The jurisdiction of the civil court to grant decree of partition with respect to a land not being an agricultural land within the meaning of section 3(14) of the Act or a non-agricultural land, is not excluded or ousted. The civil court has jurisdiction to deal with the suit property and the preliminary decree of partition has been affirmed with the dismissal of the first appeal and SLP filed by the petitioner upto the Supreme Court.

JUDGMENT :

Sunita Agarwal, J.

Heard learned counsel for the parties.

2. The present petition is directed against the order dated 18.07.2018 passed by the court of Additional District Judge and Sessions Judge, Court No.,11, Varanasi whereby the application paper no.99-Ga filed by the petitioner under Section 151 of the Code of Civil Procedure, has been rejected.

3. The brief facts relevant to decide the controversy in hand are that the partition suit namely bearing Original Suit No.517 of 2001 (Smt. Sitamani Devi Kushwaha Vs. Rameshwar Prasad Verma) was instituted before the Court of Civil Judge (S.D.) Varanasi for partition of the house no. D-64/150 and house no. D-064/150-A and half of the plot no.456/610/2 area 0.384 Air at the western side of which, house nos. D-64/150 and D-64/150-A were constructed. The description of the suit properties at the foot of the plaint is relevant to be reproduced herein:-

edku uEcj Mh0 64@150 e; lgu tehu fLFkr eksgYyk ek/kksiqj f'koiqjok 'kgj okjk.klh ftldk okf"kZd vlslesUV 1080@&:i;k gSA

gLo pkSgn~nh tSy %&

iwjc & xyh ckngwW edku eksgu yky oxS0 o esok yky if'pe & ckmUMªh oky lEiw.kkZuUn LiksVZl LVsfM;eA

mRrj & lM+dA

nf{k.k & tehu o edku uEcj Mh0 64@150, QjhdSu

¼2½ Hkou la[;k Mh0 64@150 , e; lgu tehu fLFkr eqgYyk ek/kksiqj f'koiqjok 'kgj okjk.klh ftldk okf"kZd vlslesUV eqcfyx 1080@&:i;k gSA

gLo pkSgn~nh tSy %&

iwjc & xyh okngw edku jkelwjrA

if'pe & ckmUMªh oky laEiw.kkZuUn LiksVZl LVsfM;eA

mRrj & tehu o edku uEcj Mh0 64@150 QjhdSuA

nf{k.k & ckmUMªh oky LVsfM;eA

¼3½ Hkw[k.M la[;k 456@610@2 {ks=Qy 0-384 ,;j dk 1@2 ftlds if'pe {ks=Qy esa Hkou la[;k Mh0 64@150 o Mh0 64@150, fufeZr gS 'ks"k {ks=Qy 0-192 gsDVs;j o'kDy ijrh o lgu tehu edkukr etdwj fLFkr eqgYyk ek/kksiqj ekStk f'koiqjok 'kgj okjk.klhA^^

4. As per paragraph no.4 of the plaint, two houses namely D-64/150 and D-64/150-A were constructed by Sri Hanuman Das i.e. father-in-law of the plaintiff over his share of plot no.456/610/2 area 0.192 hectares of which total area was 0.384 hectares. The open land at the southern and north of the two houses was left as 'Sehan' of both the said houses. In paragraph no.5, it is contended that house nos. D-64/150 and D-64/150-A were constructed in an area of four Biswas and the rest of 0.142 hectares of open land was 'Sehan' land adjacent to the two houses. It was further stated in paragraph no.6 of the plaint that the name of father-in-law of the plaintiff was also recorded in the municipal records over two houses and the land was recorded in his name in the revenue records. After death of the recorded owner Sri Hanuman Das, the plaintiff sought declaration of her rights with that of the defendant to the extent of half being owner in possession thereof. As per the plaint averments, the names of the plaintiff and the defendant both were recorded as co-owners in the municipal assessment record as also the revenue records. The defendant/petitioner in the additional plea in paragraph no.16 of the written statement pleaded that the in open piece of land adjacent to the two houses, which was allegedly mentioned as 'Sehan' land in the plaint, was agricultural land to which the plaintiff had no right, title or interest. As far as the right of the plaintiff to seek partition of the suit properties, the same was denied out rightly.

5. Another suit no.191 of 1998 was also filed by the plaintiff-respondent with the relief of permanent prohibitory injunction against the defendant/petitioner praying that he may not interfere in the possession of the plaintiff over the suit properties till partition of the same.

6. Both the suits were consolidated and decided vide common judgment and decree dated 11.08.2004 passed in favour of the plaintiff. A preliminary decree of partition with respect to the three sets of the suit property as noted herein above, declaring half share of the plaintiff therein had been granted in her favour. Further, permanent prohibitory injunction has been granted restraining the defendant from interfering in the posse