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Rajasthan High Court – Jaipur
Smt Gayatri Sharma W/O Shri Bhagwan … vs Shri Deen Dayal Tiwari S/O Late Shri … on 21 April, 2025
Author: Narendra Singh Dhaddha
Bench: Narendra Singh Dhaddha
[2025:RJ-JP:16330]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 710/2012
1. Smt Krishna Sharma D/o Shri Deen Dayal Tiwari, W/o
Shri Krishan Kumar Sharma, Aged About 43 Years, R/o
C/o Roop Narayan Ji Dhabai, R/o House No. 2351, Near
Rathi Dharamshala, Dula House, Bapu Bazar, Jaipur.
2. Smt. Renu D/o Shri Deen Dayal Tiwari, Aged About 37
Years, R/o Ward No. 9, Mahandi Ka Bass, Near Primary
School, Near Chatriyon, Amer, District Jaipur.
----Appellants
Versus
1. Smt. Gayatri Sharma W/o Shri Bhagwan Sahai D/o Shri
Deen Dayal Tiwari, R/o 71/105, Near Kendriya Vidhyalaya
No. 5, Agarwal Farm, Mansarovar, Jaipur.
2. Shri Deen Dayal Tiwari S/o Shri Gopal Sahai, Aged About
68 Years, R/o Ward No. 24, Village Mahal, Post Jagatpura,
Tehsil Sanganer, District Jaipur. (Deceased And Deleted)
3. Shri Ashok Tiwari S/o Shri Deen Dayal Tiwari, Aged About
45 Years, R/o The Bank Of Rajasthan, Pratap Chowk,
Baran, District Baran (Rajasthan).
4. Shri Raj Kumar Tiwari S/o Shri Deen Dayal Tiwari, Aged
About 46 Years, R/o Plot No. 31, Shalimar Marg Vistar,
Behind Heerapura Power House, 80 Feet Road, Near
Rishab Public School, Ajmer Road, Jaipur.
5/1. Shri Mahendra Kumar Jain,
5/2. Shri Jitendra Kumar Jain,
5/3. Shri Pawan Kumar,
Sons Of Shri Madan Lal Jain, R/o Banarsi Das Bhawan,
Chaura Rasta, On The Shop No. 344-345, Jaipur.
6. Shankar Bhawan Grah Nirman Shakar Samiti Ltd,
Through Administrator, Sub Registrar Cooperative Society,
Mini Secretariat, Bani Park, Jaipur.
7. Hasanpura Grah Nirman Shakar Samiti Ltd., Through
Chairman/secretary, R/o Vishwafame Chamber, Before
Ajmer Puliya, Hathroi, Ajmer Road, Jaipur.
8. Court Of Authorized Officer Zone 9, Jaipur Development
Authority Address Ram Kishore Vyas Bhawan, Jawahar Lal
Nehru Marg, Jaipur.
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----Respondents
Connected With
S.B. Civil First Appeal No. 705/2012
Smt Gayatri Sharma W/o Shri Bhagwan Sahai D/o Shri Deen
Dayal Tiwari, Resident Of 71/105, Near Central School No.,
Agarwal Farm, Mansarovar, Jaipur (Raj.)
----Appellant
Versus
1. Shri Deen Dayal Tiwari S/o Late Shri Gopal Sahai, Aged
About 62 Years, Resident Of Ward No.24, Village Mehal,
Post Jagatpura, Tehsil Sanganer, Distt. Jaipur (Raj.) (Died
During Pendency Of Appeal).
2. Shri Ashok Kumar Tiwari S/o Shri Deen Dayal Tiwari,
Aged About 45 Years, Resident Of The Bank Of Rajasthan,
Pratap Chowk, Baran, Distt. Baran (Raj.)
3. Shri Raj Kumar Tiwari S/o Shri Deen Dayal Tiwari, Aged
About 40 Years, Resident Of Plot No. 31, Shalimar Marg
Vistar, Behind Heerapura Power House, 80 Feet Road,
Near Rishabh School Ajmer Road, Jaipur (Raj.)
