Court No. - 45
Case :- WRIT - B No. - 991 of 2019 Petitioner :- Jayram Respondent :- State Of U P And 5 Others Counsel for Petitioner :- Satyendra Pandey Counsel for Respondent :- C.S.C.,Kamlesh Kumar Mishra,Tariq Maqbool Khan
Hon'ble Salil Kumar Rai,J.
Heard Sri Satyendra Pandey, for the petitioner and Sri Kamlesh Kumar Mishra, for respondent no. 5.
The facts of the case are that respondent no. 5 instituted a partition suit under Section 116 of the Uttar Pradesh Revenue Code, 2006 for partition of the suit property claiming that he and the petitioner were co-tenure holders of the suit property having 1/2 share each. The petitioner contested the aforesaid suit by filing his written statement wherein he admitted that the petitioner and respondent no. 5 had 1/2 share each in the suit property but alleged that the suit property had already been partitioned between the parties through a family settlement. The trial court vide its judgment and decree dated 25.4.2017 decreed the suit filed by respondent no. 5 and determined the share of the petitioner and respondent no. 5 as 1/2 each in the suit property and directed that the final decree be prepared. Subsequently, the concerned Lekhpal submitted a Kurra report proposing the division of the holding in two parts and the respondent no. 5 was shown to be in possession over the part which was adjacent to road running on the east of the plot and the petitioner was shown to be in possession of the part which was adjacent to roads on the east and south of the disputed plot. The said report was submitted on 25.4.2017. It appears from the records that respondent no. 5 filed his objections to the report dated 25.4.1997 of the Lekhpal stating that the valuation of the two parts was different and the Kurra proposed in the share of respondent no. 5 was of a lesser value than the Kurra proposed in the share of the petitioner as the share proposed to the petitioner was adjacent to two roads while Kurra proposed to respondent no. 5 was adjacent only to one road. The Deputy District Magistrate vide his order dated 27.6.2018 accepted the report dated 25.4.2017 submitted by the Lekhpal. Aggrieved by the order dated 27.6.2018, respondent no. 5 filed an appeal before the Additional Commissioner (Administration - Ist), Gorakhpur Division, District Gorakhpur, i.e., respondent no. 3 which was registered as Case No. 01161 of 2018 and the respondent no. 3 vide his order dated 11.9.2018 allowed the said appeal and remanded back the matter to the trial court to pass fresh orders after getting the plot inspected and after making every endeavour that both the parties should get a plot of equal value adjacent to the roads running on the southern and eastern side of the suit property. Aggrieved, the petitioner filed a revision before the Board of Revenue, Uttar Pradesh at Allahabad, i.e., respondent no. 2 which was registered as Revision No. 2357 of 2018 and was dismissed by respondent no. 2 vide its order dated 8.1.2019. The orders dated 8.1.2019 and 11.9.2018 passed by respondent nos. 2 and 3 have been challenged in the present writ petition.
It has been argued by the counsel for the petitioner that the division of holding, i.e., the suit property as proposed by respondent no. 3 vide his order dated 11.9.2018 would make it difficult to cultivate the holding as the suit property was a small plot and the division proposed by respondent no. 3 would result in dividing the holding in more than two parts. It was argued that for the aforesaid reason, the order dated 11.9.2018 is violative of Rule 109(5)(b) and (d) of the Uttar Pradesh Revenue Code Rules, 2016 (hereinafter referred to as, 'Rules, 2016') and liable to be set-aside.
I have considered the submission of the counsel for the petitioner and perused the records.
It is evident from the report dated 25.4.2017 submitted by the Lekhpal and approved by the Deputy District Magistrate, Bansgaon, i.e., trial court that the Lekhpal proposed the Kurras on the basis of the alleged separate possession of the parties on different parts of the holding. The alleged separate possession of the parties on different parts of the holding amounts to prior partition of the suit property which was pleaded by the petitioner in his written statement and not accepted by the trial court when it decreed the suit filed by respondent no. 5. The separate possession of the parties on the suit property is a relevant factor under Rule 109(5)(g) while preparing the final decree only when the the said separate possession is by mutual consent or as a result of family settlement. A perusal of the Kurra report submitted by the Lekhpal also shows that the part being given to respondent no. 5 was inferior to the portion proposed to be given to the petitioner and the proposed Kurra violated Rule 109(5) (c) and (f) of Rules, 2016. In view of the aforesaid, there is no error in the order dated 11.9.2018 passed by respondent no. 3 remanding back the matter to the trial court and in the order dated 8.1.2019 passed by respondent no. 2 dismissing the revision filed by the petitioner. For the aforesaid reasons, the writ petition has no merit and is liable to be dismissed.
However, it is expected that the trial court while preparing the final decree shall consider the mandate of Rule 109(5) (b) of the Rules, 2016, i.e., the portion allotted to each party should be as compact as possible. However, it is clarified that the aforesaid shall not be in derogation to the other principles enumerated in Rule 109(5).
With the aforesaid observations, the writ petition is dismissed.
Order Date :- 30.4.2019 Satyam