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Syed Mahomed Maliha and ors. Vs. Chowdhury Mahomed Ismail Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal203
AppellantSyed Mahomed Maliha and ors.
RespondentChowdhury Mahomed Ismail Khan and ors.
Excerpt:
- .....in kind is actually realized. the subordinate judge who, it may be stated in passing, was a different subordinate judge from the subordinate judge who passed judgment in the case, held that the commissioners were the agents of the court and that he had the power to correct those mistakes. he came to the conclusion that there were the mistakes as pointed out by the clerk whom he asked to make a report. apparently, the clerk prepared his report from the schedule attached to the petition filed by the plaintiff for amendment of the decree because in one instance we find that a certain error appeared in the same shape in the petition as in the report of the clerk. however that may be, the order was made by the subordinate judge that the decree should be amended as reported by the clerk. the.....
Judgment:

1. This is an appeal by the defendants and it arises out of a suit for partition. The judgment in the trial Court was delivered on June 27, 1916. The defendants had no ground of complaint against the decree which was drawn up in accordance with it. Their grievance is against the decree which was prepared by amending the decree as originally made on March 24, 1925. The circumstances which gave rise to the appeal are somewhat novel in our experience.

2. There is no dispute as regards the shares of the parties. The plaintiff is entitled to two-thirds share and the defendants are entitled to one-third share of the property. Two commissioners were appointed to effect a partition. Each of them appeared, previous to their being appointed as commissioners, as pleader for one of the parties. These commissioners made a report, and after making elaborate enquiry they made a division of the properties in dispute. Their final report is dated the 17th June 1916. The properties consisted of superior rightes in certain mouzas and also tenures comprised within those mouzas and the joint properties were placed by the commissioners in five schedules, A, B and C, consisted of the superior interest in the mehals. Schedule A was left joint by consent of 'parties. Schedule B was allotted to the plaintiff and Schedule D to the defendants. Schedule D and Schedule B consisted of tenures. Schedule D was allotted to the plaintiff and it was-arranged by consent of parties that plaintiff would grant a lease of tenures to the defendants. Schedule B was allotted to the defendants and it was similarly arranged by consent of parties that the defendants would execute a lease in favour of the plaintiff for those properties. The scheme prepared by the commissioners has been stated in detail at page 30 of the paper-book in the commissioners report.

3. The question that will arise for our decision in this appeal is with reference to the rent that is payable by one party to the other with reference to the lands in Schedules D and E. What was done by the commissioners was that they set off the rent payable by the plaintiff to the defendant and they directed that the excess of the rent payable by the defendant to the plaintiff should be the only amount which the defendant should pay to the plaintiff. They fixed the amount at Rs. 413-11 as-4p. after taking into account the rents payable on account of various items by the plaintiff to the defendants and by the defendants to the plaintiff and setting one off against the other. The matter then came before the Subordinate Judge who, by his judgment dated the 27th June 1926, modified the report of the commissioners as regards the amount of rent payable by the defendants to the plaintiff. The Subordinate Judge made certain calculations and came to the conclusion that the rent payable by the defendants to the plaintiff should be Rs. 129-2-0 in one kist in the month of Falgoon. With this variation he affirmed the report of the commissioners and directed that final decree should be prepared according to his judgment-the report and the maps of the commissioners were to be made part of the decree. A decree was drawn up in accordance with the direction of the Subordinate Judge and it was signed by the Subordinate Judge on the 31st July 1916. We are informed that from that date the defendants went on paying the rent fixed by the Subordinate Judge at the rate of Rs. 129-2-0 to the plaintiff.

4. Then about 3 1/2 years subsequent to the judgment of the Subordinate Judge on the 19th January 1920 the plaintiff put in an application for amendment of the decree purporting to make the application under Sections 151 and 152 of the Civil P.C. The Subordinate Judge then in office thereupon called for a report from his clerk who was in charge of the duty of preparing decrees. The clerk made two reports stating that the commissioners had made certain errors, and that is the matter which we shall have to consider. In the opinion of the clerk the error that the commissioners had made in their report, which had subsequently been acted upon by the Subordinate Judge in his judgment was that they had put down the rent realizable with regard to certain properties according to the record of rights prepared with regard to those properties. But in setting down the rent realizable for those properties they had made a mistake.

