SRIHARI (DEAD) THROUGH LR. SMT. CH. NIVEDITHA REDDYversusSYED MAQDOOM SHAH & ORS.

                         [2014] 7 S.C.R. 864


A     SRIHARI (DEAD) THROUGH LR. SMT. CH. NIVEDITHA
                            REDDY
                               v.
               SYED MAQDOOM SHAH & ORS.
             (Civil Appel Nos. 2352-2354 of 2008) ·
B
                       SEPTEMBER 16, 2014
           [SUDHANSU JYOTI MUKHOPADHAYA AND
                  PRAFULLA C. PANT, JJ.)

C       Code of Civil Procedure, 1908 - s. 152 - Amendment of
  judgments, decrees or orders - Interpretation of s. 152 - Held:
   Section 152 is meant for correcting the clerical or arithmetical
  mistakes in judgments, decrees or orders or errors arising
   therein from any accidental slip or omission - Power u/s. 152
D is neither similar to power of review nor can be compared with
  the power of review - Corrections contemplated under the
  section are of correcting only accidental omissions or
  mistakes - Omission sought to be corrected which goes to the
  merits of the case is beyond the scope of s. 152 - On facts,
E the High Court rightly allowed the applications by the parties
  concerned holding that the preliminary decree be amended
  allotting and dividing the shares amongst them, as the suit
  already stood decreed for partition.

         Dismissing the appeals, the Court
F
       HELD: 1.1. From the language of Section 152 of the
  Code of Civil Procedure and also from the interpretation,
  it is clear that the section is meant for correcting the
  clerical or arithmetical mistakes in judgments, decrees or
G orders or errors arising therein from any accidental ·slip
  or omission. The powers u/s. 152 are neither to be
  equated with the power of review nor can be said to be
  akin to review or even said to clothe the Court under
  guise of invoking after the result of the judgment earlier .
H                              864
 SRIHARI (DEAD) THROUGH LR. SMT. CH. NIVEDITHAREDDY v. 865
                  SYED MAQDOOM SHAH

  rendered. The corrections contemplated under the A
  section are of correcting only accidental omissions or
 mistakes and not all omissions and mistakes. The
  omission sought to be corrected which goes to the merits
  of the case is beyond the scope of Section 152. The
  expression accidental slip or omission has been
                                                           8
  explained as an error due to a careless mistake or
; omission unintentionally made. [Para 12, 13] [874-E-H;
  875-C]

     1.2. Had the appellate court, not decreed the suit with
discussion of evidence after rejecting the plea of the C
defendant No.12 as to his claim of ownership, and had
the defendants 1 to 11 not pleaded for separation of their
shares with admission of share of the plaintiff as decreed
by the appellate court, it could have been said that the
High Court erred in declaring shares of the plaintiff or the D
defendants by resorting to Section 152. But since there
is a clear finding of shares of the parties in the judgment,
as such by. clarifying the decree by the impugned order,
the High Court committed no mistake of law. Sub-rule (2)
of r.18 of Or.XX clearly indicates that in the preliminary E
decree not only the right of the plaintiff but rights and
interests of others can also be declared. [Para 20] [877-
D-F; 878-8, C]

      1.3. The basis of provision of Section 152 is found
 on the maxim 'actus curiae neminem gravabit' i.e. an act F
 of Court shall prejudice no man. As such an unintentional
 mistake of the Court which may prejudice the cause of
 any party must be rectified. However, this does not mean
 that the Court is allowed to go into the merits of the case
 to alter or add to the terms of the original decree or to give G
 a finding which does not exist in the body of the
 judgment sought to be corrected. [Para 22] [878-E-G]

     State of Punjab vs. Darshan Singh 2003 (4) Suppl. SCR
 1042:(2004) 1 SCC 328; Bijay Kumar Saraogi vs. State of H
    866      SUPREME COURT REPORTS                 [2014] 7 S.C.R.


