004, A.S.M.P. No. 1098 of 2005 and  A.S.M.P.  No.1099  of  2005  were

moved on behalf of the defendants for declaration of their  shares  in

the preliminary decree passed in A.S No. 734 of  1991  arisen  out  of

Suit No.471 of 1987. The High Court  by exercising powers contained in

      Section 151, and Section 152  read  with  Section  153  of  the  Code,

      disposed of these applications vide order  dated  21.4.2005  which  is

      challenged before us. The High Court  by  its  order  dated  21.4.2005

      allowed the above mentioned applications and directed that half  share

      belonging to Syed  Maqdoom  Shah  and  Syed  Hussain  Shah  (heirs  of

      Shahzadi Bee), 1/4th share of Basheer Khatoon,  Quadir  Hussain  Khan,

      Rabia Khan, Razia Moiuddin, Dr. Masood Nawaz and Mohammad  Yousuf  Ali

      Khan (heirs of Khadar Nawaz Khan), and 1/4th share of  Habib  Khatoon,

      Moin Khatoon, Zehra Khatoon, Tehera Khatoon, Sughra  Sameena  Khatoon,

      Kaneez  Fatima  Khatoon,   Butool   Khatoon,    Aysha   Khatoon    and

      Khaderalikhan (heirs of Feroz Khan) be partitioned.

10.   We have heard learned counsel for the parties  and  perused  the

papers on record.

11.   On behalf of defendant No.12 Srihari (appellant before  us),  it

is argued that the impugned order passed by the High Court  is  beyond

the scope of Section 152 (read with Section 151 and  Section  153)  of

the Code.  In support of his argument he relied in the case  of  State

      of Punjab vs. Darshan Singh AIR 2003 SC 4179:  (2004) 1  SCC  328  and

      Bijay Kumar Saraogi  vs.   State  of  Jharkhand   (2005)  7  SCC  748.

Before further discussion, we think  just  and  proper  to  quote  the

relevant provision of law under which impugned order appears  to  have

been passed  by  the  High  Court.   Section  152  of  Code  of  Civil

Procedure, 1908 reads as under:

 “Amendment of judgments, decrees or orders. –   Clerical

           or arithmetical mistakes in  judgments,  decrees  or  orders  or

           errors arising therein from any accidental slip or omission  may

           at any time be corrected by the Court either of its  own  motion

           or on the application of any of the parties.”

12.   From the language of Section 152 of the Code, as  quoted  above,

and also from the interpretation of the section given in the  case  of

State of Punjab vs. Darshan Singh (supra), the section  is  meant  for

correcting the clerical or arithmetical mistakes in judgments, decrees

or orders or errors  arising  therein  from  any  accidental  slip  or

omission.  It is true that the powers under Section 152  of  the  Code

are neither to be equated with the power of review nor can be said  to

be akin to review or even said to clothe  the  Court  under  guise  of

invoking after the result  of  the  judgment  earlier  rendered.   The

corrections contemplated under the section  are  of   correcting  only

accidental omissions or mistakes and not all omissions  and  mistakes.

The omission sought to be corrected which goes to the  merits  of  the

case is beyond the scope of  Section  152.   In  Bijay  Kumar  Saraogi

(supra) also it has been reiterated that Section 152 of the  Code  can

be invoked for the limited purpose of correcting  clerical  errors  or

arithmetical mistakes in judgments or accidental omissions.

13.      Now we have to examine whether by  the  impugned  order,  the

      High Court has only corrected the clerical, arithmetical or accidental

      omission in the decree passed or not.  To appreciate the  same,  first

we think it necessary to mention  as  to  what  the  word  “expression

accidental omission” means.  In Master Construction Co. (P)  Ltd.  Vs.

      State of Orissa and Another AIR 1966 SC 1047, expression –  accidental

slip or omission has been explained as an  error  due  to  a  careless

mistake or omission unintentionally made.  It is further  observed  in

the said case that there is another  qualification,  namely,  such  an

error shall be apparent on the face of the record, that is to say,  it

is not an error which depends for its discovery,  elaborate  arguments

on questions of fact or law.

14. Whether the High Court has acted within the scope of  Section  152  of

the Code or not, we have to see as  to  what  were  the  pleadings  of

parties, what was the decree passed, and what was the correction  made

in it.

15. The relevant part in paragraph 12 of the plaint of Original  Suit  No.

      471 of 1987 filed by Khader Nawaz Khan for partition, reads as under:

              “     Hence it  is  prayed  that,  kindly  the  suit  of  the

              plaintiff be decreed as follows:



                   a)  A  preliminary  decree  be  passed   declaring   the

                      plaintiff is entitled for 1/4th share in the matrooka

                      properties i.e.  land  Survey  Nos.  41,  42  and  43

                      admeasuring  Ac  49-24  guntas  situated  at  Kokapet

                      Village, Rajendranagar Revenue  Mandal,  RR  District

                      and a Commissioner  be  appointed  for  partition  be

                      delivered to the  plaintiff  to  the  extent  of  his

                      share, if due to any legal hitch the court finds that

                      the property is not partition able then the  property

                      be put in auction and sale proceeds be  paid  to  the

                      plaintiff to the extent of his  1/4th  share  in  the

                      interest of justice.



                   b) Cost of the suit to be awarded;

                   c) Any other relief or reliefs which  the  plaintiff  is

                      legally entitled to the same”.

