Hon'ble A.P. Sahi, J Heard Sri Rajiv Kumar Srivastava, learned counsel for the petitioner, and Sri S.N. Tiwari for Respondent No.5, who has put in contest as he was the revisionist before the Board of Revenue. In view of the aforesaid position, it is not necessary to issue notice to Respondent Nos. 3 and 4 at this stage. Learned Standing Counsel and the learned counsel for the Gaon Sabha has also been heard and the matter is being disposed of finally in view of the consent of learned counsel for the petitioner and learned counsel for Respondent No.5.
The background in which the present petition has been instituted is that in a Suit for partition between the petitioner and the contesting respondent, a preliminary decree was drawn on 9.11.2009. While drawing the preliminary decree, the trial court recorded the following finding:-
^^oknh lnkuUn iq= JhukFk dk lk{; fn0 1-5-09 rFkk ftjg fnukad 22-5-09 nkf[ky i=koyh ds voyksdu ls izdV gS fd vkjkth ustkbZ esa izfroknh xq:n;ky iq= JhukFk dk [kkuxh cVokjk ds mijkUr edku xks'kkyk rFk isM+ muds va'k esa gSA JhukFk izfroknh us Hkh vius lk{; fn0 5&6&09 esa bl rF; dks Lohdkj djrs gq, viuk 'kiFk c;ku ntZ djk;k gSA^^ After having recorded the said finding, the trial Court further came to the conclusion that all the brothers had 1/4th share each and, therefore, the lots should be prepared in accordance with the possession claimed by them.
When the matter proceeded for preparation of final decree, the respondent No.5 sought a modification on the ground that the area of land besides the road should be distributed equally amongst all the 4 brothers as it is a valuable land and, as such, to that extent the preliminary decree dated 9.11.2009 should be modified. The said application was rejected as not maintainable, against which a revision was filed by the respondent No.5 and the same has been allowed by the impugned order dated 10.8.2011 accepting the claim of Respondent No.5 for allotting land to all the brothers besides the road.
Sri Srivastava, learned counsel for the petitioner, submits that the revisional court could not interfere with the preliminary decree on a miscellaneous modification application inasmuch as the remedy available if any to the respondent No.5 was, not to file a modification application but to file an appeal, if he was aggrieved by the judgment and decree of the trial court. This having not been done, the learned Member of Board of Revenue, has committed a manifest error by interfering with the declaration of shares by the trial court under the impugned order.
Having heard learned counsel for the parties, the arguments raised on behalf of the petitioner appears to be correct inasmuch as if the respondent No.5 was aggrieved by the finding so recorded and extracted herein above, then the remedy of the respondent was to file a regular Appeal under the provisions of Section 331 of the U.P. Zamindari Abolition & Land Reforms Act. It also needs to be explained that if the respondent contends that the order dated 9.11.2009 records facts wrongly or construes the statement of the said respondent wrongly, then the same would require the institution of a regular appeal to assail the same on the basis of evidence on record. The modification application was not maintainable for the nature of the relief that was sought to be claimed. The aforesaid finding had become final and the same could be upturned only through an Appeal and not by a miscellaneous application for modification. The revision filed against the same, therefore, was not maintainable and the learned Member committed a manifest error by allowing the revision and modifying the decree dated 9.11.2009. Learned counsel for respondent No.5 submits that this being the legal position, he does not propose to file any counter-affidavit at this stage and he may be granted liberty to avail of the remedy in accordance with law.
Accordingly, the order dated 10.8.2011 passed by the Board of Revenue is set aside with liberty to respondent No.5 to avail of such remedies that are available to him in law in the light of the observations made herein above.
With the aforesaid directions, the writ petition is allowed.
Dt. 11.10.2011 Irshad