Court No. - 7
Case :- WRIT - C No. - 30249 of 2021 Petitioner :- Mata Prasad (Dead) And 5 Others Respondent :- State Of U.P. And 11 Others Counsel for Petitioner :- Santosh Dwivedi Counsel for Respondent :- C.S.C.
Hon'ble Dinesh Pathak,J.
Heard learned counsel for the petitioners and learned Standing Counsel representing respondent nos. 1 & 2.
Instant Petition has been filed on behalf of petitioners invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India, challenging the order dated 22.10.2020 (Annexure-7) passed by the Commissioner, Varanasi Division, Varanasi and the order dated 31.10.2019 (Annexure-5) passed by Sub Divisional Officer, Varanasi.
Grievance of the petitioners is that the impleadment application moved by them in a proceeding under Section 116 of the U.P. Revenue Code, 2006 (hereinafter referred to as the 'Code 2006') has illegally been rejected by the trial court as well as revisional court, although they are in possession over the property in question.
Factual matrix of the case is that respondent nos. 3 to 5/3 have filed a Suit dated 21.6.2016 for partition with respect to the property in question i.e. plot No. 3, 25/1 etc., as mentioned in the foot of the plaint, under Section 116 of the Code 2006 against other co-sharers who were recorded in the revenue record. In the aforesaid suit for partition, preliminary decree dated 31.1.2020 has been passed by the trial court. During the pendency of the Suit, one Mata Prasad ( now represented by his legal heirs, petitioner nos. 1/1 to 1/5) had moved an application dated 7.4.2018 under Order-1 Rue-10 C.P.C., claiming his impleadment in the suit on the ground that he is in possession over the property in question, therefore, he should be heard in opposition in the aforesaid suit. Impleadment application moved by Mata Prasad was rejected by the Sub Divisional Officer vide order dated 31.10.2019 on the ground that in a suit for partition, except the recorded tenure holder, no one can claim his impleadment. The order passed by the trial court was affirmed by the revisional court, dismissing the revision filed by the petitioner, vide order dated 22.10.2020.
Learned counsel for the petitioners submits that they are in possession over the property in question since last several decades and have got right to be heard, in opposition, in the suit inasmuch as their presence is necessary in order to enable the court effectually and completely to adjudicate upon the matter in question. It is further submitted that both the revenue Courts have illegally rejected the claim of the petitioners to be heard in opposition in the original suit.
Per contra, learned Standing Counsel has contended that under the provisions of law only recorded persons, who are co-sharers in the property, have a right to be impleaded in the suit for partition. Present petitioners, being unrecorded persons in the revenue record, have an alternative remedy to file declaratory suit to claim their right and title over the property in question.
I have carefully considered the rival submissions of the counsel for the parties and have perused the materials on record.
The question for consideration, in the facts and circumstances of the present case, as mentioned in the writ petition, is as to whether petitioners, being persons in possession over the property in question have a right to be heard in opposition in the suit for partition filed on behalf of contesting respondent nos. 3 to 5/3 under Section 116 of the Code 2006.
Provision for filing a suit for partition is enunciated under Section 116 of Code 2006. The relevant provision of Section 116 of the Code 2006 and Rule-107 of the U.P. Revenue Code Rules, 2016 (hereinafter referred to as the 'Rules of 2016') are quoted below:-
" Section-116. Suit for division of holding. - (1) A bhumidhar may sue for the division of the holding of which he is a co-sharer.
[(2) In every such suit, the Court may also divide the trees, wells and other improvements existing on such holding but where such division is not possible, the trees, wells and other improvements aforesaid and valuation thereof shall be divided and adjusted in the manner prescribed.]
(3) One suit may be instituted for the division of more holdings than one where all the parties to the suit other than the [Gram Panchayat] are jointly interested in each of the holdings.
(4) To every suit under this section, the [Gram Panchayat] concerned shall be made a party."
" Rule-107. Suit for division of holding (Section 116). - Every plaint in a suit for division of a holding (including trees, wells and other improvements) shall contain the following particulars:-
(1) Name, parentage and address of the plaintiff.
(2) Name parentage and address of other co-sharers of the holding.
(3) Share claimed by the plaintiff.
(4) Share of other co-tenure holders.
(5) Detailed particulars of the holding including plot numbers, area and land revenue.
(6) Whether the plaintiff is a recorded or unrecorded tenure holder. Note: The plaint shall be accompanied by a certified copy of the Khatauni and other documents relied upon by the plaintiff."
Section 116 of the Code 2006 enunciates that a Bhumidhar may sue for the division of holding of which he is a co-sharer. Meaning there by only co-sharer, who is a recorded tenure holder, has a right to file a suit for partition. Rule-107 of the Rules of 2016 enunciates the conditions as to how a suit for partition can be filed, which clearly denotes that the name, parentage and address of the co-sharers of the holding should be required to be mentioned in the plaint. Meaning thereby, all the co-sharers who are recorded tenure holders alongwith plaintiff are required to be impleaded in the suit. There is nothing in this provision to suggest that any third person who is not recorded in the revenue record can claim his impleadment to be heard in opposition in the suit for partition, only on the basis of possession. A person who is not recorded in the revenue record, being a co-sharer, has got no right to be heard in opposition in the suit for partition and his presence in the suit is not necessary, in order to enable the court effectually and completely to adjudicate upon and settle all the question involved in the suit.
In this conspectus, as above, I do not find any force in the submission advanced by the learned counsel for the petitioners in assailing the impugned orders dated 31.10.2019 and 22.10.2019. Present petition being misconceived and devoid of merits, is dismissed with no order as to the costs.
Order Date :- 20.12.2021 n.u.