Allahabad High Court
Daya Shankar And 5 Others vs Board Of Revenue And 6 Others on 30 September, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 12.09.2022 Court No. - 52 Delivered on 30.09.2022 Case :- WRIT - B No. - 895 of 2022 Petitioner :- Daya Shankar And 5 Others Respondent :- Board Of Revenue And 6 Others Counsel for Petitioner :- Sanjai Kumar Pandey Counsel for Respondent :- C.S.C.,Santosh Kumar Tiwari,Shardendu Kumar Pandey Hon'ble Chandra Kumar Rai,J.
1. Heard Mr. Sanjai Kumar Pandey, learned counsel for the petitioners, learned Standing Counsel for respondent Nos.1, 2, 3, 6 and 8, Mr. S.K. Tiwari for respondent No.4 and Mr. S. K. Pandey, learned counsel for respondent No.5.
2. Brief facts of the case are that plaintiff-respondent No.4 filed a case under Section 176 of the U. P .Z. A. & L. R. Act for partition of plot No. 364 area 0.683 hectare. There was defect in the suit as such, suit was dismissed with liberty to file a fresh suit vide order dated 27.07.2012. A fresh Suit has been filed by plaintiff-respondent No.4 on 20.11.2014 in which petitioners were plaintiff/defendants have filed their written statement and declined plaint allegations. Trial Court/Sub-Divisional Officer, Bilsi, Badaun considering the evidence on record dismissed the plaint suit vide judgment and decree dated 29.03.2016. Against the judgment and decree dated 29.03.2016, passed by trial court plaintiff-respondent No.4 filed an appeal before the Court of Commissioner and the Additional Commissioner vide judgment and decree dated 07.09.2017 allowed the suit, setting aside the judgment and decree of trial court dated 29.03.2016 and remanded the matter back before trial court with direction to decide the matter afresh after providing opportunity of hearing and leading evidence to both the parties. After remand, the trial court, registered the suit under Section 116 of the U.P. Revenue Code 2006 and decided the suit vide judgment and decree dated 10.09.2018 passing preliminary decree in the suit. Trial Court after passing the preliminary decree in disputed plot No.364 summoned the Lekhpal for filing kurra in the suit. Petitioners challenged the order of the trial court dated 10.09.2018 by way of Revision before the Revisional Court, which was dismissed vide judgment and order dated 10.08.2021 on the ground that trial court has already passed final decree on 22.03.2021 as such Revision is not maintained against the preliminary decree passed by the trial court. The Lekhpal prepared the Kurra on 05.10.2018 and the same was filed before the trial court on 28.09.2018. Trial Court further invited objection of the parties to the kurra accordingly, petitioner Nos.5 and 6 filed their objections against the kurra on 22.10.2018 and petitioner Nos. 2 and 4 filed their objection against the kurra on 18.01.2018 and by their objection, they prayed that kurra dated 18.09.2018 and 05.10.2018 be rejected. Lekhpal was examined before the trial court. Trial Court heard the objection filed by the petitioners to the kurra and found that kurra has been wrongly prepared and submitted as such kurra submitted by the area Lekhpal was rejected vide order dated 25.03.2019 and the area Lekhpal was again directed for making proper spot inspect and prepared kurra in accordance with law as provided under the Act and Rules. Plaintiff-respondent No.4 aggrieved with order dated 25.03.2019 filed a Revision under Section 210 of the U.P. Revenue Code, 2006 before the Commissioner, but there was no interim order in the Revision, as such Area Lekhpal filed a fresh kurra before the trial court on 13.03.2020. After submission of fresh Kurra dated 13.03.2020 Additional Commissioner Bareilly, Division Bareilly without considering the material facts allow the Revision filed by contesting respondent vide order dated 24.02.2021 setting aside the order dated 25.03.2019 and sent the matter back before the trial court and proceed further according the Kurra dated 28.09.2018/5.10.2018. Petitioners challenged the order dated 24.02.2021 passed by Additional Commissioner through Revision before respondent No.1 but no order has been passed in the Revision and trial court proceeded with the matter in pursuance of the order dated 24.02.2021 and passed final order/decree on 22.03.2021/31.03.2021. Petitioners challenged the order dated 10.09.2018/ 22.03.2021/ 31.03.2021 through Appeal before respondent No.2 under section 207 of the U.P. Revenue Code, 2006, who dismissed the Appeal vide order dated 10.08.2021. Against the appellate court judgment dated 10.08.2021 as well as judgment and decree passed by the courts below Second Appeal under section 208 of U.P. Revenue Code, 2006 preferred by the petitioners was also dismissed on the same ground vide order dated 21.02.2022. Hence this writ petition.
