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Smt. Rajbala vs. Ram Kumar

In the Court of Akshay Chaudhary, Civil Judge(Junior Division), Narwana,

District Jind (Haryana) (UID No.HR0384).

CIVIL SUIT No. 112 of 18.05.2016

CIS No. CS/268/2016
CNR No. HRJNA10003682016
DATE OF INSTITUTION 18.05.2016
DATE OF DECISION 22.02.2023

Smt. Rajbala Devi s/o Dilbag s/o Partap Singh, r/o Badoa Tehsil Uchana Distt.
Jind.
....Plaintiff.
Versus

1. Ram Kumar deceased through LR, (a) Phoolpati widow, (b) Suresh son, (c)
Saroj, (d) Sheelan d/o Ram Kumar s/o Bhagtu s/o Mamraj
2. Inder Singh s/o Bhagtu s/o Mamraj,
3. Naitik minor son,
4. Smt. Roshni widow Sandeep s/o Inder Singh, minor
5. Suresh s/o Ram Kuamr s/oBhagtu,
6. Smt. Bimla w/o Inder Singh s/o Bhagtu r/o Baroda Tehsil Uchana Distt.
Jind.
…...Defendants

SUIT FOR PARTITION

Present: Shri Pardeep Malik, Advocate for plaintiff.

Defendants no. 2,3, 4 and 6 exparte v.o.d. 8.11.2016
Sh. B.S. Nain, Advocate for defendant no. 5 and 1A.
Defenants no. 1c and 1D already exparte v.o.d. 29.9.2022.

JUDGMENT

The plaintiff has filed the present suit seeking a decree for

partition of land measuring 2K-11M comprised in khasra no.348/1/2(1-0),

1647/2(1-11) recorded in khewat no. 809 khatoni no. 1098 situated at village

Baroda, Tehsil Narwana.

FACTS

(Akshay Chaudhary),
CJ(JD), Narwana,
UID No. HR 0384,
22.02.2022
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Smt. Rajbala vs. Ram Kumar

2. The brief facts of the case as mentioned in the plaint are that land

measuring 2K-11M comprised in khasra no.348/1/2(1-0), 1647/2(1-11)

recorded in khewat no. 809 khatoni no. 1098 vide mutation no. 6164 situated at

village Baroda Tehsil Narwana is joint in between the parties and the plaintiff

is owner of 2/17 share in the said land which has not been partition by meets

and bounds. It was averred that Sandeep s/o Inder Singh has expired and he is

being represented by defendant no. 3 and 4 further Rohtash has also expired

issueless who is being represented by Ram Kumar. It was averred that the suit

land has not been partitioned till date and houses have been constructed on part

of land whereas the remaining is vacant. The plaintiff has many times

requested the defendant to partition the suit property but to no avail. Hence, on

these grounds the present suit has been filed by the plaintiff.

3. In the written statement filed on behalf of defendants no. 1 and 5,

it was denied that the suit land is joint rather it was averred that partition of

land comprised in khasra no. 348/1/2 measuring 1K-13M has been effected

mutually around 30 years back and as per the partition, the said land has come

to the share of defendant no. 1 and 5. It was averred that defendant no. 1 and 5

are in possession of the land which has came to their share and they have

constructed houses as well as have taken electricity connection in the same. In

exchange of this land, defendant no. 2,3,4 and 6 have been given ancestral land

within the lal dora of the village and they are in possession of the said houses

only. It was averred that Khasra no. 1647/2 measuring 1K-11M is gair mumkin

rasta land which cannot be partitioned. It was averred that present suit has

(Akshay Chaudhary),
CJ(JD), Narwana,
UID No. HR 0384,
22.02.2022
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Smt. Rajbala vs. Ram Kumar

been filed by the plaintiff in collusion with defendant no. 2 to 4 and 6.

Thereafter, all others facts of plaint were denied as being wrong and it was

prayed that suit of plaintiffs may kindly be dismissed.

4. In the replication to the written statement of defendant no. 1 and

5, it was averred that the plaintiff is in possession of the land since the time of

purchase. It was denied that the land was mutually partitioned rather it was

averred that the same is still joint. It was averred that khasra no. 1647/2 is a

gair mumkin plot and not a rasta as claimed in the written statement. Hence, it

was prayed that the suit of the plaintiff may kindly be allowed.

