The main legal point established is that in most cases, Abadi Deh is indivisible, and the land/structures standing on Abadi Deh may not be subjected to partition in certain circumstances.

JUDGMENT :

DEEPAK GUPTA, J.

1. Both 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, burning ghats, 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 gr