A   Jharkhand (2005) 7 sec 748; U.P.SRTC VS. lmtiaz Hussain
    2005 (5) Suppl. SCR 725:(2006) 1 SCC 380 - relied on.

        Shub Karan Bubna alias Shub Karan vs. Sita Saran
    Bubna and Others 2009 (14) SCR 40:(2009) 9 SCC 689;
    Master Construction Co. (P) Ltd. V State of Orissa and Anr.
B   AIR 1966 SC 1047 - referred to.

                         Case Law Reference:

      2003 (4) Suppl. SCR 1042       Relied on          Para 12

c     (2005) 1 sec 148               Relied on          Para 12

      AIR 1966 SC 1047               Referred to        Para 13

      2009 (14) SCR 40               Referred to        Para 21

      2005 (5) Suppl. SCR 725        Relied on          Para 22
D
        CIVIL APPELLATE JURISDICTION : Civil Appeal
    No.2352-2354 of 2008

         From the Judgment and Order dated 21-04-2005 of the
E   High Court of Judicature, Andhra Pradesh at Hyderabad in
    A.S.M.P. No. 11880 of 2004 and 1098 and 1099 of 2005 in
    A.S. No. 734 of 1991.

        K. Raghavacharuvlyu, J. Prabhakar, Kailash Pandey,
    Arunima Pal, Ranjeet Singh, Anil Kumar Tandale for the
F   Appellant.

       Guru Krishnakumar, Mushtaq Ahmad, Rajesh Prasad
  Singh, M. Srinivas R. Rao, J. Govardhan Reddy, Sudha Gupta,
  M.Z. Chaudhary, Nilofar Khan, Chandra Shekhar Suman, Uttara
G Babbar, Prasanna for the Respondents.

          The Judgment of the Court was delivered by

         PRAFULLA C.PANT, J. 1. All these three appeals are
    directed against the common judgment and order dated
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SRIHARI (DEAD) THROUGH LR. SMT. CH. NIVEDITHAREDDYv. 867
      SYED MAQDOOM SHAH [PRAFULLA C. PANT, J.]

21.4.2005 passed by the High Court of Andhra Pradesh in             A
A.S.M.P. No.11880 of 2004, A.S.M.P. No. 1098 of 2005 and
A.S.M.P. No.1099 of 2005 (moved in A.S. No. 734 of 1991)
whereby the High Court exercising powers under Section 152
of the Code of Civil Procedure, 1908 (hereinafter referred as
'the Code'), has allowed the applications, and directed that the    B
preliminary decree passed in A.S. ~o. 734 of 1991, be
amended allotting and dividing half share of Syed Makdoom
Shah (defendant No.11) and Syed Hussain Shah in the suit
schedule property in addition to 1/4th share of legal heirs of
plaintiff Khadar Nawaz Khan (since dead) and 1/4th share of
the legal heirs of defendant Feroz Khan (died on 22.1.1978).        C

     2. Brief facts of the case are that one Qamaruddin Ali Khan
was original owner and pattadar of agricultural land bearing
S.Nos: 41 to 43 situated in Village Kokapet. The land was
purchased by Khadar Hussain Khan through a registered sale          D
deed, who died in the year 1942. Khadar Hussain Khan died
issueless as an unmarried person, leaving behind his real sister
Shahzadi Bee and two step brothers namely Feroz Khan and
Khadar Nawaz Khan (plaintiff). Khadar Hussain Khan remained
in possession and enjoyed the property in suit as absolute          E
owner till his death in the year 1942 (year 1352 Fasli). It is
pleaded by the plaintiff that after death of Khadar Hussain Khan
the property was succeeded by his real sister Shahzadi Bee,
and two step brothers namely Feroz Khan (died on 22.1.1978)
and Khadar Nawaz Khan (plaintiff). On the death of Feroz Khan
                                                                    F
in the year 1978, his share is inherited by his widow Habib
Khatoon (Defendant No.1) and children Main Khatoon
(Defendant No.2), Zehra Khatoon (Defendant No.3), Tehera
Khatoon (Defendant No-.4), Sughra Sameena Khatoon
(Defendant No.5), Kaneez Fatima Khatoon (Defendant No.6),           G
Butool Khatoon (Defendant No.7), Aysha Khatoon (Defendant
No.8) and Khaderalikhan (Defendant No.9). A suit (O.S.No. 471
of 1987) was instituted by plaintiff Khadar Nawaz Khan for
partition of his 1/4th share from plot S. Nos. 41 to 43 measuring
 area Ac.49.24 gts situated in aforesaid village Kokapet. It is
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    868      SUPREME COURT REPORTS                    [2014] 7 S.C.R.

