SHESH NATH Vs. PARBATI

JUDGEMENT

(1.) Heard learned counsel for the petitioners and perused the orders passed by opposite parties Nos. 2, 3 and 4. The question involved in the present case is regarding the extent of share of Parbati, opposite party No. 1. widow of Vishwanath. Admittedly she is widow of Vishwanath, who had 1/4th share in the holding in dispute. Learned counsel for the petitioners contended that on the basis of private partition parties were in possession over specific plots and, therefore, their shares were to be determined on the basis of possession. He further contends that Smt. Parbati is not in possession over the plots to the extent of her alleged 1/4th share in the holding in dispute. He thus urged that opposite parties Nos. 2 to 4 legally erred in granting to opposite party No. 1,1/4th share in the holding in dispute. Learned counsel for the petitioners further contended that whatever land is in possession of Smt. Parbati should be declared to belong to her and not 1/4th share in the holding in dispute. He further asserts that Smt. Parbati is in possession of the land which is less than 1/4th share in the holding in dispute and as such the impugned orders are not sustainable. I do not agree with these contentions. While determining shares in a joint holding parties are to be given share to which they are entitled according to law and not merely on the basis of possession over specific plots because possession of one co-tenant is possession of all and a co- tenant cannot lose his or her legal share in the holding in dispute merely because be or she happens to be in possession over a lesser area to what he is entitled in it. Learned counsel for the petitioners in the end urged that Vishwanath has transferred the land of his share and whatever land has been sold by Vishwanath the same has to be excluded from the share of opposite party No. 1. He further contends that in proceedings under Section 145 Cr. P. C. Quras were submitted in respect of those plots over which the parties were in actual possession and the same were accordingly released. On these facts he contends that opposite parties Nos. 2 to 4 have erred in not ordering the names of the parties to be recorded on the plots over which they were in possession. Learned counsel thus contends that opposite parties Nos. 2 to 4 have erred in granting 1/4th share to opposite party No. 1 by totally ignoring the fact that she is not in possession over the land to the extent of 1/4th share in the holding in dispute. I do not agree with these contentions. The Joint Director of Consolidation, opposite party No. 4, has observed that no sale deed has been tiled in the case nor even secondary evidence has been led to prove that Vishwanath alone had executed the sale deeds transferring the land of his own share. In these circumstances it cannot be said that the Joint Director of Consolidation has committed an error in holding opposite party No. 1 to be entitled to 1/4th share. So far as latter part of the aforesaid argument is concerned, the orders passed in proceedings under Section 145 Cr. P. C. are merely police orders. They are meant for maintenance of peace and they cannot determine the right and title of the parties. If in proceedings under Section 145 Cr. P. C. the parties had submitted Quras indicating certain plots on which they are in exclusive possession it would not mean that opposite party No. 1 would lose her share in the holding, or in any portion thereof, to which she is legally entitled being admittedly a co-tenure holder in the holding in dispute. It is well settled rule of law that possession of one co-tenant is possession of all, hence every co-tenant is equally entitled to a share in every inch of land of the holding, unless a claim of ouster and adverse possession is successfully set up by the contesting tenant and he thereby acquires rights, by adverse possession and his co-tenant loses his rights in the holding in dispute or in any specific plots therein. In this view of the matter, I do not find any error has been committed by opposite parties Nos. 2 to 4 in giving 1/4th share to oppo site party No. 4. The writ petition, being devoid of merit, is dismissed in limini. .