Deepak Gupta, J.@mdashBoth these appeals are being decided by a common judgement since similar questions of facts and law are involved as
they arise out of the same judgement.
2. The Appellants here-in-after referred to as the Plaintiffs, directly themselves or through their predecessors-in-interest, filed a suit in the learned
trial Court claiming that they were owners in possession of the agricultural land along with Abadi Deh land situate in village Samti, Hadbast No.
616, Pargana Quintan-1, Tehsil and District Solan. According to the Plaintiffs, their common predecessor-in-interest was Ram Dia. He was
succeeded by three sons Prem Singh, Daulia and Shankar, who each had 1/3rd share in the land. Share of Prem Singh devolved upon his son Hari
Singh and after his death devolved upon Narayan Singh and Kishan Singh, who became owners of 1/6th share each. 1/3rd share of Daulia
devolved upon his legal heirs i.e. Krishan Lal, Bhagwan Dassi and Krishna. Therefore, each of them had 1/9th share in their land. Krishan Lal sold
his entire share to Kumari Kavita and Plaintiffs No. 4 and 5 by a registered sale deed and each of them became owners in possession of 1/18th
share each. 1/3rd share held by Shankar Dass S/o Ram Dia devolved upon his four heirs i.e. Man Singh, Hardev, Ganga Devi and Vidya. Hardev
is alleged to have predeceased Smt. Vidya and therefore, his 1/12th share was inherited by her. Thus Man Singh was owner of 1/12th share,
Vidya Plaintiff No. 1 had 1/5th share and Plaintiff No. 2 Ganga Devi had 1/12th share. Man Singh sold his 1/12th share to Bala Ram. It was
alleged that the land and structures of the Abadi Deh was joint and possessed by all the parties except by Defendant No. 6, who had sold his
share to Plaintiff No. 6 and therefore, on this basis the Plaintiffs claimed partition of the land. The learned trial Court passed a preliminary decree
for separate possession after determining the shares of the parties.
3. This decree was challenged in appeal before the learned District Judge, who came to the conclusion that since the Abadi Deh land had been
constructed upon the Plaintiffs were not entitled to any decree for grant of partition. He held that there was No. divisible property and hence No.
preliminary decree could have been passed.
4. As per the pleadings of the parties, the Plaintiffs have 17/36th shares i.e. almost half share in the Abadi Deh. They also claimed that they are co-
owners of the structure but the evidence led before the Courts below suggest that they have nothing to do with the structure raised on the Abadi
Deh. The learned Appellate Court came to the conclusion that the Plaintiffs had failed to show what was the extent of the vacant land and
therefore, the Plaintiffs could not claim partition.
5. A Division Bench of this Court in Kewal Ram v. Gram Panchayat Bhutti through its Pradhan and Ors. ILR 1987 HP 211, had an occasion to
construe the word and phrase ""Abadi Deh"" and held as follows:
9. ...Abadi Deh, that is, the inhabited site of the village, consists of sites on which the houses of the members of the brotherhood or proprietary
body are usually built close together, small plots attached or annexed thereto which are used for penning the cattle, storing manure or stacking
straw, empty or vacant sites unoccupied by any individual, common plots set apart for public use such as the chaupal or hujra for dharamshalas,
mosques, graveyards, burningghats, tanks, wells, etc. and public paths or ways. The village site is measured in one number for the purposes of the
revenue record and the entry in the column of ownership and occupancy will be ""Abadi Deh"". The Abadi is almost always excluded from the
operation of the Land Revenue Act, except so far as may be necessary for the record, recovery and administration of village cesses. The
proprietary body or brotherhood holds Abadi Deh in joint ownership and it is treated as the common property of the community. Still, however,
generally speaking, the greater part of Abadi Deh is in most cases indivisible and members of the community cannot call for a redistribution of the
area or for a partition according to the Khewat or ancestral shares. The members of the community, who have built their houses or ghers in the
portion of the village site for long with the assent or acquiescence of their cosharers, cannot be ousted from the sites on which they have built, in the
guise or partition. So also the portions of the land set apart by common consent for public use cannot be brought into any scheme or redistribution
or partition at the instance of any member of the community. If the village site in which such portions are comprised is assessed to land revenue,
which would be in a very rare case, the revenue authorities may determine the extent and manner to and in which the co-sharers may make use
thereof and the proportion in which expenditure if any, incurred thereon and the profits if any, derived there from are to be borne by and divided
by those persons or any of them. However, so far as empty or open sites in or about the village, unoccupied by the members of the community and
not used by them for any public purpose, are concerned, whether they are enclosed by shrubs, bushes etc. or not any member(s) of the
proprietary body can call for the partition of such vacant or open sites according to the rule applicable in a particular case which more often than
not determines the share of each proprietor therein according to the land revenue paid by him.
6. The learned District Judge relying upon the aforesaid observation came to the conclusion that Abadi Deh in most cases is indivisible and
members of the community cannot call for redistribution of the area or for a partition according to Khewat or ancestral shares. The members or the
community, who have built their houses in a portion of the village site for long with the assent or acquiescence of the co-sharers cannot be ousted
from the joint abadi land even if they have built upon the share of other co-owners.
7. Appeal No. 260 of 1998 was admitted on a number of questions of law but in my opinion the only substantial question of law of public
importance which arises is;
Whether the land/structures which stand on Abadi Deh can be subjected to partition or not?
8. The very wide proposition laid down by the Division Bench in the aforesaid case was only in the context of the Panchayati Raj Act. It cannot be
stretched to all cases. Let us take an example of a person who built a house on 100 square meters of Abadi Deh land. He leaves behind two legal
heirs. Both of them would be entitled to an equal share in the land as well as on the structure. Definitely, one of the legal heirs can file a suit against
the other for partition both of the structure and of the land. Therefore, it cannot be said that the Abadi Deh land is indivisible in all circumstances. In
fact, the Division Bench also very carefully said that in most cases Abadi land is indivisible.
9. The question in this case is slightly different. Taking the aforesaid example itself. The father did not raise any construction and the joint land is
vacant. Supposing one of the legal heirs does not settle in the village and goes somewhere else and the sole legal heir remaining in the village and
constructs his residence on the entire 100 sq. meters without any objection from the other legal heir. Then in such an eventuality the successor of
the other legal heirs, in my opinion, would not be able to claim partition having permitted one of the legal heirs to spend money and raise
construction on a portion or the entire suit land, which was joint.
10. Having held so, the question which arises is what is the effect of the aforesaid proposition of law in this case. Unfortunately, there are No. clear
cut pleadings or evidence in this regard. As held by the learned lower Appellate Court it is not even clear as to how much of the suit land is still
lying vacant. At best, the Plaintiffs can get relief only in respect of the vacant suit land and not in respect of that portion of the Abadi land over
which construction has already been raised by the Defendants.
11. It is obvious that the parties were not clear about the legal position and No. specific pleadings were made with regard to the land which was
lying vacant or constructed upon. There is, however, No. manner of doubt that the land was originally joint. The question whether there is any
divisible portion left or not will have to be decided on the basis of proper pleadings and evidence.
12. Therefore, in view of the above discussion, I find No. merit in the appeals. However, while the appeals are being dismissed liberty is reserved
to the Plaintiffs to file a fresh suit and in case they can show that there is sufficient vacant land which can be partitioned then they can file a fresh suit
for partition of the same in accordance with the principles laid down here-in-above.