5. The plea of the defendants was that the commissioners did not set down the rent according to what was recorded in the record of rights. Their plea was that the plaintiff himself had submitted to the commissioners a khatian showing what were the actual realizations of the different mehals and of various other properties in question and the commissioners had either adopted the rents as given in those khatians or they came to their own conclusion as to the rents which should be considered payable with regard to certain properties. This last has reference to the question as to the amount of rent payable for lands for which rent in kind is actually realized. The Subordinate Judge who, it may be stated in passing, was a different Subordinate Judge from the Subordinate Judge who passed judgment in the case, held that the commissioners were the agents of the Court and that he had the power to correct those mistakes. He came to the conclusion that there were the mistakes as pointed out by the clerk whom he asked to make a report. Apparently, the clerk prepared his report from the schedule attached to the petition filed by the plaintiff for amendment of the decree because in one instance we find that a certain error appeared in the same shape in the petition as in the report of the clerk. However that may be, the order was made by the Subordinate Judge that the decree should be amended as reported by the clerk. The report of the clerk in the first instance was that the amount which the Subordinate Judge had decreed to be payable as rent by the defendants to the plaintiff should be increased from Rs. 129-2-0 to Rs. 346-13-6. Then the clerk made a further report and in that report he stated that the amount should be increased further, and in place of Rs. 129-2-0, as decreed by the Subordinate Judge, the amount should be Rs. 372. Prom this order of the Subordinate Judge accepting the report of the clerk the defendants moved this Court and some of our difficulties have been caused by the attitude the parties took at the hearing of the Rule in this Court.

6. One should have thought that the defendants might have taken the plea that the judgment of the Subordinate Judge was not based upon any arithmetical or clerical error, an the decree was in accordance with the judgment. If there was any mistake in the judgment it could only be amended by way of review or appeal. But, unfortunately it seems, for certain unexplained reason, that was not the attitude that was talon on behalf of the defendants. It seams, on the other hand, their case also was that there had been some errors in calculating the price of paddy and rice agreed upon by the parties. But it is apparent that the contention of the defendant was that the commissioners proceeded upon the khatian and that of the plaintiff was that they did so upon the settlement record. The order of this Court was, as we understand it, that if there was any clerical error in the decree that might be amended and if it was more than a clerical error that was not a question of amendment of the decree. Whatever that may be, by the ordering portion of the judgment, the case was sent down to the lower Court for the purpose of considering whether the report of the commissioners and the partition proceedings were based upon the settlement record, or upon the khatian agreed to between the parties and then to dispose of the application according to law. The case went back accordingly to the lower Court and the matter was heard by a third Subordinate Judge, Mr. Rajendra Lal Sadhu, and judgment delivered on the 22nd February 1922.

7. It must be here stated that no amendment of the decree was actually made under the previous order of the Subordinate Judge dated the 6th December 1920. Before the third Subordinate Judge oral evidence was adduced by both parties as to how the commissioners proceeded to make their report, whether basing it upon the record of rights or upon the khatian as presented before them by the plaintiff. The Subordinate Judge says that it was not safe to decide the question on the oral evidence, but there were materials on the record to come to a correct conclusion. Here it must be stated that one of the commissioners who was originally a pleader for the plaintiff was dead at the time. The other commissioner who was a pleader for the defendants was alive and the regrettable thing is this : that he considered that it was not inconsistent with his position which he took as a commissioner to appear for the defendants as a pleader at the hearing of the matter before the Subordinate Judge. If evidence was admissible at all as regards the procedure adopted by the commissioners ha would be a witness and the best witness with regard to the matter. But most unfortunately the pleader did not realize his position that he had acted in the matter in a quasi-judicial character, and he could not properly act as an advocate in the case. But, however, it seems that the Subordinate Judge himself did not point out the impropriety of the conduct of the pleader and he allowed him to appear as a pleader in the case, and that gentleman pointed out to the Subordinate Judge that long before the hearing in one of the reports by the two commissioners they had stated that they did not remember a certain matter as to what procedure they had adopted, and it was not likely that he would remember anything as to what was done in 1916, at the time when the matter was taken up before the Subordinate Judge in 1922. The learned advocate for the; appellants asked us to call that gentleman as a witness before us; even if we were inclined to do so it would be useless, as what he did not remember in 1922 he could not possibly remember in 1926, and it would not be reasonable to ask him to remember things which happened ten years ago. That, however, is not a matter we need consider now.

