SUKHDEV SINGH Vs. STATE OF J AND K

JUDGEMENT

(1.) This letters Patent Appeal is directed against the order of learned Single Judge dated 07-11-2003 in OWP No. 492/2003 arises from partition proceedings. The Assistant Settlement Officer, Jammu exercising the powers of the Collector under the Agrarian Reforms Act, by order dated 19-12-2001, held that the lands in question cannot be subject to partition in view of rule 12 of the Partition Rules which denies the right to seek partition to persons who are not in possession of the land (Ghair Qabiz, Ghair Hazir). The said order was set-aside in appeal by the Financial Commissioner on 28-05-2003. The appellant moved this Court in OWP No. 492/2003, which was dismissed by the impugned order and hence this appeal.

(2.) The land in question originally belonged to one Shamsher Singh, who died leaving behind Sukhdev Singh, Daljit Singh and Durga Singh, his sons. It is not in dispute that Daljeet Singh and Durga Singh too are co-sharers of the land in question. If that is so, they will be deemed to be in possession of the land and they can not be denied ownership of the land nor its partition. It is well settled that co-sharer has interest in every inch of the land unless and until partition takes place by metes and bounds. Counsel for the appellants sought to place reliance on rule 12 of the Partition Rules. In our opinion, Rule 12 can be applied in case of persons who have been ousted and dispossessed. A co-sharer is to be treated as in deemed possession of the land. Thus we find no error in the order of the learned Single Judge upholding the claim of the respondents seeking partition of the lands in question.

(3.) With the above observation, the appeal stands dismissed.