4. Smt. Krishna Sharma W/o Shri Krishna Kumar Sharma
D/o Shri Deen Dayal Tiwari, Aged About 37 Years,
Resident Of Plot No. 6/301, Malviya Nagar, Jaipur 302017.
5. Smt. Renu W/o Suresh Saini D/o Deen Dayal Tiwari, Aged
About 31 Years, Resident Of Ward No.9, Mehendi Ka Baas,
Near Primary School, Near Chatriyon, Amer, District
Jaipur (Raj.)
6. Madan Lal Jain (Since Deceased), Through Legal
Representatives.
6/1. Shri Mahendra Kumar Jain S/o Madan Lal Jain, Resident
Of Banarasi Das Bhawan Choura Rasta, Above Shop No.
344-345, Jaipur (Raj.) (Since Deceased).
6/1/1. Sumit Jain S/o Late Shri Mahendra Kumar, Aged About 43
Years, Resident Of Banarasi Das Bhawan Choura Rasta,
Shop No. 344-345, Jaipur (Raj.)
6/2. Shri Jitendra Kumar Jain S/o Madan Lal Jain, Resident Of
Banarasi Das Bhawan Choura Rasta, Above Shop No. 344-
345, Jaipur (Raj.)
6/3. Shri Pawan Kumar S/o Madan Lal Jain, Resident Of
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Banarasi Das Bhawan Choura Rasta, Above Shop No. 344-
345, Jaipur (Raj.) (Since Deceased)
6/3/1. Sanjeev Jain S/o Late Shri Pawan Kumar Jain, Aged About
34 Years, Resident Of Banarasi Das Bhawan Choura
Rasta, Shop No. 344-345, Jaipur (Raj.)
7. Shankar Bhawan Grah Nirman Sehkari Samiti Ltd.,
Through Administrator, Deputy Registrar Sehkari Samiti,
Mini Secretariat, Bani Park, Jaipur (Raj.)
8. Hasanpura Garh Nirman Sehkari Samiti Ltd., Through
President/secretary, Before Vishwa Fem Chamber, Ajmer
Puliya, Hathroi, Ajmer Road, Jaipur (Raj.)
9. Learned Court Of Authorized Officer, Zone-9, Jaipur
Development Authority, Ramkishore Vyas Bhawan, Jln
Marg, Jaipur (Raj.)
----Respondents
For Appellant(s) : Mr. N K Maloo, Sr. Adv. assisted by
Mr. Harsh Pratap Singh, Adv. &
Mr. Vishnu Bohra, Adv.
Mr. T C Sharma, Adv. with
Mr. Uddeshya Vijaywargia, Adv.
Mr. R K Daga, Adv. with
Mr. R S Chouhan, Adv.
For Respondent(s) : Mr. Palash Srivastav, Adv.
Mr. Aatish Jain, Adv.
Mr. Nawal Kishore Saini, Adv. for
Mr. S.N. Kumawat, Adv.
Mr. Lokesh Tiwari, Adv.
HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Judgment
DATE OF JUDGMENT 21/04/2025
REPORTABLE
With the consent of learned counsel for the parties, the
appeals are being decided by this common judgment.
These appeals arise out of the judgment and decree dated
12.10.2012 passed by Additional District Judge No.7, Jaipur
Metropolitan, Jaipur (for short 'the trial Court') in civil suit No.
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68/2006 (56/2006), whereby the suit filed by the plaintiff-Smt.
Gayatri Devi (for short 'the plaintiff') for partition as well as
permanent injunction was partly allowed in her favour and
preliminary decree was passed.
Brief facts of the case are that the eldest daughter of Deen
Dayal i.e. Smt. Gayatri Sharma filed a civil suit for partition and
permanent injunction against the defendants about the ancestral
property. The pedigree is showing the relationship of parties in
para No. 1 of the plaint. It was further mentioned in the para 2 of
the plaint that the properties left by plaintiff's grand father Late
Shri Gopal Sahai son of Shri Raghu Nath Sahai were joint
immovable properties situated in heart of Jaipur City Chokri i.e.