3. This Court after hearing the writ petition for admission passed the following interim order dated 30.05.2022:
"Heard Sri Sanjai Kumar Pandey, learned counsel for the petitioners, Sri Sanjay Kumar Singh, learned Additional Chief Standing Counsel for the State respondents and Sri Santosh Kumar Tiwari, learned counsel for respondent No.4.
Learned counsel for the petitioners points out that neither the first appellate court nor the second appellate court has adverted to the objections raised by the petitioners against the decree passed by the trial court.
Learned counsel for respondent No.4 submits that the possession has been delivered pursuant to the decree of the trial court; he prays for two weeks' time to take instructions and to file a counter affidavit.
The petitioners would have two weeks thereafter for filing rejoinder affidavit.
List on 25.07.2022 as fresh.
Till the next date of listing, parties shall maintain status quo with regard to the possession over the land in question."
4. Learned counsel for the petitioners submitted that objections against the kurra prepared by Area Lekhpal on 08.09.2018/ 09.02.2018 has not been considered in accordance with law as provided under the U.P. Revenue Code and the rules framed thereunder and same has been illegally confirmed without considering the points mentioned in the objections. He further submitted that subsequent kurra prepared and filed before the trial court on 13.03.2020 has not been taken into consideration and the earlier kurra was confirmed.
5. He further submitted that provisions of Rule 109 of U.P. Revenue Code Rules, 2016 has not been considered by the courts below, as such the impugned orders are wholly illegal. He placed reliance upon the Rules 109 of the U.P. Revenue Code Rules, 2016, which is as follows:
"Rule 109 of the U.P. Revenue Code , 2016
109. Preliminary and Final decrees (Section 117)-
(1) If the plaint referred to in rule 107 or rule 108 is in order, it shall be registered as a suit and the defendants shall be called upon to file their written statements. The suit shall then be decided according to the provisions of the Code of Civil Procedure, 1908.
(2) Before making a division the court shall-
(a) determine separately the share of the plaintiff and each of the other co-tenure holders ;
(b) record which, if any, of the co-tenure holders wish to remain joint ; and
(c) make valuation of the holding (or holdings) in accordance with the circle rate fixed by the Collector applicable to each plot in the holding.
(3) If the suit is decreed, the Court shall pass a preliminary decree declaring the share of the plaintiff.
(4) After the preparation of preliminary decree the Sub Divisional Officer shall get the Kurra prepared through the Lekhpal.
(5) The Lekhpal shall submit the Kurra report within a period of one month from the date of receiving the order in this regard and at the time of preparation of Kurra he shall observe the following principles-
(a) the plot or plots shall be allotted to each party in proportionate to his share in the holding;
(b) the portion allotted to each party shall be as compact as possible;
(c) as far as possible no party shall be given all the inferior or all the superior classes of land;
(d) as far as possible existing fields shall not be split up;
(e) Plots which are in the separate possession of a tenure holder shall, as far as possible, be allotted to such tenure holder if they are not in access of his share;
(f) If the plot or any part thereof is of commercial value or is adjacent to road, abadi or any other land of commercial value, the same shall be allotted to each tenure holder proportionately and in the case of second condition the same shall be allotted proportionately adjacent to road, abadi or other land of commercial value; and
(g) If the co-tenure holders are in separate possession on the basis of mutual consent or family settlement, the Kurra shall, as far as possible, be fixed accordingly.
(6) When the report regarding Kurra is submitted by the Lekhpal, the objection shall be invited thereon and thereafter the appropriate order shall be passed by the Sub Divisional Officer after affording opportunity of hearing to the parties and considering the objection, if any, filed against the report submitted by the Lekhpal.
(7) If the report and Kurra is confirmed by the Sub Divisional Officer, the final decree shall follow it.
(8) At the stage of the final decree, the Court shall-
(a) Separate the share of the plaintiff from that of the defendant by metes and bounds.
(b) Place on record a map showing in different colours the properties given to plaintiff as distinct from those given to the defendant.
(c) Apportion the land revenue payable by the parties.
(d) Direct the record of rights and map to be corrected accordingly.
(9) If, for adjusting the equities between the parties, payment of compensation regarding trees, wells or other improvements becomes necessary, the revenue Court concerned may also pass necessary orders at the stage of final decree.
(10) The Sub-Divisional Officer shall make an endeavour to decide the suit within the period of six months and if the suit is not decided within such period, the reason shall be recorded."
6. He next submitted that first and second appellate court even have not considered objections raised by the petitioners against the decree of the trial court, as such the impugned judgment and order passed by first and second appellate court are manifestly erroneous. He also submitted that trial court in pursuance of the order dated 24.02.2021 passed by Additional Commissioner proceeded with the matter in spite of fact that petitioners have challenged the order before the Board of Revenue, but trial court without any opportunity of hearing passed the final judgment and decree on 22.03.2021/ 31.03.2021, which are wholly illegal.
