' SARDAR MUHAMMAD RAZA, J.---Baqar son of Sher Muhammad, after leave of Court, has filed present Civil Appeals Nos.602 and 603 of 1998 against two separate judgments, both, dated 13-6- 1996, passed by the Lahore High Court in Regular Second Appeal No,37 of 1985 and Civil Revision No,1006 of 1986.
2. As the facts narrated hereinafter would disclose, that common questions of law and fact arising from one and the same litigation are involved, both the appeals shall be decided through this single judgment.
3. One Sher Muhammad owned landed property measuring 627 Kanals, 17 Marlas in village Basirpur, Tehsil Depalpur, now District Okara. Baqar and Rehmat etc. Alongwith Mst. Roshan Bibi, on 28-11-1960, filed a suit against their brothers Muhammad Khalil and Muhammad Rafique seeking declaration of title etc. Qua 1/2 Sharai share in the property. On 10-12-1963, the suit was decreed on the basis of compromise about which the parties had recorded their statements in Court. 14-1/2 acres of land was decreed in favour of the plaintiffs. It transpired later, that the decree sheet, dated 10-12-1963 had not been drawn in accordance with the judgment and certain Khasras not belonging to Sher Muhammad got included therein. The plaintiffs filed a civil suit for the correction of decree-sheet which on 30-10-1969 was dismissed by the learned District Judge holding that the clerical or arithmetic mistake occurring in the decree sheet could be rectified under section 152, C.P.C. And that a civil suit filed in this behalf was not competent.
4. Accordingly, an application under section 152, C.P.C. Was filed on 6-4-1971. The same was accepted on 23-4-1973 and again on the statement of the parties and in view of material on record, the decree sheet was amended. This also did not suit the decree-holders, who, after some side litigation, again filed a second application under section 152, C.P.C. On 11-12-1985, which was dismissed. Present Appeal No,603 of 1998 arises in connection therewith.
5. During this process Baqar etc., the decree-holders, had obtained the possession of some property on the spot which is neither disputed nor contested with the exception of Khasra No,77/13/3, which during execution proceedings had been given in possession of the decree- holders. On 30-5-1973, the respondents Muhammad Rafique etc. Filed a suit for possession of Khasra No,77/13/2 (now 77/13/3 after consolidation) on the ground that this Khasra number was never surrendered by the respondents in their statements in compromise, dated 10-12-1963, nor was it included in the original decree-sheet, dated 10-12-1963 nor in the corrected decree sheet, dated 23-4-1973 and thus, the possession thereof was unlawfully obtained by the decree-holders.
This suit was decreed by the Trial Court on 24-7-1983 against which Regular First Appeal No,121-A also failed on 26-1-1985. The Regular Second Appeal also met the same fate before the High Court and hence Appeal No,602 of 1998 is filed before this Court.
6. We have gone through the original claim of the present appellant initiated on 28-11-1960. We have also thoroughly examined the compromise and the statements of the parties recorded on 10- 12-1963. It is a matter of record that Khasra No,77/13/2(77/13/3) was never included in the statements of the parties recorded during compromise, dated 10-12-1963. It was never mentioned in the original decree sheet, dated 10-12-1963. As stated earlier, the decree sheet, dated 10-12-1963 was amended under section 152, C.P.C. Subsequently on 23-4-1973. A close perusal of this document as well would indicate that the Khasra in dispute was never mentioned in the amended decree sheet either. The claim of the decree-holders is that when due to the mentioning of incorrect Khasra numbers not belonging to the predecessor of the parties, the actual area fell short of decreed one, they were entitled for the substitution of Khasra No,77/13/2 (77/13/3). According to them, the original decree required to be amended to the extent of inclusion of the aforesaid Khasra as well and the suit for possession filed by the respondents deserved to be dismissed.
7. On the other hand, the claim of the respondents is that Khasra which never had been the subject-matter of compromise, that of the original decree-sheet, that of the subsequent amended decree sheet, the appellants could never have been compensated, through an amendment under section 152, C.P.C. And the same was rightly dismissed. Further, that without the decree having been granted qua the said Khasra numbers, the possession thereof could not be obtained by the decree-holders during execution proceedings and thus, their suit for possession was rightly decreed by all forums.
8. The one and the only point that calls for determination is as to whether the decree could be amended through the insertion of Khasra No,77/12/2(77/13/3). If this is possible and if Appeal No,602 of 1998 is accepted to that effect, the taking over of possession thereof would be justified. In case no amendment of decree sheet to the above .Effect is permissible; the decree for possession thereof obtained by the respondents would be valid.
