1991 PLP 1859 (MLD)

M. Sardar Khan for Petitioners. M.M. Yunas Shah for Respondents. Date of hearing: 17th February, 1991 The only question requiring determination in this revision petition is whether the learned Additional District Judge was legally justified in setting aside the judgment and decree of the trial Court, decreeing the plaintiffs' suit, and in remanding the case to the trial Court with the direction that the plaintiffs are to submit amended plaint by describing the suit property, giving its Khasra numbers, per the revenue record and for recording fresh evidence.

2. Facts of the case briefly stated are that plaintiffs, petitioners herein, instituted the present suit against the defendants-respondents for declaration to the effect that the plaintiffs and the defendants are owners and in possession in equal share of the agricultural and residential immovable property described in the schedule attached to the plaint. It was further prayed that the defendants be restrained from claiming the entire land to be their exclusive property in the settlement proceedings.

3. It was alleged that one Jamroz Khan was common predecessor of the parties who owned one rupee 2/3 paisas Daftar. On his death the property devolved on the predecessor-in-interest of the plaintiffs and that of the defendants in equal shares and as such are sharing its usufruct. That predecessors of the parties had in their lifetime effected private partition of part of the joint land but left `Ghair Mumkin' and `Ghair Mumkin Pahar' type of land and residential property joint and such private partition was reduced into writing. That about a month prior to the institution of the suit during the first settlement operation in the area defendants claimed to be the sole owners of the suit land and the residential area and insisted upon the authorities to enter them as sole owners of the immovable property which compelled the plaintiffs to bring the present suit.

4. Defendants in their joint written statement resisted the plaintiffs' suit on several legal and factual grounds. It was stated that private partition of their joint property has taken place between the parties since long and each one of the parties is in possession of his respective share allotted to him. That previously the defendants' predecessor had in his lifetime purchased some land which devolved on them exclusively. However, it was admitted that "Ghair Mumkin Jungle" type of land has not been partitioned so far.

5. Both the parties led their evidence in support of their respective pleas whereafter the learned trial Judge decreed the plaintiffs' suit. In appeal by the defendants the judgment and decree of the trial Court was challenged mainly on the factual controversy whether private partition did take place or not as is the case set up by the parties in their pleadings. After the arguments were heard, the learned Additional District Judge formed his view that no effective and enforceable decree could be passed in the matter as there was no reliable evidence to show that the suit land described by boundaries in the `Goshwara' filed with the plaint tallies with the Khasra numbers of the land given in the settlement record to which the plaintiffs have taken an exception. Accordingly, the judgment and decree of the trial Court was set aside and the case remanded vide the order impugned in the petition.

6. I have heard the learned counsel for the parties and perused the record. Preliminary objections as to the maintainability of the revision petition were raised by the learned counsel for the respondents that the impugned order did not fall within the meaning of section 115 of the Code of Civil Procedure. It was further urged that discretionary order of the present nature, in the absence of any illegality and irregularity being shown or any injustice resulting therefrom pointed out, is not open to any interference in revisional jurisdiction. There is no dispute with regard to the proposition of law raised but when considered in the light of the facts of the present case, I find no force in both these objections. The judgment and decree of the trial Court in favour of the petitioners herein having been set aside by the impugned order it did fall within the ambit of "case decided" and becomes questionable under section 115, C.P.C. The second objection is not preliminary in nature and cannot be gone into and answered without going into the merits of the case. The only question requiring determination in this petition, in short, is, the propriety and legality of the order of remand impugned in this revision petition, with reference to the direction for amendment of the plaint suggested therein.

7. According to the learned counsel for the petitioners the suit property is fully described by boundaries in the schedule attached to the plaint which has further been supplemented by a copy from the settlement record, brought on file in the statements of the official witnesses, which is sufficient compliance of the provision of Order 7, rule 3 of the Code of Civil Procedure. Reference was also made to order sheet No.20 dated 20-9-1987, of the trial Court file, to show that Patwari Halqa and Saddar Qanungo were directed to produce the relevant Revenue Record of the suit land so as to reach a correct decision. Statements of both the witnesses were recorded in Court and extracts from the settlement record were duly exhibited to which no exception was taken. That these materials available on the record, according to the learned counsel, were either misread or disregarded in passing the impugned order. The argument of the learned counsel for the respondents that description of property given in the schedule for identifying it would not fulfil the requirement of law, is misconceived. The schedule giving the description of the suit property for its identity having been specifically referred to in the plaint, for all practical purposes, is deemed to be a part of the pleading and any decree passed or order made in the suit would be deemed to be in respect of the property given in the schedule. The learned counsel for the petitioner did not deny that cause of action accrued to the plaintiffs-petitioners in 1985 when in the settlement operation the defendants claimed to be the sole owners and in possession of the suit land to the exclusion of the plaintiffs. It was further not denied that the settlement proceedings were completed in the year 1985-86 i.e. during the pendency of the present suit which was filed on 19-9-1985. The Revenue Record at the relevant time was, therefore, not yet prepared and as such not available to the plaintiffs. It was for these reasons that description of property was given by boundaries and by the name given to various fields for its identification. In the meantime when the settlement proceedings were completed the learned trial Judge felt the necessity of having the Revenue Record so as to have the Khasra numbers of the suit land for passing of an effective decree in case the plaintiffs succeed. Accordingly Patwari Halqa was summoned who was directed to prepare "Goshwara Malkiat" of both the parties from the Revenue Record in his possession. The Niab-Office Qanungo was also asked to bring the original record for perusal of the Court. There is no mention in the said order/direction that the Patwari Halqa was to tally the land in suit, described by boundaries in the schedule attached, with the settlement record and prepare a comparative table showing the Khasra numbers of such land. Statement of the Patwari, recorded in Court, is also silent on this aspect of the case. There is nothing on the record to show that Patwari Halqa either visited the spot in the presence of the parties or identified the land on the spot and ascertained its Khasra numbers. It is evident that in the schedule referred to above the description and boundaries of the built up property is given at serial 1 to 7 while that of the land at serial No.8 to

22. However, the copy from the settlement record would show that the suit land consists of about 65 Khasra numbers. i.e. 14 fields have been given 65 different Khasra numbers. These discrepancies which are unexplained rightly prevailed with the learned District Judge. The impugned order asking for amendment of the plaint in the circumstances of the case is, therefore, unquestionable. The power of the Court to ask for such amendment can be spelled out from Order 6, rule 5 of the C.P.C. which reads as follows:

"A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, may in all cases be ordered, upon such terms, as to costs and otherwise, as may be just:" In the instant case when the suit property is identified in the schedule by boundaries and name given to different fields, in the absence of any corresponding Khasra numbers given to it in the settlement operation, no effective, executable and enforceable decree can be passed in case the plaintiffs succeed on merits. Though the learned trial Judge has tried to resolve the difficulty by summoning the Patwari, but as pointed out, the needful, has not been done. The learned District Judge, therefore, rightly asked for a further and better statement from the plaintiff which necessitated amendment of the plaint so that the suit property could be identified by Khasra numbers so as to avoid any difficulty at the time of execution of the decree if passed. The order of remand having been passed with jurisdiction, in the absence of any illegality and irregularity and miscarriage of justice, requires no interference. The revision petition being without merit is dismissed. Parties are to bear their own costs. AA./1224/P Revision dismissed.