Nohra House Muncipal No.1766 Vishvesharji Sauthli Walon Ka
Rasta, inside Deewan Bhagchandra Ki Gali, Chaura Rasta, Jaipur
and agricultural land situated in Tehsil-Sanganer, Village Mahal
Patwar Jagatpura, Jaipur bearing old khasra No. 82 & new khasra
No. 454 admeasuring 0.20 hectare, khasra No. 455 admeasuring
3.01 hectare, khasra No. 456 admeasuring 0.01 hectare Gair
Mumkin Chah, Khasra No. 457 admeasuring 3.36 hectare total
admeasuring 6.58 hectare. It was also mentioned that said
property was undivided and the plaintiff was having 1/6th share
therein.
Defendant Nos. 1 and 2 had filed joint written statement and
defendant No. 3 filed separate written statement and mentioned
father and brothers of the plaintiff alleged their rights based
therein on the customary adoptions, Will and mutation. It was also
mentioned that they have sold the property by way of one
agreement in favour of defendant No. 8 i.e. Hasanpura Grah
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Nirman Sahkari Samiti. Prior to this suit, disputed property was
mutually partitioned. Plaintiff received the amount of her share at
the time of marriage, so, she had no right to file the present suit.
Defendant No. 8 also filed written statement and mentioned
that Hasanpura Samiti had purchased the property by way of one
agreement and allotted the plot to their members and gave
possession to them also. It was also mentioned that present suit is
related to agricultural land. So, civil court had no jurisdiction to try
it.
Defendant Nos. 4 and 5 also filed their written statement and
claimed 1/6th share alongwith plaintiff in the disputed property.
On the basis of the pleadings of the parties, the trial Court
framed following issues-:
1- vk;k oknuh dk okn fo:) izfroknh la[;k&1 rk 5 ckcr~
rdklek fMØh fd;k tkdj okn i= ds en la[;k 2 d o 2
[k esa of.kZr lEifRr esa 1@6 Hkkx ?kksf'kr fd;k tkos ,oa ckbZ
ehV~l ,.M ckmUM~l lEifRr dk rdklek djk;k tk;s \
2- vk;k oknuh fookfnr lEifRr esa ls 1@6 fgLls dk
okLrfod dCtk fnyk;k tkos rFkk okn i= dh en la[;k 2
d ,oa 2 [k esa of.kZr lEifRr ls gksus okyh vk; esa ls Hkh
1@6 fgLlk fnyok;k tkos\
3- vk;k oknuh bl vk/kkj ij LFkkbZ fu'ks/kkKk izkIr djus dh
vf/kdkj.kh gS fd okn i= ds en la[;k 2 d ,oa 2 [k esa
of.kZr lEifRr dks rk QSlyk okn fdlh Hkh izdkj ls
gLrkUrfjr ugha djs ;fn mlesa fdlh Hkh izdkj dk fuekZ.k o
dk;Z djs\
4- vk;k ekuuh; U;k;ky; dks okn dh lquokbZ dk {ks=kf/kdkj
izkIr ugha gS\
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5- vk;k okn i= ds en ua- 2 ¼d½ esa of.kZr Hkwfe ljdkj dh
[kkrsnkjh esa gS] blfy, okn drbZ pyus ;ksX; ugha gS\
6- vk;k oknuh us /kkjk 90&ch ds rgr ikfjr vkns"k ls
pqukSrh ugha nh blfy, okn drbZ pyus ;ksX; ugha gS\
7- vk;k oknuh us U;k;"kqYd de vnk dh gS\
8- vk;k okn i= ds en ua- 2 ¼d½ esa of.kZr lEifRr dk
foHkktu iwoZ esa gks pqdk gS blfy, okn pyus ;ksX; ugha gS\
9- vk;k izfroknh ua- 2 o 3 dks Jherh egrkc nsoh ds
vf/kdkj vUrfjr gks pqds gSa\
10- vk;k izfroknh ua- 4 o 5 okn i= ds en ua- 2d o 2 [k
esa 1@6&1@6 fgLlk o dCtk izkIr djus dh vf/kdkj.kh gSa\
11- vk;k okn i= ds en ua- 2 ¼[k½ esa of.kZr d`f'k Hkwfe
eq"rdkZ lEifRr ugha gSA blfy, okn pyus ;ksX; ugha gS\
12- vk;k izfroknh ua- 8 us [kljk ua- 45 esa ls 80 gsDVs;j
[kljk ua- 457 dh 3-36 gSDVs;j Hkwfe Jherh ewyh nsoh]
lhrkjke] Jherh esgrkc nsoh ls tfj;s bdjkjukek Ø; dj
vius lnL;ksa dks vkoaVu dj dCtk ns fn;k gS ] blfy, okn
pyus ;ksX; ugha gS\
13- vk;k izfroknh la[;k& 8 dks dfFkr bdjkjukes ds vk/kkj
ij fookfnr Hkwfe esa dksbZ LokfeRo dk vf/kdkj izkIr gksrk gS\
14- vuqrks'k\
Learned Sr. counsel for the appellants as well as learned
