PARWATI Vs. MOTIYA

JUDGEMENT

(1.) is is an appeal against the judgment of the Commissioner Kota dated 31.3.60 by which he has set aside the judgment of the Assistant Collector Baran dated 20.4.59 and rejected the suit of the appellant for the division of holding, wrongly described by him as a suit for partition. We have heard the learned counsel for the parties at great length and examined the record as well.

(2.) Briefly, the facts are that the appellant preferred a suit on 5.7.57 for the division of the Khata (holding) No. 102 of village Badwa Tehsil Anta that stood jointly in the name of the parties and another land measuring 9 bighas mortgaged jointly with them. The allegation was that on 31.1.56 the appellant had got opened a mutation for having the division done; that on 25.6.56 the Panchas of village Badwa divided all fields in the holding as well as the mortgaged land half and half between the parties, which was agreed to by the respondent; and that, therefore, the appellant got the mutation rejected on 6.7.56. The appellant thereupon gave the land of her share (41 bighas) for cultivation to one Biharilal for one year Sambat 2013 on a munafa of Rs. 8oo/ - out of which Rs. 500/ - were given by the Panchas to the respondent towards the repayment of debts. Further it was alleged that Biharilal was the son -in -law of the respondent and, therefore in collusion with her, he wanted to deliver the possession of the land of the share of the appellant to the respondent, and that the respondent had herself threatened many a time that she would cultivate the land and not let the appellant cultivate it, 1.4.57 being the last date on which she had given this threat. The prayer was that the respondent should be restrained through a perpetual injunction from taking the possession of the land of the share of the appellant; and that the land belonging to the share of the appellant be divided and given separate Khasra numbers. This was denied by the respondent. She pleaded that the appellant had been excommunicated from the caste because of her living with her mother, herself ex -communicated from the caste. She also pleaded that the debts due from the original holder of the land were paid off by the respondent and that it was to save herself from the responsibility of paying these debts that the appellant got the application for mutation withdrawn and rejected. She has contended that the appellant was no longer entitled to have the holding divided. She should at the utmost sue for the specific performance of the Panch Faisla i. e. the compromise arrived at by the Panchas. The prayer was that the suit be dismissed because of being not maintainable.

(3.) The learned trial court after framing the necessary issues and recording the evidence of the parties decreed the suit on 19.3.58 holding that the land comprised in Khata No. 102 was liable to be divided equally between the parties and that, therefore, a preliminary decree be prepared under sec. 53 of the Rajasthan Tenancy Act. It was further directed that the parties may divide the land between themselves and report; and that if they could not come to such a mutual agreement, they should obtain the final decree in the matter. It so happened however, that in the decree prepared in compliance of this judgment the land was described to be situated in village Anta instead of the village Badwa. No appeal was preferred against this decree by the respondent. When the mistake in the name of village was discovered by the appellant, she applied for the correction of the name of the village under sec. 152 of Civil Procedure Code. This application was submitted on 23.2.59. The learned Assistant Collector after making necessary enquiries ordered the correction of the name of the village from Anta to Badwa on 20.4.59. The decree was amended accordingly.