7. On the other hand, contesting respondents submitted that kurra was rightly prepared by the Lekhapl and submitted before the trial court on 08.09.2018/05.10.2018. Kurra was prepared considering the provisions of the U.P. Revenue Code and Rules framed thereunder i.e. as per possession of each party over the land in question. He further submitted that proper opportunity of hearing has been afforded by the courts below to the petitioner by maintaining kurra prepared and submitted in pursuance of the judgment and decree passed by the courts below. He further submitted that suit for partition was filed in the year 2018 and petitioners are not permitted by the court to finalize the proceeding for partition. He further submitted that trial court vide order dated 25.03.2019 has rejected the kurra prepared on 08.09.2018/05.10.2018 on the technical grounds, as such the order dated 25.03.2019 was set aside vide order dated 24.02.2021. He further submitted that no interference is required against the impugned judgment and writ petition is liable to be dismissed.
8. There is no dispute about the fact that suit for partition filed under Section 176 of U.P.Z.A. & L.R. Act was decreed and order was passed for partition of kurra accordingly, kurra was prepared but petitioners filed objection against the kurra, which has been decided against the petitioners and the kurra prepared on 08.09.2018/ 05.10.2018 has been maintained by the impugned judgment.
9. Since on the basis of the objection of the petitioners to the kurra dated 28.09.2018/05.10.2018 Sub-Divisional Officer vide order dated 25.03.2019 has found that kurra dated 28.09.2018/ 05.10.2018 is legally erroneous as such the same was cancelled and Lekhpal was directed to prepare fresh kurra after making spot inspection in presence of both parties. In compliance of the order dated 25.03.2019 even fresh kurra was prepared and filed before trial court on 13.03.2020 which was according to Rule-109 of U.P. Revenue Code Rules 2016 taking into consideration the possession of the parties also, but revisonal court without considering the subsequent kurra dated 13.03.2020 has maintained the earlier kurra dated 28.09.2018/05.10.2018 which is wholly illegal and against the provisions contained under Rule 109 of U.P. Revenue Code Rules 2016. This Court in the case of Paras Nath vs. Board of Revenue U.P. At Allahabad and others 2019 (144) R.D. 604 has held that plots in separate possession of tenure holders have to be allotted to him, if possible. Paragraph Nos. 6, 7, 8 and 9 of the judgment are as follows:
6. A perusal of the records shows that in the plaint filed by respondent No. 5 instituting the suit registered under Section 176 of the Act, 1950, the plaintiff had himself pleaded that there had been a family settlement between the parties and the parties were in separate possession of the plots on the basis of the family settlement. The said fact was also pleaded by the petitioner as defendant in his written statement. Evidently, the issue regarding family settlement and the fact that the parties were in separate possession of the different plots or different areas of the plots was the admitted case of the parties and was before the trial court even at the time of the preliminary decree was passed by the trial court. The preliminary decree in a partition suit only determines the shares of the parties in the suit property and does not determine the possession of the parties or the portion to be allotted to them in final decree. The final decree in a suit registered under Section 176 of the Act, 1950 has to be prepared in accordance with Rule 131 of the Uttar Pradesh Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred to as, 'Rules, 1952'). Rule 131(1)(e) of the Rules, 1952 provides that in making partition of a holding into two or more portions, plots which are in separate possession of a tenure-holder shall, as far as possible be allotted to such tenure-holder if they are not in excess of his share. The petitioner may not be necessarily entitled to be allotted the portion in which he allegedly in separate possession, but the said factor had to be taken into consideration by the courts below before passing the final decree and in case the petitioner was in separate possession, the said plot had to be allotted to the petitioner, if possible.
7. In view of the aforesaid, the orders dated 4.7.2014 passed by the Deputy District Magistrate, i.e., respondent No. 3 in Case No. 15/209, 6.5.2016 passed by the Commissioner, Gorakhpur Division, Gorakhpur, i.e., respondent No. 2 in Appeal No. 1103/D-2014/C2014054901562 and 26.7.2016 passed by the Board of Revenue, U.P. at Allahabad, i.e., respondent No. 1 in Second Appeal No. 881/16 are evidently contrary to law and are hereby quashed.
8. The matter is remanded back to the trial court, i.e., the Deputy District Magistrate, Tehsil-Sadar, District-Maharajganj to pass fresh orders on the objections filed by the petitioner to the report of the Lekhpal within a period of three months from the date a certified copy of this order is produced before him by either of the parties.
