Punjab-Haryana High Court
Balbir Kaur vs Daljit Kaur Rai And Ors on 6 March, 2025
Neutral Citation No:=2025:PHHC:031623
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA-163-2020 (O&M)
Reserved on: 03.03.2025
Pronounced on: 06.03.2025
BALBIR KAUR
. . . .APPELLANT
Vs.
DALJIT KAUR RAI AND OTHERS
. . . . RESPONDENTS
CORAM: HON'BLE MR. JUSTICE DEEPAK GUPTA
Argued by:- Mr. Sarju Puri, Advocate, for the appellant.
DEEPAK GUPTA, J.
Defendant of the case is before this Court against the concurrent
findings of the Courts below in the present Regular Second Appeal.
2.1 Plaintiffs Daljit Kaur and others (respondents herein) filed the
suit seeking separate possession by way of partition by metes and bounds of
their ½ share in the suit property measuring 17 marlas comprised in Khata
No.139/1787 Khasra Nos.33//26 situated at Banga, Tehsil Banga, Distt. SBS
Nagar. Plaintiffs claimed to be co-sharer in the suit property to the extent of
1/2 share and sought partition thereof so as to enjoy full fruits of their share.
2.2 Defendant (appellant herein) opposed the suit on the ground
that she was in exclusive possession over the suit property and that the suit
was not maintainable, as suit property is a taur of well, which cannot be
partitioned.
2.3 Necessary issues were framed. Evidence produced by the parties
was taken on record. Trial Court found plaintiffs to be co-owner in the suit
property to the extent of ½ share and defendant-appellant to the extent of
remaining 1/2 share. It was further found that though as per Section 112 of
the Punjab Land Revenue Act, 1887 [for short 'the Act'] partition of a well can
be refused in case said partition is likely to cause inconvenience to the co-
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sharers and other persons. Trial Court found that nature of property was
mentioned as 'Gair Mumkin Taur Chah Gair Jari', which meant that well was
not operational. It was also noticed that as per evidence, earlier there used
to be a well in the suit property, but the same was not at all operational and
the oral evidence to this effect was supported by documentary evidence. As
such, rejecting the stand put forth by the defendant-appellant, preliminary
decree was directed to be passed in favour of the plaintiffs for partitioning
their ½ share in the suit property vide judgment dated 22.10.2018.
2.4 Appeal filed by the defendant (Appellant herein) was dismissed
by the Appellate Court on 31.10.2019, thus upholding the findings of the trial
Court.
3. Assailing the abovesaid concurrent findings, though learned
counsel for the appellant-defendant does not dispute the joint nature of the
suit property and the fact that plaintiffs have 1/2 share therein, but the sole
submission made by ld. counsel is that property in dispute was a Gair
Mumkin Chah i.e. well and so it is impartible in view of Section 112 of the Act.
Learned counsel has referred to Harbans Kaur Vs. Gurbax Singh and others,
2016 SCC OnLine P&H 11646.
4. Section 112 of the Act reads as under: -
112. Restriction and limitations on partition: - Notwithstanding anything in
the last foregoing section--
(1) places of worship and burial grounds held in common before partition
shall continue to be so held after partition, unless the parties otherwise
agree among themselves and record their agreement and file it with the
Revenue-officer;
(2) partition of any of the following properties, namely:--
(a) any embankment, watercourse, well or tank, and any land on which the
supply of water to any such work may depend;
(b) any grazing ground; and
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(c) any land which is occupied as the site of a town or village and is assessed
to land revenue; may be refused if, in the opinion of the revenue-officer, the
partition of such property is likely to cause inconvenience to the co-shares,
or other persons directly or indirectly interested therein, or to diminish the
utility thereof to these persons;
Xxxxxxxxxxxxxxxxxxxxx"
5. Perusal of the abovesaid provision clearly reveals that as per
Section 2(a) of Section 112 of the Act, partition of embankment,
watercourse, well or tank or any land on which supply of water to any such
work may depend, may be refused if in the opinion of the Revenue Officer,
partition of such property is likely to cause inconvenience to the co-sharers
or other persons directly or indirectly interested therein or to diminish the
utility thereof to those persons.
6. The words 'on which the supply of water to any such work may
depend' suffixing the words 'any embankment, watercourse, well or tank or
any land' would clearly indicate that partition may be refused only in case
any such embankment, watercourse, well or tank or any such land is such
that supply of water to any such work is dependent. Meaning thereby,
partition may be refused in case of a well (as is the present case) , in case the
supply of water is dependent through the said well.
7. In the present case, the findings of the Courts below, based
upon oral as well as documentary evidence clearly indicate that though in
jamabandi for the year 2007-2008, nature of the suit property is 'Gair
Mumkin Taur Chah', but it is clearly shown as 'Gair Mumkin Taur Chah Gair
Jari', which means that well is not at all operational. There is no cogent
evidence on the part of defendant - appellant that partitioning of the suit
property was likely to cause any inconvenience to the co-sharers or other
persons directly or indirectly interested therein or to diminish the utility
thereof to those persons.
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8. The documentary evidence in the form of jamabandi to which
the presumption of correctness is attached, is further supported by the oral
evidence produced by the plaintiff.
9. In the above circumstances, the Courts below have rightly held
that there was no bar in partitioning of the said property under Section 112
of the Act.
10. Consequently, this Court does not find any ground to interfere in
the concurrent findings of facts recorded by the Courts below. There is no
illegality or perversity in the findings. As such, finding no scope for
interference, the present appeal is hereby dismissed.
(DEEPAK GUPTA)
06.03.2025 JUDGE
Vivek
Whether speaking/reasoned? Yes
Whether reportable? Yes
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