Gummi Devi and Others vs Yash Pal and Others

Deepak Gupta, J.—This petition is directed against the order dated 19.06.2009 passed by the learned Civil Judge (Sr. Division), Lahaul Spiti at Kullu, rejecting the objections filed by the Petitioners (here-in-after referred to as the judgment debtors) against the instrument of partition prepared by the Local Commissioner.

The undisputed facts are that the Respondents (here-in-after referred to as the decree holders) filed a suit for partition of the suit property claiming therein that they were owners to the extent of 3/4th share and were, therefore, entitled to get 3/4th of the property by metes and bounds. The undisputed facts are that a decree was passed on 29.4.2006 in Civil Suit No. 114 of 2001 wherein the decree holders were held entitled to 3/4th share in the property. It is also not disputed that decree has never been challenged. As a consequence of the decree the learned trial Court appointed the Assistant Collector 1st Grade, Kullu as Local Commissioner to go to the spot and define 3/4th share of the decree holders in the suit property and prepare a sketch in this behalf. Originally, the suit had been filed in respect of Khasra No. 881 measuring 0-9-0 bighas. However, the Assistant Collector found that during settlement proceedings this khasra number had been assigned new khasra No. 419 and that total land at the spot only measured 0-7-10 bighs. Therefore, there was shortage of 1 biswas and 10 biswansis.

Main objection of the Petitioners is that without first getting this short fall explained no partition by metes and bounds can be done. I am not at all in agreement with the contention raised by the judgment debtors. Admittedly, it is the judgment debtors who are in possession of the entire property. If the entire property is now 0-7-10 3 bighas the decree holders are going to get 3/4th share out of that and not 9 biswas and therefore, the decree holders are not benefited by any shortfall in the area. It is more than apparent that since the judgment debtors are in possession of the entire suit property they want to delay the matter on one pretext or the other so that their possession is maintained. In case the Petitioners have any objection with regard to the area they can raise it before the Settlement Officer, if such, remedy is still available to him under law. The petition is dismissed with the aforesaid observations. Stay order is vacated. No order as to costs