ISSUES

5. From the pleadings of the parties, the following issues were

framed by the Court vide order dated 10.03.2017:-

1. Whether the plaintiff is entitled to a decree for partition as prayed for on

the grounds mentioned in the plaint? OPP
2. Whether the present suit is not maintainable in the present form? OPD

3. Relief

EVIDENCE

6. The plaintiff in order to prove her case examined herself as PW1

and she tendered into evidence her duly sworn affidavit as Ex.PW1/A

7. Thereafter, plaintiff closed her sevidence on 27.11.2018 after

tendering following documents :-

Ex.P1 Certified copy of sale deed no. 2829 dated

22.01.2013

Ex.P2 Certified copy of mutation no. 6164

(Akshay Chaudhary),
CJ(JD), Narwana,
UID No. HR 0384,
22.02.2022
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Smt. Rajbala vs. Ram Kumar

Ex.P3 Certified copy of jamabandi for year 2014-15

8. In defendant evidence, Phoolpati was examined as DW1 and she

tendered in evidence her duly sworn affidavit as Ex.DW1/A.

9. Suresh was examined as DW2 and he tendered into evidence his

duly sworn affidavit as Ex.DW2/A.

10. Thereafter, ld. Counsel for defendants no. 1A and 5 closed the

evidence on 31.01.2023 after tendering the following documents:-

Ex.D1 Certified copy of jamabandi for year 2019-20

Ex.D2 Certified copy of jamabandi for year 2014-15

Ex.D3 Certified copy of fard badar no. 19

Ex.D4 Certified copy of mutation no. 3194

Ex.D5 Certified copy of jamabandi for year 1965-66

Ex.D6 Certified copy of jamabandi for year 1969-70

Ex.D7 Certified copy of jamabandi for year 1974-75

ARGUMENTS

11. The Ld. counsel for the plaintiffs has argued that it is duly proved

from the records of the case that suit land is joint in between the parties which

has not been partitioned till date. It was argued that the plaintiff had become a

co-sharer in the suit land after purchasing the same from one of the co-sharer

namely Inder Singh. Now the plaintiff wants to separate her share from other

co-sharers so she has filed the present suit. Hence, it was prayed that suit of the

plaintiff may kindly be decreed.

(Akshay Chaudhary),
CJ(JD), Narwana,
UID No. HR 0384,
22.02.2022
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Smt. Rajbala vs. Ram Kumar

12. On the other hand, Ld. counsel for the defendant no. 1A and 5 has

argued that the present suit filed by the plaintiff is not maintainable as land

comprised in khasra no. 1647/2 is land pertaining to rasta and not a gair

mumkin land as has been claimed in the present suit. Further the suit land has

been mutually partitioned in between the co-sharers around 30 years back and

the vendors of the plaintiff in exchange of their share in the suit land were

given houses situated within the abadi deh of village so the vendors of plaintiff

did not have any concern with the suit land. Thus, it was prayed that suit of the

plaintiffs may kindly be dismissed.

FINDING

13. After having heard the learned counsel for parties at length and

having gone through the entire evidence on record, carefully and

comprehensively issue-wise findings are as follows:-

ISSUE NO. 1

14. The onus to prove this issue was upon the plaintiffs. The

plaintiffs has filed the present suit seeking a decree for partition of land

measuring 2K-11M comprised in khasra no.348/1/2(1-0), 1647/2(1-11)

recorded in khewat no. 809 khata no. 1098 situated at village Baroda, Tehsil

Narwana. At the outset it would be relevant to discuss that the defendant in his

written statement has taken on objection that khasra no. 1647/2 is a land

reserved for rasta and not abadi land so same cannot be partitioned. In order to

establish this fact, the defendant has relied upon jamabandi Ex.D1 for the year

2019-20 wherein khasra no. 1647/2 is recorded as gair mumkin rasta. Most

(Akshay Chaudhary),
CJ(JD), Narwana,
UID No. HR 0384,
22.02.2022
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Smt. Rajbala vs. Ram Kumar

importantly, the defendant has placed on record document Ex.D3 which is fard

badar no. 19 for the year 2014-15 as per which it is clearly mentioned that the

land comprised in khasra no. 1647/2(1-11) has been wrongly recorded as gair

mumkin abadi in the jamabandi for the year 1974-75 till 2014-15. Previously

as per jamabandi for the year is 1965-66, the same was gair mumkin rasta

which was correct so vide fard badar, correction in the revenue record was

carried and the nature of the land comprised in khasra no. 1647 is now gair

mumkin rasta. This is duly depicted in jamabandi Ex.D1 also. So once the land

is gair mumkin rasta then the same cannot be partitioned and the plaintiff being

a co-sharer is the land would only have the right to use the same. So the

present suit is not maintainable qua khasra no. 1647/2.

