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2018 DIGILAW 1678 (RAJ)

Mahaveerya Meena v. Murari Meena

2018-08-08

SANJEEV PRAKASH SHARMA

body2018
JUDGMENT : SANJEEV PRAKASH SHARMA, J. The respondents have entered as caveator and have also filed their reply. 2. Having heard both the counsel, this Court finds that the petitioners are assailing the orders passed by the SDO, Hindaun dated 07.02.2017 and the order passed on the appeal dated 22.05.2018 and the order passed by the Board of Revenue in Revision Petition dated 21.06.2018 whereby both the appellate courts have rejected the appeal preferred by the petitioners against the vacation of the interim order passed earlier in favour of the petitioners, by the SDO. The main gamut of the arguments of the petitioners is that while both the petitioners and the respondents are co-sharers to the property of the land in question, and there has not been a partition by meets and bounds, none of the co-sharers would be allowed to construct in any part of the property with the consent of the other co-sharers. It is his submission that the petitioners have filed a suit for partition and for dividing the property by meets and bounds before the Court of SDO Hindaun City wherein an interim order of status quo had been granted vide order dated 06.01.2017. On 07.02.2017, the status-quo order was vacated mentioning therein that there was an interim order passed by the Civil Court and therefore the status-quo order could not be continued. The appeal was preferred by them before the Revenue Appellate Authority who vide order dated 22.05.2018 has maintained the impugned order passed by the SDO on 07.02.2017 and the revision petition preferred before the Board has also been dismissed. 3. Learned counsel for the petitioners submits that although there was an oral partition between the petitioners and the respondents relating to the land in question, however departing from the oral partition, the respondents have taken possession of the valuable property situate on main road which is adjacent to the road and are constructing house therein, and therefore, the petitioners had to approach the SDO for partition by meets and bounds. It is his submission, therefore, that in terms of Section 211 of the Rajasthan Tenancy Act, 1955, the respondents be restrained from making any construction. 4. It is his submission, therefore, that in terms of Section 211 of the Rajasthan Tenancy Act, 1955, the respondents be restrained from making any construction. 4. Per contra, counsel for the respondents submits that so far as the partition is concerned, the same has already been done orally between the brothers i.e. the petitioners and the respondents and the petitioners have already made construction on their part of the land and now when the respondents are constructing on their part of the land, the petitioners are objecting mainly because in separate proceedings, the respondents have restrained the petitioners from closing the way towards the residences of the respondents. Learned counsel further submits that if any construction is being done, the same is at their own risk and cost and if there is a partition by meets and bounds and if any part of the property goes in favour of the petitioners, the respondents would have to face the losses and benefit would go to petitioner and since the factum of improvement would not come within the meaning of affecting or taking away the rights of the petitioners, no interference ought to be made in the orders. 5. Having heard both the counsel and after taking note of the facts, it would be appropriate to quote Section 211 of the Act for the purpose:— “211. Suits etc. by co-sharers— (1) Except as other wise provided in sub-section (3), when there are two or more co-sharers in any right, title or interest, all things required or permitted to be done by the possessor of the same shall be done by them conjointly, unless they have appointed an agent to act On behalf of all of them. (2) Nothing in sub-section (1) shall affect any local usage or special contract by which a co-sharer is entitled to receive separately the whole or his share of the rent payable by a tenant. (3) When one of two or more co-shares is not entitled to sue or proceed alone and the remaining co-sharers refuse to join in a suit or proceeding for money recoverable by them jointly, such co-sharer may sue or proceed separately for his share, joining the remaining co-sharers as parties thereto. (3) When one of two or more co-shares is not entitled to sue or proceed alone and the remaining co-sharers refuse to join in a suit or proceeding for money recoverable by them jointly, such co-sharer may sue or proceed separately for his share, joining the remaining co-sharers as parties thereto. (4) Where the tenant of a holding or the illegal transferee of such tenant is also a co-sharer in the proprietary right in such holding nothing in this section shall require him to be joined as plaintiff or applicant in any suit or application brought or made against him as such tenant or illegal transferee under provision of this Act. On perusal of aforesaid section, it is apparent that under the said section if there are two or more co-sharers having any right, title or interest, all things required or permitted to be done by the possessor of the same shall be done by them conjointly. However, sub-Section 2, departs from the sub-Section 1, allows anything to be done by co-sharer on basis of a special contract by which a co-sharer is entitled to receive separately the whole or his share of the rent payable by the tenants. 6. Taking note of above, if the facts of the present case are examined, this Court finds that both the parties have already entered into oral partition of the total land and each of them are having independent cultivation on their part of the lands. Similarly, their residences are also separately marked. In the circumstances, therefore, one of the party would not be barred by Section 211 from making construction in his part of the property as oral partition exists amongst them so far as the question regarding division by meets and bounds by moving an application before the concerned SDO would be decided on facts of the case at the time of disposal of the suit. In the meanwhile the parties to the said suit cannot be restrained from enjoying their part of the property which they are in possession of, till final disposal of the suit. If after the decision of the partition/meets and bounds suit, any part of the property or land goes in favour of the other party, the construction made therein would also fall in his share. If after the decision of the partition/meets and bounds suit, any part of the property or land goes in favour of the other party, the construction made therein would also fall in his share. Thus, till final disposal is made, both the parties would be allowed to make any construction/cultivation or house of any other nature on the land which they are in possession. 7. Thus viewed, the order passed by the Revenue Appellate Authority and the Board does not call for any interference. As both the Revenue Appellate Authority and the Board have examined the aforesaid aspect and reached to the conclusion that order of restraining the respondents from making any construction is not warranted. Having stated so, it is however made clear that both the parties shall not alienate any part of their property during the pendency of the suit. 8. With the aforesaid limited restraint order, the suit itself is directed to be decided within a period of six months henceforth. Accordingly, the writ petition is dismissed with the aforesaid observations.