JUDGMENT S.N. Srivastava, J.
1. Impugned herein is the order dated 28.7.2005 passed by Deputy Director Consolidation whereby revision preferred by petitioner was dismissed and order dated 12.3.2003 and 19.10.2004 passed by Consolidation Officer and settlement Officer Consolidation respectively were lent affirmance.
2. It would appear from the record that the dispute revolves round Chak no. 65 situated in village muzaffarpur Pargana Nizamabad Tahsil Sadar District Azamgarh of which Gorakh Rai, father of the parties was the recorded tenure holder. The disputants are three brothres namely, petitioner Diwakar Rai and respondents Vijay Bahadur Rai and Sudhakar Rai. The Asstt. Consolidation officer by means of order dated 8.7.1991 passed order by which all the three sons were pronounced successors of Gorakh Rai of the chak no. 65, and the said chak was partitioner to the extent 1/3 share each. There is no dispute in so far as shares of the contesting parties are concerned.
3. The learned counsel for the petitioner argued that there is no provision for partition of Chak in the entire scheme of the U.P. Consolidation of Holdings Act and that the only provision in the Act is contained in Section 9-C of the Act which contemplates partition of holding. He further argues that in case the partition has not been effected on publication of record under Section 9 of the U.P Consolidation of Holdings Act and chak was carved out in the allotment proceeding, in that event, the chak cannot be partitioned. It is lastly argued that the impugned orders by which chak was partitioned by the consolidation authorities are vitiated by reason of being without jurisdiction.
4. I have considered the arguments advanced across the bar and have gone through the materials on record with the assistance of the learned counsel.
5. Form a perusal of scheme of Consolidation of Holdings Act, it crystallizes that annual register is subjected to revision and record are prepared under Section 10 of the U.P. Consolidation of Holdings Act. Section 10 of the Act being germane is quoted below.
10 Preparation and maintenance of revised annual registers.- (1) The annual register shall be revised on the basis of the orders passed under Sub-section (1) and Sub-section (2) of Section 9-A. It shall thereafter be prepared in the form prescribed and published in the unit.
(2) Where any entry in the annual register, published under Sub-section (1), is modified in pursuance of an order passed under this Act or under any other law; a reference to the order alongwith an extract of its operative portion shall be noted against the said entry.
6. It is further explicit from a perusal of the scheme that in case any cause of action arises thereafter, the same shall be dealt with according to provision embodied in Section 12 of the Act. Section 12 being relevant is quoted below.
12. Decision of matters relating to changes and transactions affecting right or interests recorded in revised records.-
(1) All matters relating to changes to changes and transfers affecting any or the rights or interests recorded in the revised records published under Sub-section (1) of Section 10 for which a cause of action had not arisen when proceeding under Section 7 to 9 were started or were in progress, may be raised before the Assistant Consolidation Officer as and when they arise, but not later than the date of notification under Section 52, or under Sub-section (1) of Section 6.
(2) The provisions of Sections 7 to 11 shall mutantis mutandis, apply to the hearing and decision of any matter raised under Sub-section (1) as if it were a matter raised under the aforesaid sections.
Section 12 as quoted above, envisages that all matters relating to changes and transactions affecting rights or interests recorded in the revised records published under Section 10(1) for which a cause of action had not arisen and proceedings under Sections 7 to 9 were started or were in progress, may be raised before Asstt. Consolidation Officer as and when they arise but not later than the date of notification under Section 52 or under Sub-section (1) of Section 6. after allotment of chaks, proceedings came to a close and possession was handed over.
7. In the present, it brooks no dispute that Gorakh Rai, father of the petitioners and contesting Opp. parties was recorded in the final revised record and cause of action arose after his death and all the three sons of Gorakh Rai succeeded their respective 1/3rd shares in the chak, and by this reckoning, the cause of action for partition arises after preparation of final record under Section 10 of the Act and hence the dispute could be raised under Section 112 of the Act. It is further obvious from perusal of Section 12(2), that the provisions of Section 7 to 11 shall mutatis mutandis apply to the decision on any matter raised under Sub-section (1) of Section 12 if it were a matter raised under the aforesaid section. In this perspective, considering that Sections 7 to 11 have been made applicable to the provisions of Section 12 of the Act, a dispute shall be deemed to have arisen within the province of Section 12 of the Act. The matter of partition of holding is contemplated under Section 9-C of the U.P.C.H. Act which runs as under:
Partition of Joint Holdings.- (1) The Assistant Consolidation Officer, or the Consolidation Officer, may partition joint holdings under Section 9-A, notwithstanding anything to the contrary contained in Section 178 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, or any other law, and may also partition the same suo motu.
(2) The partition of joint holdings shall be effected on the basis of shares, provided that where the tenure holders concerned agree, it may be effected on the basis of specific plots.
8. The provisions for partition applicable to the holding of a tenure holder under Sections 9 and 12 of the U.P. Consolidation of Holdings Act will also be applicable to a chak of which a tenure holder was given possession after preparation of new record of right under Section 27 in case a cause of action arose thereafter and before notification under Section 52 of the U.P. Consolidation of Holdings Act.
