Allahabad High Court
Smt.Dulari Devi & Anr. vs State Of U.P.Through Addl.Chief ... on 10 February, 2020
Bench: Munishwar Nath Bhandari, Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 2 Case :- MISC. BENCH No. - 3824 of 2020 Petitioner :- Smt.Dulari Devi & Anr. Respondent :- State Of U.P.Through Addl.Chief Secy.Revenue Lucknow & Ors. Counsel for Petitioner :- Santosh Kumar Tripathi,Ayush Chaudhary Counsel for Respondent :- C.S.C.,Tej Singh Hon'ble Munishwar Nath Bhandari,J.
Hon'ble Manish Kumar,J.
1. This writ petition has been filed with the following reliefs:-
"I. To issue a writ, order or direction in the nature of Mandamus commanding the respondents not to construct Angan Badi Centre over the disputed land of Minjumla number i.e. Gata No. 867 'ka' and Gata No. 867 'kha' without being physically partitioned and without demarcation in accordance to procedure prescribed in Sections 116 and 117 of U.P. Revenue Code, 2006 and Rules 107 to 109 of U.P. Revenue Code Rules, 2016.
II. To issue a writ, order or direction in the nature of Mandamus commanding the respondent No. 5 to decide the partition suit bearing Case No. T-20140423014826 (Pradhan Gaon Sabha Kushmaha Vs. Dulari Devi) pending before the respondent no. 5 in accordance with the procedure prescribed in Sections 116 and 117 of U.P. Revenue Code, 2006 and Rules 107 to 109 of U.P. Revenue Code Rules, 2016 within time stipulated by this Hon'ble Court as may be deemed fit and proper.
III. To pass such other writ, order or direction as the Hon'ble Court may deem fit and proper so as to protect the rights and interests of the petitioners.
IV. Award the costs of the writ petition to the petitioners."
2. The prayer aforesaid has been made after litigation in the hands of the petitioners themselves. It is a case where Gata No. 867 exist with Gata Nos. 867-ka & 867-kha without division thus it is a land of "Minjumla". The petitioners made an application for partition of the land by invoking the provisions of the U.P. Revenue Code, 2006 & U.P. Revenue Code Rules, 2016. Application for partition was dismissed by the Competent Authority. The petitioners have preferred a Revision to challenge the order which has been admitted with issuance of notice to the other party. No interim order has been passed therein. Apart from the aforesaid litigation, petitioners even preferred a civil suit for injunction. It is with the allegation that despite purchase of land by the petitioners of Gata No. 867-ka ad-measuring 0.089 hectare, the other party is raising construction by encroaching the land belonging to the petitioners. The civil court passed the following order on 10.09.2019:-
"प्रतिवादीगण को निर्देशित किया जाता है कि वह नियत तिथि तक गाटा संख्या ८६७क रकबा ० .० ८९० हे० पर यथास्थिति बनाए रखें, पेड़ न काटे, नल और कमरे को क्षतिग्रस्त न करें I वादीगण आदेश ३९ नियम ३ क० पी०सी० की पैरवी अविलम्ब करें I प्रतिवादीगण को नियमानुसार नोटिस जारी हो I पत्रावली वास्ते आ० नि० ६ग दिनांक ०७.१०.२०१९ को पेश हो I"
3. The perusal of the order quoted above shows an injunction in favour of the petitioners to protect his right on the land ad-measuring 0.089 hectare. Gata No. 867-ka consist of not only the plants but a room thereunder. Thus, so far the land belonging to the petitioners is concerned, necessary safeguard with an injunction order has already been given by the civil court. Apart from the aforesaid two litigations, one more litigation exists in the hands of the Gram Sabha for partition of land being a case of land of Minjumla. It is pending before the Competent Authority, though prior to it, similar application moved by the petitioners was rejected.
4. The prayer of the petitioners is not to permit the respondents to raise construction without partition of the land. A further direction is sought to expedite the proceedings of the partition, initiated by Gram Sabha.
5. Learned counsel for the petitioners has made reference of certain documents to show that land of Gata No. 867 has not been divided/partitioned thus, even the authorities have taken it to be a case of disputed land for Gata No. 867-kha ad-measuring 0.025 hectare i.e. a small piece of land.
5. A reference of non-acceptance of the proposal for construction of Ambedkar Statue has also been given apart from nullifying the other proposals. The allegation is that construction of Angan Badi Kendra is yet undertaken by encroaching the land belonging to the petitioners i.e. in excess to the area of Gata No. 867-kha, ad-measuing 0.025 hectares.
6. We have considered the submission made by learned counsel for the petitioners.
7. So far the issue regarding partition of the land of Minjumla is concerned, it is pending in revision petition in the hands of the petitioners. Their application for it was earlier dismissed by the competent authority. It is however a fact that similar application in the hands of the Gram Sabha is also pending but the fact remains that without division of land, the petitioners are in occupation of the land in the portion indicated by them while maintaining the civil suit. The necessary protection to maintain his possession and that too, for total area of 0.089 hectares has already been given by the civil court. It could not be explained by the petitioner as to how they possessed one part of land when it has not yet been divided. If the petitioners have possessed one part of the land then other party can possess other part of the land to the extent of the area belonging to them.
8. It is also that if somebody is raising construction in violation of the injunction order passed by the Civil court, the petitioners are having remedy under Order 39 Rule 2A C.P.C. itself and for that writ petition would not be maintainable. It is otherwise a fact that without division of the land, as per the Revenue Rules, petitioners have occupied a portion of the land having plants and room therein. It could not be explained as to how any part of the land of Gata no. 867 has been possessed by the petitioners without its partition. It cannot be that the petitioners may possess the land without partition/division while restraining the other to occupy the remaining part of the land. The prayer made in the writ petition is otherwise nothing but to seek the overlapping reliefs in reference to the litigation already pending before different courts.
9. So far as the direction to expedite the proceedings for partition of the land on the application filed by Gram Sabha is concerned, petitioners cannot make a request for it rather for that it can be the Gram Sabha.
10. In view of the discussions made above, the course available to the petitioner is to pursue his revision petition to divide the land or if somebody has encroached the land in excess to what it belongs, to pursue the remedy under Order 39 Rule 2-A C.P.C. and not to prefer this writ petition to have multiplication of the litigation.
11. With the observation aforesaid, we dispose of this writ petition. The disposal may not be taken in any manner adverse to the petitioners for any relief sought by them in the pending litigation rather that would be decided on its merit, after taking into consideration the provisions of U.P. Revenue Code, 2006 and U.P. Revenue Code Rules, 2016.
Order Date :- 10.2.2020 Nitesh (Manish Kumar,J.) (Munishwar Nath Bhandari, J.)