P L D 1973 Peshawar 182 (PLP)

(1) Is the suit not maintainable in its present form? O. P. D: (2) Ie'the suit within time? O. P. P. (3) Has the plaintiff any cause of action in the present suit? O. P. D. (4) Whether the plaintiff is estopped to institute this suit by his conduct? O. P. D. (5) Whether the plaintiff and defendants 2 and 3 are the sole owners of the suit land? O. P. D. (6) Relief. Upon these issues evidence was produced by the parties and in consequence the appellant's suit was dismissed. His appeal against the judgment of the trial Court was also dismissed and hence this second appeal. Before me the learned counsel for the parties have confined their arguments to issue No. 5 only. The contention of the learned counsel for the appellant is that the Courts below have disregarded material evidence on record, or else have misinterpreted documentary evidence. It is common ground between the parties that Mst. Farosha had instituted Civil Suit (No. 64/1) in the Court of Senior Sub-Judge, Mardan, on 24-4-39 against the appellant and others for declaration that she was the owner of some part of the land which is the subject-matter of this suit, The proceedings in that suit were compromised by the parties on terms, amongst others, that Mst. Farosha gave up her claim to the suit land in consideration of 20 kanals of land which the appellant and others gave her for life or until she was to marry. It was also agreed by the parties that Mst. Farosha would remain in possession of the land in question and enjoy its usufruct, but would rot nave the power to sell or mortgage it. The agreement ends with the narration that upon the happening of one of the two events Mst. Farosa would surrender the land in favour of appellant who is the real owner. This compromise agreement had come up before the trial Judge on 19-5-39 and was allowed by him. In his order, however, the learned Judge, instead of incorporating the terms of com promise agreement, recorded that Mst. Farosha would be the owner of 20 kanals of lard and consequently the contrary mutation, attested on 14-3-39, by which the entire suit and had been shown to be in the ownership of the appellant and others, would, to that extent, be ineffective. It seems that after the suit of Mst. Farosha was disposed of, she continued to enjoy 20 kanals of land until she remarried and the appellant filed civil suit against her that she had lost all rights in that land and also that the inheritance mutation of Mst. Hamzania, attested Ira her favour in 1961, would be ineffective against his interest. In support of his case, the appellant brought on record a copy of the plaint of suit filed by Mst. Farosha in 1939 and a copy of the compromise agreement. Additionally, his evidence is that after the com promise in question Mst. Farosha had remarried and therefore she had lost all rights in the 20 kanals of land given to her in terms thereof and further that the inheritance mutation of Mst. Hamzania entered in her name would be equally ineffective against his rights. Mst. Parosha herself came to wtmit in hat evidence (recorded on 31-5-65) that she had, about 17-18 years age, remarried one Saeed Mohammad And from this it would be clear that the stand taken up by the appellant would be fully established. Strangely, however, the two Courts below have disregarded this crucial piece of evidence and consequently allowed themselves to err in reaching a correct decision. Now, the terms of compromise agreement clearly show that if Mst. Farosha was to remarry, she would lose all interests in tie 20 kanals of land given to her. And considering that on her own showing she had entered into matrimony with Saeed Mohammad after the compromise in question, she must be deemed to have lost all rights and interests in the piece of land which was given to her in the earlier proceedings. In this view, the claim of the appellant in his suit was perfectly justified and there should have been no difficulty for the Courts below to decree his claim. As regards the inheritance mutation of Mst. Hamaanla attested in her favour in 1961, the case of the appellant again seems to b, credible. Mian Mohd. Yunas Shah, the learned counsel for Mst. Farosha conceded before me that the land in the present proceedings was the same which was the subject-matter of litigation between the parties in the suit of 1939 as also that Mst. Hamzania had already died before the institution of that suit. This concession of the learned counsel is well-founded for in para. 1 of the plaint in that case Mst. Farosha had admitted that Mst. Hamzania was already dead. From this it would follow that the compromise agreement entered into that suit would be binding on Mst. Farosha, inasmuch as after having given up her claim to the land in that suit which included the inherit ance of Mst. Hamzania) she would be disentitled to claim any share in the same land which Is the subject-matter of the present proceedings. Notwithstanding this position, however, her name came to be entered in revenue record in 1961 as the owner of about 30 kanals of land (having inherited it from Msr. Hamzania) which was entirely illegal. The two Courts below have, however, reached a different conclusion on grounds entirely spurious. The finding of the learned Addl. District Judge is that in regard to this part of the case the appellant had made no challenge. But this is incorrect. A casual glance at the plaint filed by the appellant would show that he had challenged the rights of Mst. Farosha to any part of the suit land and this should have been sufficient to convince the Court. It occurred to me, however, while going through this case, that the order of the learned Sub-Judge dated 19-5-39, by which ho allowed the compromise application of the parties in the previous suit, was derogatory to the terms of compromise agree ment. In the compromise application the parties had agreed that Mst. Farosha had given up her entire claim in lieu of 20 kanals of land of which she was to remain in possession so long as she was alive or would not remarry. But in the order of the learned Judge no mention has been made of these condition and, in fact, Me. Farosha has been shown to have become the owner of 20 kanals of land. It is true that once a decree has been drawn up, which indeed as has been drawn up in the case on the basis of the order of the learned Sub-Judge reference cannot be made to the judgment to explain its contents. But tender sections 151 and 152, C. P. C, the Court has the power to rectify in decrees arithmetical mistakes or errors arising therein from any accidental slip or omission at any time either of its own motion or on the application of any of the parties. In this case, the learned Sub-Judge seems to have, by accidental slip, ignored the terms of compromise agreement and instead recorded in his order as if Mst. Farosha had become the owner of 20 kanals of land. I am, therefore, clear in my mind that in view of the compromise agreement between the parties, all that the learned Judge was required to do was to have endorsed it in terms (which appears to have been his precise intention), But somehow he came to record a contrary finding in his order. This case, therefore, appears to me to be covered by section 152, C. P. C. in which under the sue motu jurisdiction of the Court the decree can be amended, so as to bring it in accord with the compromise agreement. In support of this conclusion, I would reproduce the following observations from Note 6 to section 152, C. P. C. (Page 1437 of the Commentary on the Civil Procedure Code by V. V. Chitaley, 5th Edition (1951). Volume 1) :- "It is a cardinal principle of the law of procedure that the decree should agree with the judgment (See O. 20, r. 6). Hence, even in cases not falling within section 152, a Court has inherent powers to amend its decree when it is at variance with the judgment. In other words, when the decree does not correctly express what was really decided and intended by the Court, the Court has an inherent power 0 amend the decree so as to carry out its own meaning. In exercising this power, the Court is correcting what is really a mistake of its ministerial officers by whom the decree or order was drawn up." The learned counsel for the respondent, when he was confronted with this position and asked if he was to have any objection if the decree of the trial, Court Is accordingly amended, did not show his unwillingness. In this view, i would, exercising power under section 152, C. P. C. amend the decree of the Court below so as to bring it in accord with the contents of the compromise agreement. Now by keeping the contents of the amended decree in mind, it would be altogether clear that in view of the documentary evidence brought on record the appellant had succeeded to prove his case and his suit should have been wholly decreed, I would, therefore, allow this appeal, set aside the decrees of the Courts below and decree the suit of the appellant as prayed. The costs, however, will be borne by the parties. K. B. A, Appeal accepted.