A further pleaded by the plaintiff that after death of Feroz Khan,
  plaintiff and defendant nos. 1 to 11 are in joint possession of
  the property. It is alleged by him that defendant no. 12 (Srihari)
  had no concern with the property in suit but he is trying to claim
  right over the property on the basis of some document said to
B have been executed by one of the co-sharers. Therefore the
  pl13intiff felt that he is unable to enjoy his property, in joint
  possession with the original co-sharers as such he filed suit for
  partition of his 1/4th share.

         3. Defendant Nos. 1 to 9 and defendant No. 11 in
C   substance admitted the case of the plaintiff.(Defendant No.10
    during the pendency of proceeding has died and his heirs are
    on record.) Defendant No. 11 filed his written statement and
    defendant Nos.1 to 9 adopted the same. It is admitted to
    defendant Nos.1 to 9 and defendant no. 11 that after the death
D   of Khadar Hussain Khan, the property in suit devolved and was
    inherited by his real sister Shahzadi Bee and two step brothers
    namely Feroz Khan and Khadar Nawaz Khan. However,
    mutation was done in the name of Feroz Khan being elder male
    member in the family, and names of Shahzadi Bee and Khadar
E   Nawaz Khan were shown 'shikmi'. It is further pleaded by the
    aforesaid defendants that on the death of Feroz Khan on
    22.1.1978, defendant Nos. 1 to 9 (i.e. widow and children of
    the deceased) inherited his share. Defendant No.11 is the son
    of Shahzadi Bee (real sister of Khadar Hussain Khan). It is also
F   admitted by the aforesaid defendants that defendant No.12
    Srihari had no concern with the property in suit. It is further
    pleaded by aforesaid defendants (Nos.1 to 11) that the land in
    question is to be partitioned between the plaintiffs and the
    defendants.
G        4. Defendant No.12 Srihari, filed his separate written
    statement and contested the suit. Denying the allegations made
    in the plaint, he pleaded that the suit property is not joint family
    property of plaintiff and the defendant Nos. 1 to 11. He further
    pleaded that the plaintiff has filed the suit in collusion with
H
SRIHARI (DEAD) THROUGH LR. SMT CH. NIVEDITHAREDDYv. 869
      SYED MAQDOOM SHAH [PRAFULLA C. PANT, J.]

