Yashvir Singh Rathor, J. (Oral)

This judgment shall dispose of above noted two appeals, as the same have emanated out of the same occurrence.

CM-5731-C-2026 IN RSA-1582-2026 AND

8/CM-5817-C-2026 IN RSA-1596-2026

Prayer in these applications under Order 22 Rule 3 CPC is for impleading the legal representatives of appellant No.1 namely Hari Kishan (since deceased).

For the reasons mentioned in the applications, the same are allowed and legal representatives of appellant No.1 namely Hari Kishan (since deceased) are ordered to be impleaded as appellants in the present appeals.

Applications stand disposed of.

1. RSA No.1582 of 2026 has been preferred against the judgment and decree dated 30.01.2026 passed by learned Additional District Judge, Hisar vide which appeal preferred by the plaintiffs/respondents has been accepted and counter-claim filed by the appellants/defendants has been dismissed and the judgment and decree passed by the trial Court dated 31.08.2018 has been set aside vide which the suit for partition of the suit property instituted by the plaintiffs had been dismissed while the counter-claim instituted by the defendants has also been dismissed and consequently, the suit filed by the plaintiffs for partition of the joint holding has been decreed and a preliminary decree for partition has been passed.

2. RSA No.1596 of 2026 has been preferred against the judgment and decree dated 30.01.2026 passed by learned Additional District Judge, Hisar vide which appeal preferred by the plaintiffs/respondents has been accepted and the judgment and decree passed by the trial Court dated 31.08.2018 has been set aside vide which the suit for partition of the suit property instituted by the plaintiffs had been dismissed and the suit filed by the plaintiffs for partition of the joint holding has been decreed and a preliminary decree for partition has been passed.

3. As per version of plaintiffs, their father namely Udmi had taken half share in Khasra No.758 (1 Kanal 2 Marla) on eastern side on lease from Gram Panchayat while remaining half share was taken on lease by one Molar Ram. Defendants had purchased the leasehold rights from the son of Molar Ram qua his share but now they have illegally raised construction on the open space lying on the eastern side of the house of plaintiffs. Plaintiffs instituted a suit for permanent injunction against them but vide order dated 06.02.2017, the Court of Civil Judge, (Junior Division), held that the suit land is jointly owned by the parties and no injunction can be issued against co-sharer and the remedy with the plaintiffs is to seek partition of the joint property. It is further submitted that the defendants in their written statement had admitted that they are in possession over land measuring 391 Square Yards instead of 330 Square Yards i.e Eastern line 32.6’, Western line 66.3’, Northern line 68.6’ and Southern line 74.3’. By way of present suit, plaintiffs sought partition of the joint holding.

4. Defendants in their written statement have refuted the contents of the plaint and opposed the same preliminarily on the grounds of maintainability, Court fees and that suit is barred under Order II Rule 2 CPC. On merits, it has been admitted that father of the plaintiffs had taken half share in Khasra No.758 from Gram Panchayat on lease. One Molar Ram had constructed pucca gher and cattle shed before the consolidation proceedings and after consolidation, said Molar Ram had taken half share of the said plot on lease in Khasra No.758. There was no street towards southern side of the land taken on lease by Udmi-predecessor of plaintiffs, whereas there was a street towards southern side of the land taken on lease by Molar Ram. Accordingly, Udmi requested Molar Ram to permit him to use a portion on the eastern side of Molar Ram’s plot for installing a gate and in lieu thereof, he gave land to Molar Ram on northern side. In this way, Molar Ram came in possession of Ghair measuring Eastern line 32.6’, We