9. With the aforesaid direction, the writ petition is allowed.
10. Rule-109 (5) (e) of U.P. Revenue Code Rules, 2016 is similar to that of Rule-131 (1) (e) of U.P.Z.A & L.R. Rules.
11. This Court in another case reported in 2016 (133) RD 459 Babu Ram and others Vs. Board of Revenue, Meerut and others has explained the principles provided under Rule-131 (1) (a) of the U.P.Z.A. & L.R. Rules and has held that provision of Rules have not been followed as such the impugned orders passed for preparation of kurras as well as appellate orders were set aside and matter was remitted back before trial court for obtaining fresh kurra and for fresh proceeding for final decree. Paragraph Nos 8, 9, 10 and 11 of the judgment are as follows:
"8. Rule 131 (1) (a) provides that the valuation of the portion allotted to each party shall be proportionate to his share in the holding. The petitioners took plea that plot 55 situates on Dastoi-Hapur main road and has commercial value. The respondents have not denied this fact but stated that in east of plot 67 also there is a road. Lekhpal, in his statement, has admitted that this eastern road is a kachcha road and in between this road and plot 67 there is 10 feet wide nala. Market value of plot 55 and 67 cannot be said to be equal. According to the principles under Rule 131 (1) (a), valuation of the portion allotted to each party shall be proportionate to his share in the holding. Assistant Collector is not justified in allotting share to some of the co-sharers giving frontage on roadside in plot 55 and totally depriving the petitioners from plot 55. Supreme Court in M.L. Subbaraya Setty v. M.L. Nagappa Setty, (2002) 4 SCC 743, held that the legal position is well settled that on mere severance of status of joint family, the character of any joint family property does not change with such severance. It retains the character of joint family property till partition. We may also clarify that the direction that the present possession of the parties shall be respected as far as possible also does not mean that if the plaintiff is not in possession of any immovable property and the same are in possession of the defendants, he could not be allotted the immovable property even though he is so entitled as per his share. If that was so, the words "as far as possible" in the said direction would become redundant.
9. Plot 54 is adjacent to plot 55 and form a compact area on the spot. Plot 55 has a big frontage on Dastoi-Hapur road. Total area of plot 54 and 55 is 1.0880 hectare. Tenure holders of kurra-1 together have 17/30 share. They were allotted an area of 0.8381 hectare in plots 54 and 55. The petitioners together have 7/30 share but they were not allotted any land in plots-54 and 55. The principles as provided under Rule 131 (1) (a) have not been followed, in as much as the petitioners have been deprived from land of commercial value.
10. In final decree 8 kurras were prepared. Plots 54 and 55 form compact area. In the same way plots 66 and 67 form compact area. In case plots 54 and 55 are divided in north south giving frontage to all the co-sharers on Dastoi-Hapur road according to their share then partition according to principles contained under Rule 131 (1) (a) may be complied with. Similarly compact area of plots 66 and 67 may be divided in east west giving a common rast in west, according to their share.
11. In view of the aforesaid discussion, the writ petition succeeds and is allowed. The kurra dated 24.09.2014, orders of Assistant Collector dated 10.08.2015, Additional Commissioner dated 20.10.2015 and Board of Revenue, U.P. dated 12.05.2016 are set aside. The matter is remanded to Assistant Collector for obtaining fresh kurra relating partition and after hearing the parties pass fresh final decree in partition suit."
12. In view of ratio of law laid down in Paras Nath (Supra), Babu Ram (Supra) as well as according to the provisions contained under Rule 109 of the U.P. Revenue Code Rules, 2016 for preparation of the kurra, the authorities have to observe certain principles, which are mentioned in the said Rule 109 of U.P. Revenue Code Rules, 2016, but the same has not been followed and the objection against the kurra filed by the petitioners has been arbitrarily rejected by the trial court and maintained by the first and second appellate court, which is wholly illegal and against the provisions contained under Rule 109 of U.P. Revenue Code Rules, 2016, as such the impugned judgment and order dated 21.02.2022 passed by respondent No.1 i.e. Board of Revenue, U.P. Allahabad, judgment and order dated 10.08.2021 passed by the respondent No.2 i.e. Additional Commissioner, (Administration) Bareilly Mandal Bareilly, judgment dated 22.03.2021 and decree dated 31.03.2021 passed by Sub Divisional Officer, Bilsi, Budaun are wholly illegal and liable to be set aside, the same are hereby set aside. The writ petition is allowed and the matter is remanded back before the trial court to decide the objection of the petitioners dated 22.10.2018 afresh in accordance with the provisions contained under rules 109 of the U.P. Revenue Code Rules, 2016 expeditiously preferably within a period of four months from the date of production of certified copy of this order.
Order Date :- 30.09.2022 PS*