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1985 DIGILAW 1035 (ALL)

Mohammad Saddiq v. Ahsanul Haq

1985-10-24

KAUSHAL KISHORE

body1985
JUDGMENT Kaushal Kishore, Member - In this reference dated 17-1-1985 the learned Additional Commissioner Meerut has recommended that the order of the learned SDO dated 28-6-1984 may be set aside. 2. I have heard the learned counsel for the parties and have also perused the record. 3. These proceedings arose out of a case under Section 176 of the UPZA & LR Act in which final decree was passed on 9-2-1979. There was no dispute about the preliminary decree dated 30-12-1978 about share or the final decree. The dispute has arisen about dakhaldehani to the two kura-holders. Although it was one suit and one final decree, the different share-holders moved separate execution proceedings. Mohd. Saddiq moved execution no. 4 of 1981-82 Mohd. Saddiq v Ahsanul Haq, and it was executed on 17-6-82. Ahsanul Haq moved execution no. 6 of 1981-82 which was executed on 30-6-82. On account of Dakhal-dehani on different dates as if these were two separate decrees with decree holders and judgment-debtors reversed, the dispute about incorrect areas in delivery of possession arose and Saddiq has claimed that his boundary fixed on 17-6-1982 cannot be disturbed. 4. On the objection of Saddiq, a report was called and the report dated 24-7-1982 confirmed that the possession to Ahsanul Haq was given on 30-6-1982 and not on 2-7-1982 as alleged by Mohd. Saddiq. Thereafter, the learned SDO ordered that boundary may be so fixed as not to disturb the kuras in the final decree. Mohd. Saddiq made another objection on 11-10-1982 and the learned SDO vide order dated 21 6-1983 required further report from Tehsil. The Tehsil report dated 26-12-1983 clarified that the area of plot no. 189 was actually less than the recorded area 0-11-9 with the result that the areas in kura of Mohd. Saddiq 10-9-0 and of Ahsanul Haq 6-13-0 could not be available, either the parties should have got the area and map corrected before the division or should now settle according to actual area available. The learned trial court after hearing the parties confirmed its earlier order dated 26-7-1982 by the last order dated 28-6-1984. 5. This problem is the creation of some misconceptions and some mistake as well. The mistake was in preparation of kuras with areas fixed only on the basis of recorded areas and not based on actual measurement. The misconception was that each party treated the other as a judgment debtor. 5. This problem is the creation of some misconceptions and some mistake as well. The mistake was in preparation of kuras with areas fixed only on the basis of recorded areas and not based on actual measurement. The misconception was that each party treated the other as a judgment debtor. The suits for division of holding have special features. They have a continuing cause of action. All the parties are at the same footing and the decree covers all the share holders. Each co-sharer is a decree holder but the decree is one and joint and cannot be treated in parts. The result is that any co-sharer decree holder can move the court for execution of the composite decree which must be executed as a whole. 6. This is inherent in the nature of the decree, for a part execution is likely to have adverse effect on the adjoining area in the decree. Just as share of one co-sharer cannot be fixed without deciding the sharers of other co-sharers, because all the shares are bound by the condition that the sum of all shares must be one, neither less than nor more than one, in the same way delivery of possession to all co-sharers has to be simultaneous after checking, the area of each one. Even if any co-sharer be not present, the delivery of possession will be notional, but certainly after checking all the separate areas of various co-sharers. Otherwise it cannot be ensured that the different kuras came out of the original holding and that the sum or areas of these kuras tallies correctly with the areas of the original holding. If there is any discrepancy there is no way out but to settle on spot, by distribution of the discrepancy proportionally amongst all co-sharers. 7. The need for delivery of possession of kuras in a revenue suit under Section 176 of the Act compares well with a decree for dissolution of partnership, provided in Order XX Rule 15 CPC which requires a specific day for such dissolution and with the mode of execution on application by a joint decree holder provided in Order XXI Rule 15 CPC. Any joint decree holder may apply but the execution must be of the whole decree. 8. Any joint decree holder may apply but the execution must be of the whole decree. 8. This principle is just and equitable because before the division of holding, if there was shortage of area, it was shortage of all and if area was in excess, the benefit went to all co-sharers. 