RSA No. 4343 of 2005(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 4343 of 2005 (O&M) Date of Decision: October 22, 2009 Smt. Shakuntla and others ...... Appellants Versus Gian Chand and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.K.S.Malik, Advocate for the appellants. Mr. Lokesh Sinhal, Advocate for respondent No.1. Mr.Ram Tilak Redhu, Advocate for the LRs of respondent No.20. **** Ajay Tewari, J. This appeal has been filed against the judgment and decree of the learned lower Appellate Court reversing that of the trial court and thereby dismissing the suit of the plaintiff-appellants for partition. The two grounds taken are that firstly, the suit was for partial partition and secondly, the Civil Court does not have jurisdiction. The following questions have been proposed:- i) Whether the finding of the learned lower Appellate Court reversing the finding of the trial court is based on non- appreciation of evidence and law? ii)Whether the lower appellate court could dismiss the suit in toto instead of remanding the case for non framing of preliminary decree by the trial court? iii)Whether a suit for partial partition in a separate khewat is maintainable? RSA No. 4343 of 2005(O&M) 2 iv)Whether the civil court has jurisdiction to partition of gair mumkin land? The only questions argued by learned counsel are questions No. (iii) and (iv). With regard to question No. (iii) learned lower Appellate Court has found that originally there was a single khewat of 91 kanals which was inexplicably changed into two khewats without following any procedure. In the circumstances question No.(iii) has to be answered against the appellants. With regard to question No. (iv) learned counsel has argued that the land was earlier arable but is now banjar. In these circumstances learned counsel for the respondents is not in a position to deny that the civil court would have jurisdiction. Consequently the appeal of the appellants is dismissed with the clarification that the finding regarding lack of jurisdiction in the civil court is reversed and the appellants may, if so advised, file a fresh proceedings of partition of the entire holding comprising 91 kanals and 1 marla. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE October 22, 2009 sunita