8. The next thing it that the Subordinate Judge on certain grounds held that the commissioners proceeded upon the record of rights. The first observation that we must make with regard to the procedure adopted in this casa is that we cannot approve of the procedure that evidence should be taken as regards the question as to the matter on which a Court of law based its judgment in order to consider whether there is any arithmetical or clerical error in the judgment, apart from what is contained in the judgment itself. Here it must be stated that it does not appear either in the report of the commissioners or in the judgment of the Subordinate Judge of June 1916 that the rent roll was given in accordance with what was recorded in the record of rights. It is contended by the appellants that Mr. Sadhu was in error in holding that the commissioners took the rents from the record of rights. (After discussing the evidence the judgment continued). The obvious inference, it seems to us from these proceedings, is that although the record-of-rights might have been before the commissioners, which, however, is not on the record as it ought to have been if it was taken in evidence by the commissioners, that they did not proceed entirely with reference either to the record-of-rights or to the khatian. Then it appears, as we have already stated, that the plaintiff prepared these khatians and produced them before the commissioners evidently with the object that the actual rent realized should be taken from those papers. The plaintiff actually took the rent as fixed by the Subordinate Judge after consideration of the report in his judgment of June 1916 for about four years, and after a lapse of that period he professed to have discovered that the decree had been erroneously drawn up. This procedure suggests to us that the plaintiff was advised by some person whose business it is to make profit out of the litigation of others to take the course he has taken, and owing to the unfortunate way the proceedings have dragged on the adviser has got his reward.

9. Then another thing happened, which we should not omit in mentioning : that after the judgment of Mr. Rajendra Lal Sadhu, the third Subordinate Judge, who had dealt with this matter on the 22nd February 1922, there was another application before a fourth Subordinate Judge and his decision is dated the 10th of April 1923. The application before him was by both the parties. Defendants, of course, wanted to get rid of the effect of the decision of Mr. Sadhu and the plaintiff wanted something more, and by the decision of Mr. Upendra Nath Biswas in 1923 the plaintiff got something more, because there was some inconsistency in the judgment of Mr. Sadhu under which he directed that the rent payable by the defendants to the plaintiff, which was fixed by the original judgment to be Rs. 129-2-0, should be increased to Rs. 252-11-8; while at the end on his judgment he said that the decree should be amended as indicated in the report of the execution clerk which was made in 1920. Mr. Biswas, by his order, corrected his anomaly, agreeing with the rest of the judgment of Mr. Sadhu, and increased the amount of rent payable to the defendants to Rs. 372. The plaintiff appeals from the decree as amended by that order. The intermediate orders of the Subordinate Judges were not given effect to, but the decree was amended on the 24th March 1925 under the orders of Mr. Biswas. In our opinion the ground on which the Subordinate Judges other than the Subordinate Judge who delivered judgment in the suit held that there was an error in the decree cannot be sustained. The view taken by them that the commissioners had distributed the rent of the tenures with reference to the record-of-rights is baseless. Moreover the report of the commissioners was considered and modified as regards the amount of rent payable by the defendants by the Subordinate Judge in his judgment of June 1916. There was no arithmetical or clerical error in the judgment of the Subordinate Judge which might have been corrected under Section 151 or Section 152 of the Civil P.C. If there was any error, that error ought to have been corrected on appeal; or if there was any error apparent on the face of the record there might have been an application for review of judgment under Order 47, Rule 1 of the Civil P.C. The Subordinate Judge after consideration of the facts came to, the conclusion that the rent payable by the defendants was Rs. 129-2-0. The decree as originally drawn up was quite in accordance with the judgment and there was nothing wrong in it. Without the judgment being amended or set aside that decree could not have been amended or set aside by an indirect attack. On behalf of the respondent it was urged that we might amend the judgment under those sections of the Civil P.C., because some wrong has been done to his client. There is nothing in the judgment which comes within the purview of Section 151 or Section 152 of the Civil P.C. The proper remedy, as already indicated, was by way of review or appeal against the judgment if there was anything wrong in it.

10. The result, therefore, is that this appeal is allowed and the decree as amended must be set aside and it should be brought in accordance with the judgment delivered on the 27th June 1916. The only alteration that seems necessary to be made is that those lines which have been struck off in the decree as originally framed in red ink should be restored and it must be set forth that the defendants would be liable to pay Rs. 129-2-0 as rent to the plaintiff.

11. The appellants are entitled to their costs in this Court and in the lower Court. We assess the hearing fee at five hundred rupees.


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