Court No. - 36
Case :- WRIT - B No. - 3096 of 2018 Petitioner :- Patai Respondent :- Board Of Revenue U.P. And 6 Others Counsel for Petitioner :- Sachida Nand Tripathi,Udai Shankar Chauhan Counsel for Respondent :- C.S.C.,Awadhesh Kumar Malviya
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the parties.
Supplementary affidavit filed today is taken on record.
The present petition arises out of a suit filed by the co-sharer namely the petitioner and respondent nos.4, 5 and 7 for division of joint holdings in three revenue villages namely Odasan, Sikandarpur, Prithipur, Pargana Pachotar, Tehsil and District Ghazipur. The shares of the parties have been determined by the competent court of law vide judgement and decree dated 23.08.2012. A preliminary decree was prepared, accordingly, on 03.09.2012 describing 1/4th share of the parties. The said decree has attained finality as there has been no challenge. It appears that pursuant to the preliminary decree, a final decree dated 28.02.2013 was prepared which was recalled on an application moved by the petitioner herein. Against the order of the trial court on the recall/review application dated 26.05.2015, the respondent nos.4 to 7 preferred a revision which was dismissed as not maintainable being against the interlocutory order.
The revisional order was challenged in Writ Petition-C No.45320 of 2015 (Ram Sukh & another Vs. Additional Commissioner Varanasi Division Varansi). The said writ petition was dismissed vide judgement and order dated 15.09.2015 with the observation that the trial court may pass a final decree in accordance with law.
It appears that thereafter for preparation of final decree, a fresh report was called for by the trial court. The report dated 18.11.2015 was submitted before the Sub Divisional Officer. The said report was objected by the petitioner stating therein that Gata no.155 and 130 have been acquired for construction of four lane road (National Highway). The acquired area of the said plots be deducted from the kurras prepared by the Lekhpal. Further an objection was raised with regard to the Kurra regarding the shares of the parties in Gata no.289 and 290 of village Odasan with the assertion that the petitioner has been deprived of the portion of the plot no.290 which is adjacent to plot no.289 over which he has planted 20 Guava and Teek wood trees adjacent to his house. The kurra prepared by the Lekhpal was not in confirmity with the respective possession of the contesting parties.
It appears that a fresh report was called for by the Sub Divisional Officer which was submitted on 04.01.2016 and the same was accepted vide order dated 28.03.2016 with the finding that the report dated 04.01.2016 was based on the possession of the parties and no objection whatsoever had been filed by the contesting parties against the said report.
The final decree dated 28.03.2016 was thus passed on the ground that it was in confirmity with the possession of the parties on the spot. This decree was challenged in first appeal no.120 of 2016 filed by the petitioner herein which was dismissed on the ground that the report dated 04.01.2016 was based on the spot inspection and was rightly approved by the trial court. The second appeal was not entertained on the ground that there was no justification to interfere in the final decree drawn by the court below.
Challenging these orders, submission of learned counsel for the petitioner are two folds. First submission is that the final decree prepared by the trial court is not in conformity with the preliminary decree in as much as, the trial court has decreed 1/4th share to each of the co-sharer in the lands existing in three revenue villages/Mauja namely Odasan, Sikandarpur, Pirthipur. And as such the Kurras cannot be prepared to alter the shares of the parties in each village. The final decree has to be in conformity with the preliminary decree which has attained finality between the parties.
Further submission is that the objections filed by the petitioner to the report dated 18.11.2015 were ignored by the trial court and a fresh report dated 04.01.2016 was invited. Pending objection of the petitioner to the report dated 18.11.2015, it was not open for the trial court to call for a fresh report and further to record that no-one had filed objection. In-fact, no opportunity was provided to the petitioner to object to the same and the said report was prepared behind his back.
Learned counsel for the respondents on the other hand, defended the order impugned with the assertion that there were repeated objections of the co-sharers regarding preparation of Kurra, there was no option before the trial court but to call for a fresh report to find out the possibility for preparation of Kurra with the consent of the parties. Admittedly, the lands in plot no.130 and 155 of village Sikandarpur are valuable land as a portion thereof has been acquired and the National Highway (Four Lane Road) passes in between these two plots. The trial court has determined the shares of the parties in the said plots in such a manner that four co-sharers gets equal area having road frontage.
