TILAK RAJ versus BAIKUNTHI DEVI (D) BY LRS.

Citation: [2009] 2 S.C.R. 452 · Decided: 16-02-2009 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2009] 2 S.C.R. 452 
A 
TILAK RAJ 
V. 
BAIKUNTHI DEVI (0) BY LRS. 
Civil Appeal No. 1058 of 2009 
B 
FEBRUARY 16, 2009 
[S.' 8. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.] 
Code of Civil Procedure, 1908: 
'.f 
s. 152 -
Clerical mistake can be rectified by court in 
<Ii 
c exercise of inherent powers under s. 152 provided such mistake 
is genuine and bona fide - Administration of justice. 
Inheritance: Land acquired by FCI, found to be surplus -
Returned to widow of original owner who was one of the heir on 
D 
payment of certain sum - Claim for share in the land by the 
other heir- Held: It was reversion of land and not purchase by 
.... 
widow in her own right - She received it as representative of 
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original owner, therefore, ownership of reverted land has to be 
shared by the other heir. 
E 
'D' and 'M' were brothers. 'M' was father of appellant. 
The suit property was owned by 'D' who died in 1968 
leaving his wife, respondent 1 and his mother 'R' as 
natural and legal heirs. 'R' executed a registered Will in 
>\ 
favour of her grandson, the appellant. However, the land 
,.___ 
F 
left by 'D' was mutated. in favour of respondent 1 on the 
basis of Will. 
Appellant filed a suit for possession claimjng half 
share in the property bequeathed by Will in his favour by 
G 
his grandmother, which was decreed. In the execution 
proceedings, it was found that Khasra number 25R/52 
,, 
was wrongly mentioned in the decree instead of 26R/52 
"' 
due to which decree was not executed. 
H 
452 
TILAK RAJ V. BAIKUNTHI DEVI (D) BY LRS. 
453 
Certain other lands owned by 'D' was acquired by A 
->( 
FCI during his life time. After his death, a part of that land 
was re-conveyed in view of the fact that the FCI found 
that the said acquired land was surplus. 
Appellant filed a suit for declaration that he was a 
B 
co-sharer of the land returned by FCI to respondent 1 and 
the land which was wrongly described in the earlier suit. 
The suit was decreed. The appellate court allowed the 
~ 
appeal of respondent 1 holding that in the earlier suit, the 
.. 
description of property was wrong and the remedy 
available to appellant was to move an appropriate c 
application under section 152 CPC. Regarding other 
portion of the property, the appellate court was of the view 
that the same was barred under Order 2 Rule 2 CPC, as 
claim regarding the said property not having been made 
in the earlier suit, the appellant was barred from claiming D 
,. 
the same in the second suit. High Court dismissed the 
'" 
appeal. Hence these appeals. 
Allowing the appeals, the court. 
HELD: 1.1. The Patwari had issued a wrong certified E 
copy of Jamabandi incorporating therein Khasra No. 25R/ 
52 against Khewat No. 50 Khatoni No. 60 of Jamabandi 
f 
for the year 191;>6-67 of village Mojowal. In fact there was 
... 
no Khasra No. 25R/52. It was actually 26R/52. On the basis 
of and on account of such wrong supply of materials in F 
the certified copy of Jamabandi, the appellant had sued 
by wrongly mentioning identity of land as Khasra No. 25R/ 
52. There was no dispute that the parties in the earlier suit 
were agitating regarding the Estate of 'D'. In that view of 
the matter the appellant was not at fault at all for suing the G 
... 
land· as mentioned in the plaint filed in the earlier suit. 
~ 
Actually, this was a mistake on the part of the Patwari or 
some Revenue Officer. It was nowhere disputed that 
Khasra No. 26R/52 was owned by father of appeJJant and 
there was no Khasra Number described as 25R/52. H 
454 
SUPREME COURT REPORTS 
[2009) 2 S.C.R. 
A 
Moreover, no rebuttal on behalf of the respondent was 
,,_ 
made in the written submissions in the earlier suit or 
otherwise that it was not Khasra No. 25R/52. The aforesaid 
mistake was of clerical nature which could have been 
corrected by applying the provisions of Section 152 CPC. 
B The remedy that was available to the appellant was to file 
an application seeking for amendment of the decree by 
way of correcting the clerical mistake in respect of Khasra 
Number. Since the mistake was clerical in nature and the 
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appellant being not responsible for the said clerical 
.. 
c mistake which had occurred due to wrong recording of 
Khasra Number, there is no reason as to. why such a 
t-
genuine and bona fide mistake cannot be allowed to be 
r
corrected by exercising the powers under Section 152 
CPC. [Paras 13, 14] [461-H; 462-A, B, C, D, E, F, G] 
D 
K. Rajamouli v. A. VK.N. Swamy (2001) 5 SCC 37 - re

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