BALDEVA AND ORS. Vs. MOLAR AND ORS.

JUDGEMENT

(1.) THE Plaintiffs have instituted a suit for possession by partition on the allegation that the parties were proprietors in village Gopalpur and there were several other proprietors as well. The Plaintiffs have impleaded Defendants Nos. 1 to 4 in a representatives capacity under Order 1, Rule 8, representing the entire proprietary body. In this suit, these Plaintiffs pray for a decree for possession by partition of the abadi land situated in the village. The Plaintiffs have prayed that the partition of the area over which residential houses have not been built and land which may be capable of partition may be distributed Pana -wise and that the Plaintiffs' share within the Pana may be separated and they may be put in possession thereof. According to the revenue settlement records for the year 1909, the abadi deh of Mauzia Gopalpur has been shown as bearing Khasra No. 2261 measuring 70 bighas 1 biswa. The Plaintiffs claim that they are entitled to 51 bighas as their share. The village has two Panas - -Pana Rajan and Pana Jetan. The Plaintiffs allege that their share in Pana Rajan is 2912/57600. In the written statement of Baldeva and others it was alleged that the Defendants were in possession of their respective shares since long and as a result of mutual settlement by their ancestors. Hira Singh Defendant and others supported the Plaintiffs' claim. The pleadings between the parties gave rise to the following issues - -

(2.) THE trial Court held that there had been no previous partition and the statements of the witnesses for the contesting Defendants were not held to be reliable enough to prove oral partition. On the second issue it was held that there was sufficient partible land. On the above findings, a preliminary decree for possession by way of partition of the abadi deh of the village was passed. The share of each proprietor was to be according to the land revenue paid by him. A local commissioner was appointed to partition the area and direction was given that he was to exclude from partition paths and tanks and should leave enough area in the abadi for the cattle and for common purposes and that some area should be reserved for the extension of the abadi of the Harijans. It was ordered that the houses in the possession of the Harijans would not be included in the partition. The trial Court also ordered that no proprietor would be dispossessed from his pucca house or gher with a pucca boundary wall on all the four sides, but the area under houses or ghers would be included in partition to determine the share of such a proprietor. Gitwars irrespective of possession would be included in partition. The contesting Defendants have come up in appeal to this Court.

(3.) THE learned Counsel for the Appellants cited the above observations in support of his contention that the area under houses, ghers and gitwars is not partible and empty sites alone which are not used by the community for any purpose can be partitioned.