16.    Defendant no. 11 Syed Maqdoom Shah (respondent  No.1  in  these

appeals) at the end of para 12 of his written statement,  has  pleaded

and  prayed as under:

“Hence it is prayed that the suit of plaintiff may  be  decreed

along with the share of defendant no.11  as  shown  under  para

no.6.  Further the amount of Rs.2,082/- spent by the  defendant

no. 11 during last  28 years as shown above at para no.  7  and

it may be decreed from the share of  the  plaintiff  and  other

defendants or otherwise  give  4  acres  of  land  in  lieu  of

Rs.2,182/- from the share of the plaintiff and other defendants

in addition to his own share to meet the ends of justice”.

Para 6 of which reference is given in above quoted para as

pleaded by defendant no.11 reads as under:

“The shares ascertained as given by the  plaintiff  under  para

(6) are correct”.

17        In para 6 of the plaint, shares are mentioned as under:

“ 6)   That, the shares of the parties are as follows:

The defendants No. 10 and 11 are entitled for half share to the

extent of their mother Shahzadi Bee.

The plaintiff  is  entitled  for  1/4th  share  in  the  entire

property.

The defendant no. 1 to 9 are entitled for 1/4th share only”.

18.      Now we re-produce the last sentence  of  judgment  and  order

passed by the Appellate Court – High Court of Andhra Pradesh in  first

appeal A.S. No. 734 of 1991 whereby suit for partition is decreed –

“The suit is accordingly decreed and  appeal  is  allowed  with

costs”.

19.    By the impugned order dated 21.4.2005 exercising  powers  under

Section 152 of the Code, the First Appellate Court has now directed as

under:

“Accordingly, for the reasons stated above, these  applications

are allowed and the decree  in  A.S.  No.  734  of  1991  dated

25.1.1996 is directed to be amended allotting and dividing half

share in the suit schedule property to the petitioners 1 and 2,

one-fourth share to respondents 1 to 6  herein  and  one-fourth

share to respondents 7 to 15 herein.  There shall be  no  order

as to costs”.

20.   Had the appellate court, not decreed the suit with discussion of

evidence after rejecting the plea of the defendant  No.12  as  to  his

claim of ownership, and had the defendants 1 to  11  not  pleaded  for

separation of their shares with admission of share of the plaintiff as

decreed by the Appellate Court , it could have been said that the High

Court erred in declaring shares of the plaintiff or the defendants  by

resorting to Section 152 of the Code.  But in the present  case  since

there is  a clear finding of shares of the parties in the judgment and

order dated 25.1.1996,  as  such  by  clarifying  the  decree  by  the

impugned order, in our opinion the High Court has committed no mistake

of law.  In this connection, we would like to re-produce sub-rule  (2)

      of Rule 18 of Order XX of the Code, which reads as under:

“18. Decree in suit  for  partition  of  property  or  separate

possession of a share therein –Where the Court passes a decree

for the partition of property or for the separate possession of

a share therein, then,–

xxx      xxx           xxx        xxx

(2) if and in so far as  such  decree  relates  to  any  other

immovable property or to movable property, the  Court  may,  if

the partition or separation cannot be conveniently made without

further inquiry, pass a preliminary decree declaring the rights

of the several parties, interested in the property  and  giving

such further directions as may be required”.

Above quoted sub-rule clearly indicates that in the preliminary decree

not only the right of the plaintiff but rights and interests of others

can also be declared.

21.   At the end, we would also like to refer the case of  Shub  Karan

      Bubna alias Shub Karan vs. Sita Saran Bubna and Others  (2009)  9  SCC

      689 wherein it is explained that “partition” is  a  redistribution  or

adjustment  of  pre-existing  rights,   among   co-owners/coparceners,

resulting in a division of land or other properties  jointly  held  by

them into different lots or  portions  and  delivery  thereof  to  the

respective allottees. The effect  of such division is that  the  joint

      ownership is terminated and the respective  shares  vest  in  them  in

      severalty.

22.      This Court has earlier also reiterated in U.P.SRTC vs. Imtiaz

      Hussain (2006) 1 SCC 380 has reiterated  that the basis  of  provision

of Section 152 of the Code is found on the maxim ‘actus curiae neminem

gravabit’ i.e. an act of Court shall prejudice no  man.   As  such  an

unintentional mistake of the Court which may prejudice  the  cause  of

any party must be rectified. However, this  does  not  mean  that  the

Court is allowed to go into the merits of the case to alter or add  to

the terms of the original decree or to give a finding which  does  not

exist in the body of the judgment sought to be corrected.

23.   For the reasons as discussed above, we  do  not  find  force  in

these appeals which are  liable  to  be  dismissed.  Accordingly,  the

appeals are dismissed.  No order as to costs.

….…………………………………………..J

(SUDHANSU JYOTI MUKHOPADHAYA)

………………………………………………J

(PRAFULLA C. PANT)

NEW DELHI,

SEPTEMBER 16, 2014.

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