With reference to page no.67 of the paper book, an map (appended to the report dated 04.01.2016), it is demonstrated by the learned counsel for the petitioner that two plots namely plot no.130 and plot no.155 of Mauja Sikandarpur lie at two opposite sides of the four lane road. Entire area of plot no.155 has been provided in the share of the petitioner whereas three brothers namely the respondent nos.4 and 5 and predecessor of respondent no.6 and 7 were provided equal shares.
In so far as the plot no.289 and 290 is concerned, it is contended by the learned counsel for the respondents that the determination of share of the parties is based on their possession over the plot in question. The trial court cannot be said to have erred in accepting the report dated 04.01.2016 for preparation of final decree.
Dealing with this submission of learned counsel for the parties and having perused the record, it is pertinent to note that the report dated 04.01.2016 page no.66/67 of the paper book makes it apparent that the plot no.130 area 0.612 hectare was provided in the share of three co-sharers whereas 0.153 hectare of plot no.155 of village Sikandarpur has been provided to the petitioner. In so far as the position of the said plots, there is no dispute between the parties that both the plots lies at the opposite sides of a four land road. No dispute could be raised by the petitioner to dispute the assertion of learned counsel for the respondent that as a result of the said arrangement all co-sharers get equal shares in the said plots having road frontage. The valuation of these plots have been increased remarkably due to the same being adjacent to the National Highway (Four Lane Road). The area of 0.044 hectares which became deficient in the share of the petitioner on account of the said arrangement has been adjusted in another plot no.884 of village Pirthipur.
In so far as the contention of the petitioner regarding the final decree being in contravention of the preliminary decree in as much as the trial court was required to provide 1/4 share each in three Maujas to the petitioner, it is sufficient to note that that at the time of preparation of final decree, (after determination of shares of the parties), the trial court was required to observe the principles laid down in Rule 131 of U.P. Z.A. & L.R. Rules' 1952.
One of the principle to be observed by the Court in making partition of holdings is to give each party all inferior and superior classes of land, as far as possible. It is further required to see that each party gets compact portion as far as possible keeping in mind the separate possession of the tenure holders in the joint holding.
In the instant case, the co-sharers are at loggerheads for a long time. The preliminary decree passed in the year 2012 could not be given effect to for the dispute raised by the parties with regard to the identification of their shares in the lands of three Maujas. The trial court after inviting repeated reports on the spot inspection of the site in question has decided the shares of the parties in such a manner that valuable lands in plot no.130 and 155 situated in village Sikandarpur be provided to each co-sharer so that they get equal share having road frontage. The adjustment of a small share of approximately 0.044 hectares in another Mauja Pirthipur in the share of the petitioner, by the trial court cannot be said to be in contravention of the preliminary decree. Thus in so far as the determination of the shares of the parties with regard to the lands situated in villages/Maujas Sikandarpur and Pirthipur, no infirmity could be found in the findings recorded by the trial court based on the basis of report dated 04.01.2016.
In view of the above discussion, no valid dispute remains with regard to the lands situated in Mauja Sikandarpur and Prithipur.
However, in so far as the plot no.289 and 290 of Mauja Odasan is concerned, the map appended to the report dated 04.01.2016 (page 68 of the paper book) indicates that the petitioner has not been provided a compact portion. His portions in plot no.289 and 290 are divided on two opposite sides with the portion of the contesting respondent lying in between. The objections filed by the petitioner with regard to plot no.289 and 290 have not been addressed by the trial court. The contention of the petitioner regarding his house existing in plot no.289 village/Mauja Odasan is not disputed by the learned counsel for the respondent. Only dispute remains is with regard to the trees existed in plot no.290 village/Mauja Odasan. Both the parties are claiming that the trees existing in the said plot belonged to them. The reports dated 04.01.2016 and 18.11.2015 are silent in this respect.
In view thereof, this Court finds substance in the objection of learned counsel for the petitioner with regard to division of plot no.290 and 289 existing in Mauja Odasan.
At this stage, both the Advocates for the parties sought time so as to counsel the parties to arrive at an amicable solution.
In view of the said request of learned counsels for the parties, the matter is posted on 06.04.2018 in the additional cause list so as to enable the rival parties to make an effort to reach at an amicable solution for division of joint holdings in Gata no.289 and 290 village Odasan, Tehsil Sadar, District Ghazipur.
Order Date :- 29.3.2018 Himansh