9. At this stage, new revenue records are prepared under Section 27 of the U.P. Consolidation of Holdings Act. And right, title and interest of tenure holder cease to exist in the erstwhile plots and same right are created under Section 30 of the U.P. Consolidation of Holdings Act. In this regard, Section 30(a), (b) and (e) of the U.P. Consolidation of Holdings Act may be referred and the same being relevant are excerpted below.
30. Consequences which shall ensue on exchange of possession.- With effect from the date on which a tenure holder enters, or is deemed to have entered into possession of the chak allotted to him, in accordance with the provisions of this Act, the following consequences shell ensue-
(a) the rights, title, interest and liabilities-
(i) of the tenure-holder entering, or deemed to have entered into possession, and
(ii) of the former tenure-holder of the plots comprising the chak, in their respective original holdings shall cease; and
(b) the tenure holder entering into possession, or deemed to have entered into possession, shall have in his chak the same rights, title, interests and liabilities as he had in the original holding together with such other benefits or irrigation from a private source, till such source exists, as the former tenure holder of the plots comprising the chak had in regard to them;
x x x x x x x x x x x x
(e) the encumbrances, if any, upon the original holding of the tenure-holder entering, or deemed to have entered, into possession, whether by way of lease, mortgage or otherwise, shall, in respect of that holdings, cease, and be created on the holdings, or on such part thereof, as may be specified in the final Consolidation Scheme.
Under Section 30(b) of the U.P. Consolidation of Holding Act, is clearly provided that a tenure holding entering possession or deemed to have entered into possession shall have in his chak the same right, title, interest and liabilities as he had in the original holding together with such other benefits of irrigation from a private source till such source exists as the former tenure holder of the plots comprising the chak had in regard to them. Section 30(e) of the Act also makes it clear that encumbrances if any upon the original holding of the tenure holder entering or deemed to have entered into possession, whether by way of lease, mortgage or otherwise shall in respect of the holding cease and be created on the holdings or on such part thereof as may be specified in the final consolidation scheme. It is clear from the U.P.C.H. Act that a tenure holder in whose favour the final records were published under Section 10 of the U.P.C.H. Act and new records of rights are prepared under Section 27 he will have the same rights, in so far as new holding after allotment of chak is concerned.
10. In view of the above, this Court does not agree with the arguments of the learned counsel for the petitioner that right of partition is available to a tenure holder of the holdings and not of chak holdings. Once the possession in given on the basis of new record of right, chak, attains the status of a holding and same rights which had accrued to a tenure holder on the basis of final record prepared under Section 10 will accrue to the same tenure holder in so far as chak which is called as holding after handing over possession on the chak allotted to a tenure holder in the consolidation scheme.
11. In the galaxy of the above provisions and regard being had to scheme of U.P. Consolidation of Holdings Act, it leaves no manner of doubt that the provision of partition of a joint holding is applicable on all fours to the partition of a chak if cause of action or changes arise at all stages i.e. on publication of record under Section 9, after preparation of revised record under Section 12 of after possession is handed over after carvation of chak and preparation of new record of rights under Section 27 of the U.P.C.H. Act. The right of parties will apply till a notification under Section 52 of the U.P. Consolidation of Holdings Act is made. In the present case Gorakh Rai father of the petitioner and contesting Opp. Parties was the tenure holder in whose name chak was allotted and who had taken possession of the new chak in accordance with law. The aforesaid Gorakha Rai died before notification under Section 52 of the U.P. Consolidation of Holdings Act and chak which became holding of Gorakh Rai after taking possession was inherited by petitioner and contesting Opp. Parties. The cause of action arose thereafter as all the brothers were not ready to keep the holding joint and hence application was moved and chak was partition. This Court does not agree with the argument of the learned counsel of the petitioner that chak cannot be partitioned.
12. On merits also, it is borne out from the record as also from a perusal of order dated 26.7.1996 passed by Collector/District Deputy Director Consolidation that compromise relied upon by the petitioner was not acceptable to all the parties. The order passed by District Deputy Director Consolidation refusing to act on the compromise between the parties has attained finality and cannot be dug out for being acted upon. It would appear that by the impugned order, the partition was effected in such manner that all the three brothers got their land after partition main road and canal and as such the impugned orders do not suffer from any blemish of error of law apparent on the face of record. However, as is clear from the materials on record that one of the brother had already constructed a house. While taking into reckoning the house constructed on apart of land in dispute, in case partition is effected that portion of the land on which house was constructed may be allocated to the share of that brother. This will not impinge upon the partition already made in accordance with law. In case the brother concerned who had constructed house on a particular land, was not allotted the hose over that land allotted by the impugned order, he may move application before deputy director consolidation for redressal of his grievance to that extent only.
13. In view of above discussion, it is held that the chak could also be partitioned before notification under Section 52 of the U.P. Consolidation of Holdings Act in case cause of action for partition arises.
14. As a result of foregoing discussion, the writ petition being devoid of merit is dismissed accordingly subject to the above observations. There will be no order as to costs.