9. Section 152 of the C.P.C. Is reproduced for reference;-- ",152. Amendment of judgments, decrees or orders.-Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties."
The wording of the section distinctly refer to mistakes which are clerical, arithmetical or errors arising from accidental slip or omission. We have simply to determine, as to whether the non- inclusion of Khasra No,77/13/2(77/13/3) in the original decree sheet, dated 10-12-1963 as well as the subsequent decree sheet, dated 23-4-1973 was a result of either arithmetic mistake or an error arising from accidental slip or omission.
10. To resolve this controversy, we would have to revert back to the very act of the parties that entailed upon a compromise, dated 10-12-1963. The aforesaid statements on record do not anywhere contain Khasra No,77/13/2 (77/13/3). It is not even contained in the amended decree sheet, dated 23-4-1973. The first decree sheet might have been the result of misdescription of the property but the second decree sheet, dated 23-4-1973 was certainly prepared through positive application of mind and through further statements of the parties and thus, it would not be difficult to conclude as to what had been the mind of the parties while amending, on 23-4-1973, the original decree sheet, dated 10-12-1963. In spite of the fact that some dispute had arisen qua the Khasras in dispute and in spite of the fact that a lengthy process of amendment had to be gone through by the parties, Khasra No,77/13/2 (77/13/3) was still not mentioned in the amended decree sheet as well. Here we tend to agree with the learned counsel for the respondents that they, at no stage of litigation, intended or agreed to surrender Khasra No,77/13/2 (77/13/3) in favour of the plaintiffs/decree-holders and further that they would never surrender the same even otherwise because their stance qua this Khasra was so genuine that a brother of theirs lost his life due to murder in an effort to retrieve the possession thereof which was unlawfully granted to the decree- holders. The question is, as to whether a decree sheet, on ground other than mentioned in section 152, C.P.C., can be amended for the reasons that some Khasra or property should have been included in the decree because of the entitlement claimed by a party.
11. Wadsworth, J. In Koka Adinarayana Rao Naidu (AIR 1940 Madras 538) has determined with reference to scope of section 152, C.P.C. That a Court cannot rectify decree because it was wrong or unfair or that the parties did not realize their rights. Power to rectify decree was held limited to arithmetic mistakes or errors arising from accidental slips or omissions. In the case in hand, we are convinced that the non-inclusion of Khasra in dispute was neither arithmetic mistake nor an error arising from accidental slip or omission. It was through positive application of mind that the respondents did not want to surrender this Khasra, regardless of the fact whether in the circumstances of the case, it should or should not have been surrendered.
12. There is a lot of difference between an arithmetic mistake or an error arising from accidental slip or omission, on the one hand and an omission arising out of contentious nature of dispute between the parties. Whenever the correction under section 152, C.P.C. Is referable to a point which is contentious in nature between the parties, the provisions of section 152, C.P.C. Cannot be invoked. A similar question of dispute on a usufructuary mortgage right was involved in case of Ramasan Rai (AIR 1946 Patna 190) where resort was made to section 152, C.P.C. For the correction etc. Beevor, J.
Held that when questions involved were of contentious nature, no resort could be made to the provisions of section 152, C.P.C.
13. When a decision depends upon consideration of arguable questions of law, the construction of documents, the determination of rights in view of record, such determination cannot be made by a Court exercising jurisdiction under section 152, C.P.C. An error apparent on the face of record or an accidental slip or omission should be an error apparent on the first sight and omission should be an accidental slip or omission made by the Court. Such an error, for its discovery, should not depend on elaborate arguments on questions of facts or law. This view also was taken by Indian Supreme Court in Master Construction Co. (P.) Ltd., (AIR 1966 Supreme Court 1047). Every mistake made by a Court cannot be assumed to be on account of accidental slip. May be it is an omission because the Court by positive application of mind intended to omit the same. If this be the nature of omission or commission, it can never be dubbed as accidental or a mistake apparent on the face of record. When this principle of law is applied to the instant case, we feel no difficulty in realizing that Khasra No,77/13/2 (77/13/3) got omitted to be mentioned in the decree sheets not because of any error or accidental slip or omission, not by a mistake apparent on the face of record but by positive application of mind for the reason that the parties themselves intended and acted to do the same. Such omission cannot now be covered or rectified by invoking provisions of section 152, C.P.C.
14. There being no merit in the case of the .Appellant, both the appeals are hereby dismissed. Our this order shall not been an impediment in the way of the parties in settling the dispute amicably in future and in making equitable adjustment, if better sense prevails.