defendant Nos.1 to 11. However, defendant no.12 admitted that A
the property in suit originally belonged to Qamaruddin Ali Khan
which was purchased by Khadar Hussain Khan through
registered sale deed, and for valid consideration. He (defendant
No.12) pleaded in his written statement that on the death of
Khadar Hussain Khan, his step brother Feroz Khan (husband
of Habib Khatoon defendant No.1 and father of defendant nos.
                                                                   8
2 to 9) inherited the property by virtue of Succession Certificate
 No. 812 of 1357 Fasli issued by Director of Settlements. It is
 pleaded by defendant no.12 that Feroz Khan perfected his title
 over the land in suit being in exclusive possession as an
 absolute owner in the year 1965-66. It is pointed out thatthere C
 had been some litigation under Section 145 of Code of Criminal
 Procedure between Firoz Khan and one Krishna Murthy but the
 same was closed. It is also pleaded by defendant no.12 that
 Feroz Khan thereafter instituted a suit (O.S. No. 31 of 1966) in
 the Court of lllrd Additional Judge, City Civil Court, Hyderabad D
 against Krishna Murthy for injunction which was renumbered as
 O.S.No. 512 of 1973 in the Court of Vth Additional Judge, City
 Civil Court, Hyderabad. In the said suit Feroz Khan (husband
 of defendant No.1 and father of defendant nos. 2 to 9) entered
 into settlement, and the entire land of S.Nos. 42 and 43 and E
 portion of S.41 vested with the defendant no.12. It is further
 pleaded that in pursuance of said settlement, defendant no.12
 was impleaded as second plaintiff with Feroz Khan (plaintiff no.1
 of Suit No. 512of1973). Finally, Feroz Khan who was in need
 of money offered to sell land measuring Ac.18.25 gts of F
 S.No.43 and executed agreement of sale on 23.3.1973. Said
 suit No. 512of1973 was disposed of by IVth Additional Judge,
 City Civil Court, Hyderabad holding that defendant No.12 (who
 was plaintiff No.2 in suit No. 512 of 1973) and Feroz Khan
  (plaintiff No.1 of said suit) were the owners of the land. G
 Aggrieved by said judgment and decree dated 30.9.1976,
  Krishna Murthy (defendant of said case) filed an appeal No.
  CCA 142 of 1976 in the High Court. The legal proceedings
  referred above were finally decided in favour of the vendor. In
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    870       SUPREME COURT REPORTS                     [2014] 7 S.C.R.


A the second round of litigation, defendant No.12 filed O.S.No:164
  of 1981 before Vth Additional Judge, City Civil Court,
  Hyderabad for permanent injunction restraining defendant nos.
  1 to 9, and present plaintiff from selling or otherwise disposing
  of the land covered by S.43 of Kokapet Village, except to the
  defendant no.12 (who was plaintiff of Suit No. 164 of 1981 ).
8 Present defendant nos.1 to 9 contested Suit No. 164 of 1981 .
  and the same was decreed in favour of present defendant
  no.12, and the defendants of said suit were restrained from
  transferring the suit land to third party. Aggrieved by the said
  judgment and decree, present defendant nos. 1 to 9 filed appeal
C bearing No. AS 66 of 1984 before Chief Judge, City Civil
  Court, Hyderabad which was dismissed by the said Court on
  27.11.1984. The appeal filed by Krishna Murthy bearing CCCA
  No. 142 of 1976 was also dismissed by the High Court on
   11.12.1985. Thereafter, defendant No. 12 filed Original Suit No.
D 150 of 1986 for specific performance of agreement of sale
  dated 23.3.1973 in tespect of land Ac.18.25 gts covered by
  S.No.43 of Village Kokapet. In pursuance to the order in said
  case possession of the land in q1,1estion was jointly delivered
  to defendant no. 12 and defendant nos. 1 to 9 by the Bailiff and
E the suit was decreed by M.M. West on 2.11.1987 directing the
  defendant nos. 1 to 9 to execute sale deed in favour of
  defendant No.12. Present plaintiff Khadar Nawaz Khan never
  attempted to get impleaded in the aforesaid litigations. It is
  alleged by the defendant no.12 that after colluding with
F defendant no. 1 to defendant no.9, plaintiff has filed the present
  suit for partition to deprive defendant no.12 of his rights.

       5. The trial court on the basis of the pleadings of the parties
  framed as many as eight issues, and after recording evidence
  and hearing the parties gave the finding that Feroz Khan had
G perfected title over the land in suit, and the plaintiff is not entitled
  to partition. On the issue of limitation, the trial court held that
  the suit is barred by limitation. With the above findings trial court
  (Additional Subordinate Judge/R.R. District) dismissed the suit
  vide judgment and decree dated 16.10.1990.
H
SRIHARI (DEAD) THROUGH LR SMT. CH. NIVEDITHAREDDYv.      871
     SYED MAQDOOM SHAH [PRAFULLA C. PANT, J.]

