Orissa High Court
Gouri Bewa vs Ari Pradhan And Ors. on 18 March, 1986
Equivalent citations: AIR1987ORI212, AIR 1987 ORISSA 212, (1986) 62 CUT LT 105
ORDER S.C. Mohapatra, J.
1. Defendant No. 3 in a suit for partition is the petitioner in this Civil Revision assailing the order of the trial court refusing to correct the decree, as prayed for by her.
2. In the plaint, the following genealogy was indicated :
Madhu Biswal | __________________|___________________ | | Babana Dase | | Aujuna ___________________|_______________ | | | | | Chaitan Dama Sripati | | =Tanu ___________|____________ Bhima | | | =Gouri (D. 3) | Satrughna Alekha | (D. 1) __________________| | | Chhaya Golakha (Plaintiff) (D. 2)
3. After consideration of the evidence led by the parties, ihe trial court found defendant No. ! not to be the son of Arjun, but to be the son of Sripati and one of the brothers of Chhaya. On a confused finding, the trial eourt in the absence of any dispute about the ancestral character of the disputed properties, considered the question of share of each of the parties. It held that the line of Baban iscompletelyextinctand accordingly, the entire disputed ancestral properties belonged to the branch of Dasa. Dasa had three sons. They are Chakan, Dama and Sripati. Line of Chailan became extinct. Thus, the ancestral properties were to be divided half and half between Dama and Sripati. Trial Court categorically found that the disputed properties were divided by metes and bounds between lines of Dama and Sripati half and half. On this finding defendant No. 3, Gouri, the widow of Bhima is to enjoy half of the disputed properties of Dama and plaintiff, defendant No. I and defendant No.2 are to get rest half of the disputed properties of Sripati.
4. Bhima, the husband of Gouri, during his lifetime, sold some of the properties to defendant No. 5. Accordingly, the purchased properties of defendant No. 5 were specifically excluded from the scope of partition.
5. The trial court in spite of its finding that Bhima and Sripati were separated by nicies and bounds each enjoying half share exclusively and plaintiff and her two brothers, viz; Alekh (defendant No. 1) and Golakha (defendant No. 2) getting one-ninth share and four-ninth share each respectively from out of the half of the disputed ancestral properties of Sripati, ordered :
"The suit is decreed in part preliminarily hut in the circumstances without costs. The plaintiff, defendants Nos. land 2 are directed to divide the suit property amicably (excluding the half share in share in khata No. 64 now in possession of defendant No. 5. by virtue of the sale deed of Bhima Biswal the husband of defendant No. 3); plaintiff would get l/9th share while defendants Nos. 1 and 2 will each take 4/9th share. If they fail todivide amicably as per this order within six months, any one of them may move the Court to divide the same accordingly through Court Commissioner."
6. A formal preliminary decree wasdrawn up to be sealed and signed on 24-3-1976 without any objection. At the initiative of the plaintiff final decree proceeding was taken up and on the basis of the report of the Commissioner the same wasdrawn upon 19-4-1978. Long thereafter on 16-11-1979. defendant No. 3 filed the application for amendment of the preliminary decree which was inconsistent with the finding on several issues of the trial Court.
7. The trial Court in spite of accepting the inconsistency refused to amend the preliminary decree on the ground that there is no scope for the same under Section 152, C.P.C., there being no arithmetical or clerical error. It held that the rights of the parties having flown from the decree there is no scope for amendment of the same at such a belated stage when the same became final without any challenge in any forum earlier.
petitioner, submitted that the inherent power of the Court is available to be exercised only in such circumstances since no right of any party has been created by the decree. Mr. P. Kar, the learned counsel for defendant No. 1 opposite party No. 2, on the other hand reiterated the grounds on which the trial Court refused to amend the decree.
9. On the submission of both parties the question for consideration is : Whether the inherent power is to be exercised in such cases? It is true that a party who is negligent does not deserve the inherent power to be exercised in his favour. Yet law is not to punish a person for his laches. Where on the face of it there is no scope for any right being created in favour of another party, the inherent power should be exercised in the ends of justice for unreasonable enrichment of one party on account of confusion of the Court. The prejudice to the parties enriching themselves can be mitigated by payment of costs. On the admitted position that the entire disputed properties were the ancestral properties of Dama and Sripati and ihe branches of Dama and Sripati separated themselves by metes and bounds, there is no scope for the plaintiff and defendants 1 and 2 getting the properties of Dama's branch by partition. The confusion was created in the ordering portion by writing "the disputed properties". In the final decree (here was no scope on the aforesaid finding on an issue to divide the properties of defendant No. 3 among plaintiff and defendants Nos. 1 and 2. Defendant No. 3 isa lady. She was represented by a counsel. Whether the ordering portion is in accordance with the findings is the duty of the learned counsel for the party. In such circumstance, the negligence, if at all, is of delay. Being satisfied with the finding that the properties of Bhima were not liable for partition among plaintiff and defendants Nos. I and 2, if defendant No. 3 remained silent it cannot be said that she was such negligent to be deprived of her properties on the basis of the final decree. This is a clear case where mistake of the Court has caused prejudice to defendant No. 3. In the peculiar circumstance of this case, I am satisfied that in exercise of the inherent power, the trial Court ought to have corrected the ordering portion of the preliminary decree, which admittedly is inconsistent with the finding on the issues without putting undue importance to the creation of right of third party and delay in approaching the Court.
10. Plaintiff has initiated the final decree. Defendants ! and 2 must have also participated in the same for the purpose of equi-distribution of properties according to shares. In the absence of further materials, I assess the cost involved for the final decree proceeding to be Rs. 500/- (Rupees five hundred). Defendant No. 3 shall deposit Rs. 500/- in the trial Court within three months from today and on deposit of the same the trial Court shall modify the preliminary decree. On failure to deposit the amount within the stipulated period, the trial Court shall refuse to modify the ordering portion of the preliminary decree to make it consistent with the findings.
11. In the result, the Civil Revision is allowed and the impugned order is set aside; but without any order us to costs.