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1976 DIGILAW 108 (PAT)

Kewal Baso Devi v. Mosst. Gangotra Kuer

1976-05-02

S.ALI AHMAD

body1976
Judgment S. Ali Ahmad, J. 1. This first appeal is by the defendants third set and is directed against the final decree passed in a partition suit. The plaintiff respondents first set brought a suit for partition claiming 1/6th share in the suit land. The defendants-first set and the defendants-second set also claimed 1/6th share each. The suit was decreed by the trial court against which a first appeal, which was numbered as F. A. No.517 of 1958 was filed by the plaintiffs. That first appeal was decided on 19-9-196, and it was held in that case that the plaintiff-respondents first party, defendants-first party and the defendants second party each had 1/6th share in the properties in question whereas the remaining half belonged to the defendants-third set-appellants. Thereafter an application was made for preparation of final decree. A Pleader commissioner was appointed and he filed his report along with a map showing the portion allotted to the parties. The report shows that the properties which had to be partitioned were 34 bighas 13 kathas 5 dhurs of agricultural land and 15 kathas 11 dhurs of homestead land. The Pleader Commissioner divided the lands in four categories. Category a measured 2 bighas 16 kathas 9 dhurs which he valued at Rs.2,000 per bigha. Category b measured 3 bighas 4 kathas 9 dhurs and was valued at rs.1,600 per bigha. Five bighas one katha and 19 dhurs were Category c lands which were valued at Rs.1,500 per bighas. The last category, namely, category d measured 23 bighas 9 kathas 8 dhurs which according to the commissioner valued at Rs.1,200 per bigha. 2. The appellants filed an objection to the report. The learned Subordinate Judge after hearing the objectors confirmed the report submitted by the pleader Commissioner and allotted the Takhta to the parties as indicated in the map. Aggrieved by the allotment, appellants had come to this Court. 3. Mr. Binod Kumar Roy, learned counsel appearing in support of the case of appellants-first set contended that according to the report itself the lands in question valued at Rs.53,636 but the land allotted to the appellants-first set valued only Rs.26,312. Learned counsel says that thereby the appellants have been deprived of the land worth Rs.506. He says that on this account the allotment of Takhta is not equitable particularly when the appellants have not been compensated in terms of money for lesser area. Learned counsel says that thereby the appellants have been deprived of the land worth Rs.506. He says that on this account the allotment of Takhta is not equitable particularly when the appellants have not been compensated in terms of money for lesser area. I do not think, learned counsel is correct. Roughly about 13 dhurs of Class I land has been taken out as rasta which has been kept common to all the parties. Roughly the value of the land kept as rasta will be about Rs.1,000. The land, therefore, which had to be divided amongst the parties were valued only at Rs.52,636 and the appellants who had half share had been given land worth Rs.26,312. In the circumstance, they cannot make a grievance that the allotment made to them is for a value lesser than what was due to them. 4. Mr. Roy next contended that by giving rasta which measured about 12 dhurs valuable land has been wasted. He says that allotment should have been made in such a manner that no land had to be carved out for rasta. It is always better to make allotment without leaving land for rasta, etc. but that is only if such an allotment is possible. Mr. Roy could not show that without leaving any land for rasta access to all the four parties could be given to the portion of the houses which have been allotted to them. I, therefore, see no merit in this argument also. 5. The third point raised by Mr. Roy is that the accepted principle of making allotment is that a compact portion should be given to each parties. He says that the land given to the appellants is not compact. There can be no dispute with the proposition advanced by mr. Roy. But this principle is not absolute. Compactness should always be kept in mind but that should not be at the cost of inconvenience to others. In this case, as the map shows, the appellants have been given a compact area. Mr. Roy, however, says that instead of making a division, north to south, the disvision should have been made east to west and if that was done then land could have been really compact. I do not think, Mr. Roy is correct. The map shows that the land allotted to the appellants is quite compact. 6. The last argument of Mr. Roy, however, says that instead of making a division, north to south, the disvision should have been made east to west and if that was done then land could have been really compact. I do not think, Mr. Roy is correct. The map shows that the land allotted to the appellants is quite compact. 6. The last argument of Mr. Roy is that since the appellants have half share, they should have been given half in the homestead land also which measures 15 kathas 11 dhurs. But the appellants was given 9 dhurs short of the half. He is right. They were given 9 dhurs short. But for that shortage they have been compensated and have been given a larger area in the agricultural land. I do not, therefore, see any illegality or impropriety in such allotment particularly when three sets had to be allotted the shares in the remaining half of the homestead land. 7. For the above reasons, I do not see any merit in this appeal which is dismissed but without costs. Appeal dismissed.