counsel for the respondents jointly submit that trial Court had
committed an error in deciding the issue No. 4 that civil Court had
no jurisdiction to adjudicate the matter relating to agricultural
land. Learned Sr. counsel for the appellants as well as learned
counsel for the respondents also submit that present suit was a
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composite suit. There is no dispute with regard to share between
the parties. It is an admitted position that disputed agricultural
land belongs to the late Gopal Sahai. Legal heirs of the Deen
Dayal had equal share in the disputed property. Learned Sr.
counsel for the appellants as well as learned counsel for the
respondents also submit that on account of composite suit the trial
Court had to decide the share of the parties with regard to
agricultural land.
Learned Sr. counsel for the appellants as well as learned
counsel for the respondents further submits that as per the
Section 54 of the Civil Procedure Code, 1908 as well as the
Rajasthan Tenancy Act and other tenancies Law, the trial Court
had to draw the preliminary decree with regard to agricultural land
and direct the District Collector or any other Gazetted officer
subordinate to District Collector who may be deputed by him on
his behalf for partition of the suit property in accordance with
Section 54 of the Code of Civil Procedure, 1908 as well as
Rajasthan Tenancy Act.
Learned Sr. counsel for the appellants as well as learned
counsel for the respondents also submits that during the pendency
of this appeal Deen Dayal has died. So, share of legal heirs of
Deen Dayal should be modified to 1/5th instead of 1/6th. They
have prayed to modify the judgment and decree dated 12.10.2012
passed by the trial Court.
Learned counsel for the appellants has placed the reliance
upon the judgment passed in case of Janki Devi Vs. Mani Ram
& Ors. in civil regular first appeal No. 106/90 decided on
11.02.2000.
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I have considered the arguments advanced by learned
counsel for the appellants as well as learned counsel for the
respondents.
It is an admitted position that present suit filed by Smt.
Gayatri Sharma with regard to partition and permanent injunction
of the immovable property as well as agricultural land as
mentioned in para 2 of the plaint. The trial Court vide judgment
and decree dated 12.10.2012 committed an error while deciding
the issue No. 4 and gave liberty to the appellants as well as
respondents to file partition suit before the revenue Court.
In my considered opinion, trial Court should have decided
the shares of the parties with regard to agricultural land.
Appellants as well as respondents, who are legal heirs of the Deen
Dayal, are entitled to get 1/5th share in the property which is
mentioned in para 2 of the plaint.
Accordingly, both the appeals are partly allowed and the
judgment and decree dated 12.10.2012 passed by the trial Court
is modified and trial Court is directed to send the matter for
division of the agricultural land to the District Collector, Jaipur with
a direction to partition the property as 1/5th share between the
legal heirs of the Deen Dayal as per the Rajasthan Tenancy Act or
other tenancies Law as may be applicable to the agricultural land
and thereafter to proceed in the matter for preparation of final
decree, in accordance with law.
Pending application(s), if any, stand(s) disposed of.
(NARENDRA SINGH DHADDHA),J
Tahir/105-106
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