IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 125 of 2006 Date of decision: 20.07.2010 ______________________________________________________ Lajwanti Kumari .....Petitioner. Versus Rekha Rani .....Respondent. Coram The Hon'ble Mr. Justice Surjit Singh, J. Whether approved for reporting?1 Yes. For the petitioner: Mr. Hamender Chandel, Advocate. For the respondent: Mr. Bhupender Gupta, Senior Advocate, with Ms. Charu Gupta, Advocate. ______________________________________________________ Surjit Singh, J (oral). Petitioner is aggrieved by the order dated 18.12.2001, copy Annexure P-3, of Revenue Officer, order dated 30th July, 2002, copy Annexure P-5, of the Collector, order dated 29th April, 2003, copy Annexure P-7, of Deputy Commissioner, exercising the powers of Commissioner, in Revision and order dated 30th March, 2006, copy Annexure P-1, of the Financial Commissioner, whereby his plea that a portion of khasra No. 38, on which he has constructed his house, should have been allotted to him in its entirety, has been rejected and khasra No. 38, which is held to be more valuable than the rest of the property of the parties, has been ordered to be divided equally between him and his co-sharer, respondent, Rekha Rani. 1 Whether reporters of Local Papers may be allowed to see the judgment? -: 2 :- 2. An application was filed by respondent, Rekha Rani, for partition of joint property of the parties. Petitioner agreed to the partition, but stated that the site under his house and courtyard of that house, standing on khasra No. 38, be allotted to him in its entirety. It may be stated that khasra No. 38 abuts on the road and its side towards the road, measures 41 karams. Petitioner has occupied a portion of this khasra number and the length of the side towards road is 23 karams and rest of the portion with side towards the road, measuring 18 karams, is with the respondent. This khasra number, being more valuable on account of its abutting on the road, respondent claimed equal area of this khasra number. Revenue Officer ordered the partition of this number, allotting equal portions to both the parties by ordering that a part of the courtyard of the house of the petitioner shall be given to the respondent by demolishing the wall on the side, allotted to the respondent and the wall, as per order, Annexure P-7, has been agreed to be constructed by the respondent on the boundary of the two portions of the khasra, which has been fixed in accordance with the final order of partition. 3. Petitioner’s contention is that since khasra No. 38, in its entirety, was occupied as site of building, had ceased to be land and was, therefore, not liable to partition, under H.P. Land Revenue Act, and the orders of the Revenue Officer, as also the superior Revenue Authorities, who exercised appellate and revisional powers in the matter, are bad for want of jurisdiction. Contention raised on behalf of the petitioner cannot be accepted, in view of the provision of -: 3 :- Section 124 of the H.P. Land Revenue Act, which is reproduced below: “124. Restrictions and limitations of 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, water course, well or tank, and any land on which the supply of water to any such work may depend, (b) any grazing ground, and (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-sharers or other persons directly or indirectly interested therein, or to diminish the utility thereof to those persons; and (3) the fact that a partition on the application of a joint owner of land would render necessary the severance into two or more parts of the land comprised in the tenancy of a tenant having a right of occupancy may, unless the tenant assents to the severance, be a sufficient reason for the disallowance of the partition in so far as it would affect that tenancy.” -: 4 :- 4. From a bare reading of Section 124 (2) (c), it is clear that land which is occupied as site of a village, that is to say, residential area, and is assessed to land revenue, is also subject to partition, but the Revenue Officer may refuse to partition such site, if in his opinion, the partition of such property is likely to cause inconvenience to the co-sharers or other persons, directly or indirectly, interested therein or is to diminish the utility of such land to those persons. 5. Learned counsel for the petitioner submits that Section 124 (2) (c) of the H.P. Land Revenue Act applies to the abadi lands recorded as abadi deh in the revenue papers. Firstly, the submission is not correct, because the provision itself says that it applies to those sites of a village, which are assessed to land revenue, meaning thereby, that the same are not abadi deh, because abadi deh is never assessed to land revenue and, secondly, even if it be assumed that jurisdiction of Revenue Officer extends to partition of abadi deh by virtue of the aforesaid provision, as is being canvassed on behalf of the petitioner, then there should be no manner of doubt that the jurisdiction of a Revenue Officer must extend to a village site, assessed to land revenue. 6. In view of the abovesaid position, petition is dismissed. (Surjit Singh) Judge 20th July, 2010 (rajni)