PRATAP Vs. JAGMAL

JUDGEMENT

(1.) The facts in brief requiring for adjudication to the issue involved in the present writ petition are that the respondents /plaintiffs Jagmal Singh & others filed a suit in the Court of learned Sub Divisional Officer, Jhunjhunu, for partition in the ratio of 1/3 and 2/3 of the land bearing Khasra No.9/2 measuring 3 bigha 10 biswa, khasra No.13/1 measuring 102 bigha 10 biswa and khasra No.163 measuring 8 bigha 1 biswa situated at Village Farat, Tehsil Chirawa, District Jhunjhunu. On 30/8/1988 ex-parte proceeding were ordered against the petitioner/ defendants and the matter was fixed for the evidence of the plaintiffs. The Court of Assistant Collector, Chirawa (for short 'the trial court') after taking into consideration the plaintiffs evidence passed an ex-parte judgment and preliminary decree on 5/9/1988. In the revenue suit it was averred that the plaintiffs and the defendants were belonging to the same family. The dispute was in regard to their ancestral property and both the parties were in continuous possession of the same from the time of their ancestors. It was stated that Ganpat and Chandra Ram were elders in the family and as such they were Karta thereof. During the lifetime of Chandra Ram, Gopal and Ganpat, the parties were cultivating the disputed land jointly by mutual arrangement. In that situation the legal partition of the land between the parties did not take place. It was stated that mutation No.64 of the disputed land was entered in the name of Chandra Ram s/o Shri Ramlal without the knowledge of the plaintiffs and contrary to their interest. When the plaintiffs came to know about the attestation of the mutation which is alleged to be done by collusion and without any basis as all the legal heirs of Chandra Ram had equal shares in the disputed land and the ancestors of these of three were entitled to 1/3rd share out of the total land, they have filed the suit for partition.

(2.) By the ex-parte judgment and preliminary decree dtd. 5/9/1988, the Tehsildar, Chirawa was ordered to perform the decree of partition of the subject property in the ratio of 1/3 to plaintiff Jagmal, 1/3 to Chandraram and 1/3 to Ganpat, the operative portion of which is reproduced as under:-

(3.) Being aggrieved by the ex-parte judgment and the preliminary decree dtd. 5/9/1988 passed by the trial court, the defendants Rawat and Pratap preferred an appeal in the Court of learned Revenue Appellate Authority, Sikar (for short 'the First Appellate Authority'), which was allowed vide judgment dtd. 7/1/1989 thereby setting aside the ex-parte judgment and preliminary decree dtd. 5/9/1988 passed by the trial court, the operative portion of which is reproduced as under:-