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Karam Singh Vs. Charan Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 898 of 1968
Judge
Reported inAIR1972P& H295b
AppellantKaram Singh
RespondentCharan Singh and anr.
Cases ReferredTeja Singh v. Bhagwan Singh
Excerpt:
.....of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - it is well settled that if a part of the property is omitted from the plaint altogether in a pre-emption suit, an amendment of the plaint permitting the inclusion of the omitted property would be allowed provided the omission is found to be unintentional (vide jalal din v. ). 4. the error allowed to be rectified by the impugned amendment having been found to be unintentional and the result of a mere clerical error, the petition must fail and is hereby dismissed with costs......of the plaint and which is sought by the amendment to be only partially rectified inasmuch as the house situated in the land continues to find a mention in the plaint even after the amendment. as it is, it cannot be said that the plaint intended to relinquish his claim to the abadi house. had he so intended, the boundaries of the house and the site would not have been mentioned in the plaint.it is well settled that if a part of the property is omitted from the plaint altogether in a pre-emption suit, an amendment of the plaint permitting the inclusion of the omitted property would be allowed provided the omission is found to be unintentional (vide jalal din v. qaim din, 62 pun r 1914=(air 1914 lah 263); banta singh v. smt. harbhajan kaur, 1969-71 pun lr 862; deedar singh v. dalbir.....
Judgment:
ORDER

1. This is a petition for revision of the order dated the 2nd of August, 1968, of Shri Pritpal Singh, Senior Subordinate Judge, Jullundur, allowing respondent No. 1, who is the plaintiff in a pre-emption suit to amend his plaint.

2. The sale sought to be pre-empted is evidence by a registered sale deed executed on the 15th of March, 1967, which states the price paid for the property conveyed to be Rs.5,000/- and describes that property thus:--

'Situated within the area of village Damunda, Khewat 242 Khatauni 391 to 394 with these rectangle and Killas Nos. 22/18/2 * * * *

Total: 28 Kanals 9 Marlas.

Out of this one-half share amounting to 14 Kanals 4 Marlas and one house along with a vacant site bounded as follows--

East: Thoroughfare.

West: Charan.

North: Mehar Singh, Lakha Singh.

South: Das, Darshan Ram.

situated within the abadi of village Damunda. These are wholly owned and possessed by Duman Singh. Now I as attorney (for him) have the right to sell (the said property). Therefore, the land measuring 14 Kanals 4 Marlas without the house (which is situated) in the land, along with the whole house in abadi Damunda, along with all rights has been said to * * * * for a consideration of Rs.5,000/-.'

The suit above mentioned was instituted by the respondent on the 31st of October, 1967. In the plaint the property sought to be pre-empted was described in the following terms:--

'One-half share amounting to 14 Kanals 4 Marlas out of land measuring 28 Kanals 9 Marlas entered at Khewat 242 Khataunis 391 to 394 in the area of village Damunda and bearing Khasras Nos. 22/18/2 * * * * * * along with all rights appurtenant thereto and one house which is (situated) in the land along with the vacant site bounded as follows--

East: Thoroughfare.

West: Charan.

North: Mehar Singh, Lakha Singh.

South: Das, Darshan Ram.

situated in the abadi of village Damunda.

In his written statement which was presented to the trial Court on the 18th of May, 1968, the contesting defendant, who had purchased the property in dispute under the above mentioned sale deed and figures as the petitioner before me took an objection that the suit was liable to be dismissed as it was one seeking partial pre-emption. The objection was repelled by the plaintiff in his replicated dated the 22nd of June, 1968, but on the 15th of July, 1968, he presented an application praying for permission to amend the plaint by adding the words 'one house' in between the words 'land' and 'along' occurring in the plaint as part of the description of the property. The amendment was allowed on the ground that the error was due to an accidental slip or omission and not due to deliberation.

3. This petition has no merit. The suit as framed can certainly not be regarded as one for partial pre-emption. The entire land, the house and the vacant site conveyed by the sale deed were correctly described in the plaint in so far as the Khasra numbers of the land the boundaries of the house and the site are concerned. Their correct situation also finds a place in the plaint although another house which is described as being situated in the land and which was specifically excluded from the transaction of sale has also been included in the property sought to be pre-empted. The mis-description has obviously arisen from a clerical error which appears to have been occasioned because of a faulty reading of the sale deed by the scribe of the plaint and which is sought by the amendment to be only partially rectified inasmuch as the house situated in the land continues to find a mention in the plaint even after the amendment. As it is, it cannot be said that the plaint intended to relinquish his claim to the abadi house. Had he so intended, the boundaries of the house and the site would not have been mentioned in the plaint.

It is well settled that if a part of the property is omitted from the plaint altogether in a pre-emption suit, an amendment of the plaint permitting the inclusion of the omitted property would be allowed provided the omission is found to be unintentional (vide Jalal Din v. Qaim Din, 62 Pun R 1914=(AIR 1914 Lah 263); Banta Singh v. Smt. Harbhajan Kaur, 1969-71 Pun LR 862; Deedar Singh v. Dalbir Singh, 1970 Cur LJ 143 (Punj); Teja Singh v. Bhagwan Singh, 1970 Pun LJ 615, and Jarnail Singh v Bahal Singh, Letters Patent Appeal No. 583 of 1969, decided on 23-4-1970 (Punj) by a Division Bench of this Court consisting of Mahajan and Dhillon, JJ.).

4. The error allowed to be rectified by the impugned amendment having been found to be unintentional and the result of a mere clerical error, the petition must fail and is hereby dismissed with costs.

5. Petition dismissed.


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