THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Musstt. Saheda Begum Gopal Shah Versus Petitioners Respondents BEFORE HON BLE MR. JUSTICE KALYAN RAI SURANA For the Petitioner: For the Respondent: Mr. A.C. Sarma, Mr. P. Medhi, Mr. N. Kalita, Mr. S. Saikia Advocates. Date of hearing & judgment: 13.11.2017 JUDGMENT AND ORDER (ORAL) Heard Mr. A.C. Sarma learned counsel for the petitioner. None appears on call for the respondent although service of notice on the respondent is complete as indicated by order dated 18.09.2015. 2. By this application under Article 227 of the Constitution of India, the applicant has challenged the order dated 15.03.2013 as well as the order dated 26.03.2013 passed by the learned Court of Munsiff No.2, Kamrup Metropolitan, Guwahati in Title Suit No.146/04. During the Page 1 of 5
pendency of the suit, a settlement operation had taken place and accordingly, Dag Number and Patta Number of the suit land stood altered/changed. An inadvertent mistake crept in the plaint as new Dag and Patta numbers were not mentioned in the amended plaint. 3. During the course of cross-examination, the respondent s side had put suggestions to the petitioner with regard to the new Dag and Patta number that it were not in consonance with the land covered by the old Dag and Patta numbers. Therefore, in order to clarify the matter, the petitioner had filed an application under Order XIII Rule 10 CPC read with section 151 CPC to call for a report from the Circle Officer, Dispur Revenue Circle to clarify whether the present Patta No.1674 and Dag No.1204 has been abstracted from the Dag No.146 (old) / 914 (new) of K.P. Patta No.111 of village-satgaon under Mouza-Beltola in the district of Kamrup. 3. The said application was dismissed by the learned Trial Court on the ground that the Circle Officer was not a Court within the meaning of Order XIII Rule 10 CPC. In this context, the learned counsel for the petitioner has referred to the provisions of the Regulation 140 of Assam Land and Revenue Regulation, 1886 and submits that the Circle Officer is equivalent to an Assistant Circle Officer and the said authority is a Court within the meaning of Sub-Regulation (b) of Regulation 140. The said provision is quoted below:- 140. Place for holding Court:- Subject to the orders of the (State) Government:- (a) The Board may hold Court at any place within the State of Assam; (b) a Deputy Commissioner and Assistant Commissioner, or Extra- Assistant Commissioner (whether-in-charge or not of a Sub-division of a District), a Settlement-Officer, an Assistant Settlement-Officer, a Survey-Officer and an Assistant Survey Officer may hold his Court at any place within the limits of the district or sub-division to which he is appointed. Page 2 of 5
4. It is submitted that the learned Trial Court had mis-directed itself to hold that the Circle Officer was not a Court. It is submitted that thereafter the petitioner had submitted another application before the learned Trial Court under the provisions of Order XVI Rule 6 and 7 read with section 151 CPC to summon the Circle Officer, Dispur Revenue Circle to produce the relevant records. However, the learned Trial Court by order dated 26.03.2013, rejected the said petition on the ground that the previous prayer made by the petitioner was rejected and that the plaintiff had already closed the evidence and the suit is pending at the argument stage. Therefore, no merit was found in the petition. 5. It is submitted that the petitioner required the clarification because of the fact that it was during the pendency of the suit that the new revenue numbers were given in respect of the suit land by providing new Dag and Patta numbers. 6. In the opinion of this Court, if there is an error of mis-description of the suit land and/or its revenue record like Dag and Patta numbers, the same can be corrected at any stage of the suit. If one needs an authority on the point, the case of Pratibha Singh Vs. Shanti Devi Prasad, (2013) 2 SCC 330 may be referred to, where it has been, interalia, held, that if omission in description of property is found on scrutinizing the plaint, the Trial Court is obliged to point out the omission and insist on its rectification. In the case in hand, though the petitioner is not seeking a rectification, the Court can certainly allow a clarification to be brought on record. It causes prejudice to no one. 7. In the present case in hand the petitioner appears to be vigilant and had immediately sought to get a clarification based on the questions put to her during her cross-examination about the disputed land. The Page 3 of 5
petitioner has taken steps for clarification of the matter as the petitioner is the plaintiff in the suit. 8. As this Court finds that the Circle Officer is a part of the Revenue Court under the scheme of the Assam Land and Revenue Regulation, 1886 and he is the head of the Revenue Circle and is a Court within the meaning of Regulation 140(b) of the Assam Land and Regulation, it was permissible for the learned Trial Court to invoke the provisions of Order XIII Rule 10 CPC to call for the said records. Even if the Court thought that it had no power under Order XIII Rule 10 CPC to call for the record, the learned Trial Court still retained power under section 151 CPC to call for such report as the petitioner has invoked the provisions of 151 CPC also. 9. Consequently, this Court is inclined to hold that the learned Trial Court had committed jurisdictional error by refusing to call for the relevant records or the report by the Circle Officer by wrongly assuming that the Circle Officer was not a Court which is found to be contradictory to the provisions of Regulation 140(b) of the Assam Land and Revenue Regulation, 1886. Therefore, this Court is inclined to set aside the impugned order dated 15.03.2013 as well as the order dated 26.03.2013 passed by the learned Court of Munsiff No.2, Kamrup Metropolitan, Guwahati in Title Suit No.146/04. 10. It would be open to the learned Trial Court to pass fresh order either by invoking the provisions of Order XIII Rule 10 or Order XVI Rule 6 and 7 CPC under section 151 CPC to call for the report as prayed for by the petitioner by petitions to that effect. Both the said petitions are restored to file. 11. In view of the above, this revision stands allowed to the extent as indicated above. The parties are left to bear their own cost. Page 4 of 5
12. The petitioner is duly represented by her learned counsel, shall appear before the Court of learned Munsiff No.2, Kamrup Metropolitan, Guwahati on 30.11.2017 and by producing a certified copy of the order, shall seek further instructions from the said learned Court. JUDGE Parimita Page 5 of 5