15. As regards to khasra no. 348/1/2, the plaintiff in order to prove the

fact that the plaintiff is a co-sharer in this land has relied upon jamabandi

Ex.P3 which depicts the plaintiff to be owner in joint possession of 2/17 share

in the suit property. The jamabandi Ex.P3 further reveals that the suit land is

joint in between the plaintiff as well as other co-sharers. Therefore, the

plaintiff has been duly able to establish the fact that the suit land is joint and

the plaintiff is a co-sharer in the same.

16. Now the onus was upon to defendant to rebut the case of the

plaintiff and the defendant in order to rebut the case of the plaintiff has in his

written statement taken a defence that the vendors of the plaintiff namely Inder

Singh alongwith defendant no. 2 to 4 and no. 6 had no right in the suit land

because in exchange of the suit land, they were given ancestral houses situated

(Akshay Chaudhary),
CJ(JD), Narwana,
UID No. HR 0384,
22.02.2022
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Smt. Rajbala vs. Ram Kumar

within the abadi deh of village. However, a perusal of the case file reveals that

there is absolutely no evidence on record which would in any way establish the

stand taken by the defendant that in exchange of the suit land,s the plaintiff as

well as defendant no. 2 to 4 and 6 were given land within the abadi deh of

village. The defendant has even failed to placed on record the site plan or any

other documents in forms of bills or field book which would establish the fact

that there was any joint property owned by the parties within the abadi of

village. Thus, the defendant has miserably failed to establish the stand taken

by them.

17. Now the court shall decide the shares owned by each ofthe

parties. As is revealed from jamabandi for the year 2009-10 placed on the case

file, which though was not formally exhibited but being a certified copy court

can take judicial notice of the same. It is duly revealed from the jamabandi for

the year 2009-10 that Sh. Inder was owned of 2/7 share in land comprised in

khasra no. 348/1/2 measuring 1K-0M. This entire share owned by Inder would

be transferred to the plaintiff because the plaintiff had purchased 6 marla share

from Sh. Inder. The share purchased was comprised in two khasra numbers but

as is discussed above, khasra no. 1647/2 is a land reserved for rasta so same

cannot be partitioned. Hence, the plaintiff would compensated out of share of

Sh. Inder Singh in khasra no. 348/1/2 and would be entitled to 2/7 share in the

same. On the other hand, defendant no. 1A to D would be jointly entitled to 1/7

share, defendant no. 3 and 4 would be jointly entitled to 2/7 share, defendant

no. 5 would be entitled to 3/7 share, defendant no. 6 would be entitled to 1/7

(Akshay Chaudhary),
CJ(JD), Narwana,
UID No. HR 0384,
22.02.2022
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Smt. Rajbala vs. Ram Kumar

share in the suit land. Thus in view of the above discussion the issue no. 1 is

decided partly in favour of plaintiff and partly in favour of defendants.

ISSUE NO.2

18. The onus to prove these issues was upon the defendants. As

discussed in issue no. 1, land comprised in khasra no. 1647/2 cannot be

partitioned so suit is not maintainable qua khasra no. 1647/2. Accordingly, this

issue is decided partly in favour of defendants and partly in favour of

plaintiffs.

RELIEF

19. In view of the findings arrived on the aforesaid issues, the suit of

the plaintiff succeeds and a preliminary decree for partition of khasra no.

348/1/2(1-0) situated in village Baroda, Tehsil Uchana is hereby passed. The

plaintiff would be entitled to 34/119 share, defendant no. 1a to d would be

jointly entitled to 1/14 share, defendant no. 3 and 4 would be jointly entitled to

2/7 share, defendant no. 5 would be entitled to 3/14 share and defendant no. 6

would be entitled to 1/7 share in the suit land. Decree-sheet be prepared. File

after due compliance be consigned to the record room.

Pronounced in open Court (Akshay Chaudhary),

On 22.02.2023 Civil Judge (Jr. Divn.),
Narwana

This judgment contains 8 pages and all the

pages have been checked and signed by me

(Akshay Chaudhary)
Civil Judge (Jr. Divn.),
Narwana,UID No.HR-00384
Neha
Stenographer-II

(Akshay Chaudhary),
CJ(JD), Narwana,
UID No. HR 0384,
22.02.2022