    6. Aggrieved by the judgment and decree dated. A
16.10.1990 in O.S. No. 471of1987, the plaintiff Khadar Nawaz
Khan filed an appeal before the High Court of Judicature at
Ardhra Pradesh which was registered as appeal No. 734 of
1991.
                                                                B
    7. After hearing the parties, the Appellate Court re-
appreciated the evidence and came to the conclusion and
observed as under:

           "It is not disputed that the original owner of the
    property is one Qamaruddin Ali Khan .and from him, C
    Khader Hussain Khan purchased the same. The appellant
    late Feroz Khan and Shahzadi Bee are the step brother
    and sister of Khader Hussain Khan. It is also not disputed
    that the properties are matrooka properties. It is also not
    disputed that Khader Hussain Khan died as a bachelor · D
    leaving behind him Shahzadi Bee, his sister and step
    brothers, Feroz Khan and the appellant Khader Nawaz
    Khan. After the death of Khader Hussain Khan, the only
    heirs are late Feroz Khan and Khadar Nawaz Khan i.e. the
    appellant and Shahazadi Bee. It is also not disputed that E
    the suit properties being matrooka properties, under
    Muslim Laws, the property devolves on all the three heirs
    of Khader Hussain Khan viz., Shahzadi Bee, Feroz Khan
    and Khadar Nawaz Khan. When once the properties
    devolved on these three persons, who are the successors F
    of Khader Hussain Khan, they are entitled to claim from
    out of the shares in accordance with Muslim Law and they
    are co-owners of the property. It is not disputed that when
    a co-heir is found to be in possession of the properties, it
    is presumed to be on behalf of the other co-owners and ·
    joint title and the possession of one co-heir is to be G
    considered in Law as possession of all the co-heirs. The
    co-heir in possession cannot render his possession
    adverse to the other co-heirs not in possession. Therefore,
    on the death of Khader Hussain Khan, late Feroz Khan,
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    872      SUPREME COURT REPORTS                    [2014] 7 S.C.R.

A         Khadar Nawaz Khan, Khadar Nawaz Khan the appellant,
          Shahzadi Bee, who succeeded as co-heirs, are entitled
          to joint possession and even assuming that Feroz Khan
          was in possession of the property, his possession is on
          behalf of Shahzadi Bee and Khadar Nawaz Khan, who are
B         the co-heirs/co-owners along with him. At this stage, it is
          relevant to refer Ex.A-2 which was relied on in the
          Judgment in CCCA No.142of1976 filed by Krishna Murthy
          against late Feroz Khan and the 1st respondent. In this
          appeal, a reference was made to the suc·cession
c         certificate granted to late Feroz Khan and Shahzadi Bee,
          the appellant i.e. Khadar Nawaz Khan.

          The relevant portion has been marked as Ex.A-2 in the
          present suit. It reads: "Letter No. 745 dated 7th Tir 1356
          Fasli shows that the succession for three survey numbers
D         was sanctioned in the name of the plaintiff. His younger
          brother Khadar Nawaz Khan and sister Shahzadi Bee are
          shown as co-sharers (Shikami)". From a reading of Ex.A-
          2, it is clear that the possession obtained under Muslim
          Law was recognized by granting succession certificate in
E         favour of all the three co-heirs.

