Baldeva and Others vs Molar and Others

Tek Chand, J.—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--

(1) Has there been a partition previously and if so to what effect ?

(2) Whether there is any land capable of being partitioned and if not to what effect?

(3) Relief.

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.

The dispute in appeal centres round issue No. 2 and the only point urged by the learned Counsel for the Defendants-Appellants is that only vacant places should be partitioned and houses, ghers and gitwars should be excluded from partition regardless of the area in possession of a particular proprietor. The learned Counsel has placed reliance upon Ishwar Singh v. Atma Singh 117 P.R. 1894, and Bur Singh v. Sant Singh AIR 1934 Lah 327, which followed the previous decision. It was said that the village sites are usually recorded as the common property of the community. According to the rule prevalent throughout the Province, a kammi who is allowed to build on a site by the village community can continue to hold the same so long as he pleases, and his posterity may go on holding likewise to the end of time on the same conditions. The members of the community itself may go on holding sites on which they have built and which they have occupied ages ago with the assent or with the acquiescence of their co-sharers. Some other portions of the site are set apart for public use; and the chaupal or hujra is used for a general place of meeting. There is usually an open space round the village commonly called goradeh on which the cattle are collected before going to pastures and other operations are performed. Some lands, by common consent, are devoted to be used for Dharamsalas, for Mosques, for graveyards, for burning ghats, for tanks and for necessary public ways. Dedication to any of the above objects cannot be recalled. Benton J. then observed--

It may be that over the land already described, there may be empty sites in and about the village unoccupied by any individual and not used by the community for any purpose. There is no objection to a partition of these according to the rule applicable in the particular case.

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.

In Bur Singh v. Sant Singh AIR 1934 Lah 327, the above view was endorsed and it was held that the portions of the abadi occupied by houses of the villagers or used for public purposes are not liable to partition. In Mohammad Khan v. Fazal Das AIR 1920 Lah 336 (1), it was held that all joint property was liable to partition but in effecting partition of village abadi, however, it was necessary to exclude the portions occupied by the houses of the village and portions used for public purposes.

Mr. Shamer Chand, learned Counsel for the Respondents, has maintained that the entire abadi belongs to the proprietory body and is liable to be partitioned, the exception being in the case of houses only. The learned Sub-Judge has made an exception in the case of pucca houses only and also in the case of a gher with a pucca boundary and the necessary consequence is that kacha houses or ghers with kacha boundary walls are included in partition. Neither law nor logic admit of distinction between burnt brick houses called pucca and mud houses which are called kacha. The principle of impartibility of residences does not depend upon the permanent or semipermanent character of the structures of the houses. The essential feature is the use to which they are put. No distinction, therefore, can be drawn between houses on the ground of their greater or lesser durability. It is the policy of the customary law that people may feel secure in their habitations and they will be secured against the partition of their buildings whether they belong to the proprietors or to the non-proprietors settled there. I am, therefore, of the view that the houses in the dbadi are impartible and cannot be included in the. partition proposed.

The next point relates to the question of imparti-bility of enclosed spaces called ghers. In principle, it is difficult to draw a distinction between a courtyard or any other enclosure surrounded by walls and the houses. Presence or absence of roof cannot be a safe test for purposes of impartibility. If, on this ground, ghers were to be included in partition of the abadi, then so would the courtyards attached to the houses though they are being used for dwelling purposes. Ghers, in my opinion, which are enclosed with walls, whether pucca or kacha, should partake of the same character from the point of view of impartibility as houses.

The case of gitwars which are open spaces enclosed by thorny shrubs or bushes is, of course, distinct. These open spaces are used for tethering cattle or stacking dung-cakes, etc. These gitwars are essentially vacant or empty sites and having regard to the nature of the use to which they are put without changing their character, they cannot be excluded from partition.

Mr. Shamer Chand, learned Counsel for Respondents, drew our attention to Shah Niwaz v. Ghulam Shah 1938 P.L.R. 91, where Bhide, J. held that the construction of a temporary chhappar on the land which is lying waste does not amount to adverse possession and the fact that there is ordinary enclosure made of bushes makes no manner of difference. The learned Judge also relied upon the leading authority in Framji Cursetji v. Goculdas Madhowji ILR 1892 16 Bom 338. The proposition laid in these authorities and several similar other decisions does lend support to the Respondents'' case as to the partibility of gitwars, but they do not support their contention in relation to the houses or walled enclosures.

Mr. Shamer Chand has referred us to the decision of Achhru Ram, J. in Bashambar Dass v. Mulk Raj (1949) 51 P.L.R. 192. In that case, a short time before the institution of the suit, certain Defendants had built a compound wall about one foot in height with a view to construct a house on that site. In this manner the Plaintiffs, who were co-proprietors in the abadi, maintained that they had been dispossessed from their joint user. The Plaintiffs also contended in the alternative that, as the site was a part of the shamlat of the village, Defendants had no right to construct any building thereon. They prayed for issuance of a perpetual injunction restraining them from constructing any building on the site. They had also prayed for mandatory injunction for demolition of the wall which had been constructed and for the restoration of the site to its original condition. The learned Judge held that the co-sharers in exclusive possession of a site in the abadi could not use it in any manner which altered its joint character or was otherwise inconsistent with the rights of the other co-sharers or was likely to cause such loss to them as could not be made good at the time of partition. As the suit in that case had been brought with all promptitude, the Plaintiffs were granted an injunction restraining the contesting Defendants from building on the site. The learned Judge did not consider it necessary to grant a mandatory injunction for the demolition of one foot high wall which had already been constructed as its existence might be useful for warding off cattle and passers-by and particularly when the joint character of the site was not being affected. This decision does not appear to us to support the position which the Respondents have taken up in regard to ghers or walled enclosures. This decision does not even remotely support the view that walled enclosures, regardless of the time when they were enclosed, are liable to be included in the partition of vacant sites in the abadi.

The contention of the Appellants deserves to prevail with regard to houses and walled enclosures whether pucca or kacha. The distinction drawn by the lower appellate Court between pucca houses and ers with pucca boundary walls and kacha houses d ghers enclosed by kacha walls is pointless. The eliminary decree passed by the trial Court deserves be modified in so far that no proprietor would be spossessed from pucca or kacha houses and ghers ith pucca or kacha boundary walls on all the four ies. The preliminary decree in all other respects mains unaltered.

The appeal is allowed to the extent indicated love. In the circumstances of this case, the parties he left to bear their own costs throughout.

K.L. Gosain, J.

I agree.