          The learned Judge, forgetting the legal position obtained
          under the Muslim Law and relying on" various documents,
          held that late Feroz Khan was the exclusive possessor and
F         pattadar of the suit land. The documents on which he relied
          are Ex.B-7, Pahani Patrika for the year 1970-71, Ex.B-23
          Khasra Pahani for the year 1954-55, Ex.B-24 certified copy
          of Faisal Patti, Ex.B-25 certified copy of Pahani Pathrika
          and Ex.B-26 to B-26 certified copies of Pahani Pathrikas.
          On the basis of various entries made in the revenue
G
          records, the learned Judge held that late Feroz Khan was
          in exclusive possession of the property. It is true that in all
          the entries in the revenue records, late Feroz Khan and his
          legal representatives and the respondents were shown as
          the possessors of the land. However, they are only entries
H
 SRIHARI (DEAD) THROUGH LR. SMT CH. NIVEDITHA REDDY v. 873
       SYED MAQDOOM SHAH [PRAFULLA C. PANT, J.]

    made in the revenue records. In other words, these are the A
    entries relating· to mutation proceedings effected on the
    death of the original owner and also on the death of Feroz
    Khan and after purchase by the defendant no.12".

      8. After further discussing the evidence on record, the
                                                                    8
Appellate Court held that merely for the reason that the plaintiff
did not raise any objection and did not participate in various
proceedings, it cannot be said that he stood ousted from the
co-ownership in the property inherited from Khader Hussain
Khan. The Appellate Court further held that in fact plaintiff
appears to have no knowledge of the proceedings in which he C
was not a party. It further observed that the joint possession
over the land in suit of other co-sharers was also with the
plaintiff. The Appellate Court after holding that the property was
jointly owned by the parties decreed the suit for partition vide
its judgment and decree dated 25.1.1999.                           .D

     9. It appears that three applications viz. A.S.M.P.
No.11880 of 2004, A.S.M.P. No. 1098 of 2005 and A.S.M.P.
No.1099 of 2005 were moved on behalf of the defendants for
declaration of their shares in the preliminary decree passed in E
A.S No. 734 of 1991 arisen out of Suit No.471 of 1987. The
High Court by exercising powers contained in Section 151, and
Section 152 read with Section 153 of the Code, disposed of
these applications vide order dated 21.4.2005 which is
challenged before us. The High Court by its order dated
21.4.2005 allowed the above mentioned applications and .F
directed that half share belonging to Syed Maqdoom Shah and
Syed Hussain Shah (heirs of Shahzadi Bee), 1/4th share of
Basheer Khatoon, Quadir Hussain Khan, Rabia Khan, Razia
Moiuddin, Dr. Masood Nawaz and Mohammad Yousuf Ali Khan
(heirs of Khadar Nawaz Khan), and 1/4th share of Habib G
Khatoon, Moin Khatoon, Zehra Khatoon, Tehera Khatoon,
Sughra Sameena Khatoon, Kaneez Fatima Khatoon, Butool
Khatoon, Aysha Khatoon and Khaderalikhan (heirs of Feroz
Khan) be partitioned.
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    874       SUPREME COURT REPORTS                  [2014] 7 S.C.R.


A       10. We have heard learned counsel for the parties and
    perused the papers on record.

       11. On behalf of defendant No.12 Srihari (appellant before
  us), it is argued that the impugned order passed by the High
B Court is beyond the scope of Section 152 (read with Section
  151 and Section 153) of the Code. In support of his argument
  he relied in the case of State of Punjab vs. Darshan Singh AIR
  2003 SC 4179: (2004) 1 SCC 328 and Bijay Kumar Saraogi
  vs. State of Jharkhand (2005) 7 SCC 748. Before further
C discussion, we think just and proper to quote the relevant
  provision of law under which impugned order appears to have
  been passed by the High Court. Section 152 of Code of Civil
  Procedure, 1908 reads as under:

                "Amendment of judgments, decrees or orders.
D         - 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."
E       12. From the language of Section 152 of the Code, as
  quoted above, and also from the interpretation of the section
  given in the case of State of Punjab vs. Darshan Singh (supra),
  the section is meant for correcting the clerical or arithmetical
  mistakes in judgments, decrees or orders or errors arising
F therein from any accidental slip or omission. It is true that the
  powers under Section 152 -0f the Code are neither to be
  equated with the power of review nor can be said to be akin to
  review or even said to clothe the Court under guise of invoking
  after the result of the judgment earlier rendered. The corrections
G contemplated under the section are of correcting only accidental
  omissions or mistakes and not all omissions and mistakes. The
  omission sought to be corrected which goes to the merits of
  the case is beyond the scope of Section 152. In Bijay Kumar
  Saraogi (supra) also it has been reiterated that Section 152
H
 SRIHARI (DEAD) THROUGH LR. SMI CH. NIVEDITHA REDDY v. 875
       SYED MAQDOOM SHAH [PRAFULLA C. PANT, J.]
 of the Code can be invoked for the limited purpose of correcting       A
 clerical errors or arithmetical mistakes in judgments or
 accidental omissions.
       13. Now we have to examine whether by the impugned
. order, the High Court has only corrected the clerical,
· arithmetical or accidental omission in the decree passed or not.      B
  To appreciate the same, first we think it necessary to mention
  as to what the word "expression accidental omission" means.
  In Master Construction Co. (P) Ltd. Vs. State of Orissa and
  Another AIR 1966 SC 1047, expression - accidental slip or
  omission has been explained as an error due to a careless             c
  mistake or omission unintentionally made. It is further observed
  in the said case that there is another qualification. namely, such
  an error shall be apparent on the face of the record, that is to
  say, it is not an error which depends for its discovery, elaborate
  arguments on questions of fact or law.                                D
      14. Whether the High Court has acted within the scope of
 Section 152 of the Code or not, we have to see as to what were
 the pleadings of parties, what was tbe decree passed, and what
 was the correction made in it.     /
                                                                        E
       15. The relevant part in paragraph 12 of the plaint of
 Original Suit No. 471 of 1987 filed by Khader Nawaz Khan for
 partition, reads as under:
      "Hence it is prayed that, kindly the suit of the plaintiff be
      decreed as follows:                                               F
       a)    A preliminary decree be passed declaring the
             plaintiff is entitled for 1/4th share in the matrooka
             properties i.e. land Survey Nos. 41, 42 and 43
             admeasuring Ac 49-24 guntas situated at Kokapet            G
             Village, Rajendranagar Revenue Mandal, RR
             District and a Commissioner be appointed for
             partition be delivered to the plaintiff to the extent of
             his share, if due to any legal hitch the court finds
             that the property is not partition able then the
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    876         SUPREME COURT REPORTS                    [2014] 7 S.C.R.

                  property be put in auction and sale proceeds be
A
                  paid to the plaintiff to the extent of his 1/4th share
                  in the interest of justice.
           b)     Cost of the suit to be awarded;
           c)     'Any other relief or reliefs which the plaintiff is legally
B
                  entitled to the same".
         16. Defendant no. 11 Syed Maqdoom Shah (respondent
    No.1 in these appeals) at the end of para 12 of his written
    statement, has pleaded and !)rayed as under:
c         "Hence it is prayed that the suit of plaintiff may be decreed
          along with the share of defendant no.11 as shown under
          para no.6. Further the amount of Rs.2,082/- spent by the
          defendant no. 11 during last 28 years as shown above at
          para no. 7 and it may be decreed from the share of the
D         plaintiff and other defendants or otherwise give 4 acres of
          land in lieu of Rs.2, 182/- from the share of the plaintiff and
          other defendants in addition to his own share to meet the
          ends of justice".
E        Para 6 of which reference is given in above quoted para
    as pleaded by defendant no.11 reads as under:
          "The shares ascertained as given by the plaintiff under
          para (6) are correct".
F         17. In para 6 of the plaint, shares are mentioned as under:
          " 6) That, the shares of the parties are as follows:
          The defendants No. 10 and 11 are entitled for half share
          to the extent of their mother Shahzadi Bee.
G         The plaintiff is entitled for 1/4th share in the entire property.
          The ~efendant no. 1 to 9 are entitled for 1/4th share only".
        18. Now we re-produce the last sentence of judgment and
    order passed by the Appellate Court - High Court of Andhra
H
SRIHARI {DEAD) THROUGH LR. SMT. CH. NIVEDITHA REDDY v. 877
     SYED MAQDOOM SHAH [PRAFULLA C. PANT, J.]

Pradesh in first appeal A.S. No. 734 of 1991 whereby suit for       A
partition is decreed -
    "The suit is accordingly decreed and appeal is allowed
    with costs".
    19. By the impugned order dated 21.4.2005 exercising            B
powers under Section 152 of the Code, the First Appellate
Court has now directed as_under:
    "Accordingly, for the reasons stated above, these
    applications are allowed and the decree in A.S. No. 734
    of 1991 dated 25.1.1996 is directed to be amended               c
    allotting and dividing half share' in the suit schedule
    property to the petitioners 1 and 2, one-fourth share to
    respondents 1 to 6 herein and one-fourth share to
    respondents 7 to 15 herein. There shall be no order as to
    costs".                                                         D
      20. Had the appellate court, not decreed the suit with
discussion of evidence after rejecting the plea of the defendant
No.12 as to his claim of ownership, and had the defendants 1
to 11 not pleaded for separation of their shares with admission
of share of the plaintiff as decreed by the Appellate Court , it    E
could have been said that the High Court erred in declaring
shares of the plaintiff or the defendants by resorting to Section
152 of the Code. But in the present case since there is a clear
finding of shares of the parties in the judgment and order dated
25.1.1996, as such by clarifying the decree by the impugned         F
order. in our opinion the High Court has committed no mistake
of law. In this connection, we would like to re-produce sub-rule
(2) of Rule 18 of Order XX of the Code, which reads as under:
    "18. Decree in suit for partition of property or separate
                                                                    G
    possession of a share therein --Where the Court passes
    a decree for the partition of property or for the separate
    possession of a share therein, then,--
    xxx    xxx                    xxx              xxx
                                                                    H
    878       SUPREME COURT REPORTS                    [2014) 7 S.C.R.


A          (2) if and in so far as such decree relates to any other
          immovable property or to movable property, the Court
          may, if the partition or separation cannot be conveniently
          made without further inquiry, pass a preliminary decree
          declaring the rights of the several parties, interested in the
B         property and giving such further directions as may be
          required".

         Above quoted sub-rule clearly indicates that in the
    preliminary decree not only the right of the plaintiff but rights and
    interests of others can also be declared.
c
         21. At the end, we would also like to refer the case of Shub
    Karan Bubna alias Shub Karan vs. Sita Saran Bubna and
    Others (2009) 9 sec 689 wherein it is explained that
    "partition" is a redistribution or adjustment of pre-existing rights,
o   amqng co-owners/coparceners, resulting in a division of land
    or other properties jointly held by them into different lots or
    portions and delivery thereof to the respective allottees. The
    effect of such division is that the joint ownership is terminated
    and the respective shares vest in them in severalty.

E        22. This Court has earlier also reiterated in U.P.SRTC vs.
    lmtiaz Hussain (2006) 1 SCC 380 has reiterated that the basis
    of provision of Section 152 of the Gode is found on the maxim
    'actus curiae neminem gravabit' i.e. an act of Court shall
    prejudice no man. As such an unintentional mistake of the Court
F   which may prejudice the cause of any party must be rectified.
    However, this does not mean that the Court is allowed to go
    into the merits of the case to alter or add to the terms of the
    original decree or to give a finding which does not exist in the
     body of the judgment sought to be corrected.
G
         23. For the reasons as discussed above, we do not find
    force in these appeals which are liable to be dismissed.
    Accordingly, the appeals are dismissed. No order as to costs.

    Nidhi Jain                                         Appeals dismissed.

H