9. In the light of these special features of a decree in a suit for division of holding, it is clearly seen that the learned trial court have consolidated the two execution proceedings, no. 4 of 1981-82 and no. 6 of 1981-82 and executed the decree as a whole. The learned Additional Commissioner held the execution no. 6 of 1981-82 as time barred but no. 4 of 1981-82 was also time-barred for it was also filed in the same year 1981-82. Beside it was an illegal execution being only for part decree. As mentioned earlier even on an application by a joint decree holder as provided in Order XXI Rule 15 CPC, the whole decree had to be executed and part execution was in materially irregular exercise of jurisdiction. In the circumstances, the two executions taken together can be deemed to be execution of the whole decree but without settlement of the boundary between the kuras. I also do not feel inclined to consider both these executions as time barred as this would entail at long repetition of the same litigation between the parties. 10. The contention of the revisionist that dakhal was given to him on 17-6-1982 of his kura area 10-9-0 and mend was fixed and the remaining area was the kura of other party and no separate dakhal dehani is needed, is clearly a wrong view and the application of Mohd. Saddiq dated 11-10-1982 was against the accepted procedure. A decree cannot be split up for execution and when possession of kuras is delivered, it must be simultaneous for all kuras. Dakhal-dihani must be deemed commenced on 17-6-1982 and completed on 30-6-1982 and the discrepancy in total area and location of boundary being there, the delivery of possession was only notional as regards area. Now remains the work of fixing boundary after measurement of areas of all kuras on spot and distributing the shortage proportionately between the two co-sharers. 11. Dakhal-dihani must be deemed commenced on 17-6-1982 and completed on 30-6-1982 and the discrepancy in total area and location of boundary being there, the delivery of possession was only notional as regards area. Now remains the work of fixing boundary after measurement of areas of all kuras on spot and distributing the shortage proportionately between the two co-sharers. 11. In this context it appears that the orders by the learned trial court dated 26-7-1982 and 28-6-1984 are just and proper The learned counsel for the opposite party has cited ruling reported in AIR 1979 Alld. 229 to the effect that there should be no interference in revision if substantial justice had been done. The rulings in AIR 1962 Alld. 52 and AIR 1959 Alld. 463 were also cited in support of the same view. I quite accept this salutary principle, applicable in the particular circumstances of this case. 12. The learned counsel for the applicant has cited ruling reported in 1952 RD 352 in support of his contention that a suit for partition is completed only when possession is delivered to the parties. It was held in Nand Kishore v. Mst. Khazani, ( 1952 RD 352 ) that in order to effect the division of a holding, it is neither necessary that a decree for division should be followed by a formal 'dakhal dehani', nor is it necessary that the division should be given effect to in the village records. What is necessary is that there should be actual division on the spot between the co-sharers. 13. This confirms the considerations above and the special nature of these cases/decrees. Rule 132 of the U.P.Z.A. & L.R. Rules says that - "The court shall prepare and place on record a map showing in different colours the plots given to each party and if any field has been subdivided, he shall demarcate the portions at the expense of the parties.'. This confirms the view that there should be actual demarcation to complete the division of holding in case sub-division of a plot is involved. 14. It is clear from the above position that in case of a plot sub-divided in division of a holding, the delivery of possession is notional but the subdivision to be carried out on spot including demarcation. 14. It is clear from the above position that in case of a plot sub-divided in division of a holding, the delivery of possession is notional but the subdivision to be carried out on spot including demarcation. In the instant case everything else with demarcation having been completed this remaining work also has to be carried out and the instructions by the learned trial court in its order dated 26-7-1982 and 28-6-1984 are consistent with the procedure laid down. There is no question of one or both executions to be considered time barred and the whole process being repeated. There is also no question of deeming the revisionist to have been allowed in this division of holding the area 10-9-0 and the area substantially less than 6-13-0 to Ahsanul Haq because that would be contrary to the final decree. As observed above, while fixing the boundary whatever excess or shortage in area of the original holding is found has to be shared proportionately by the co-sharers now separated. 15. In view of the above considerations, I find this reference not acceptable and the revision petition is rejected and the learned trial court is directed to complete the sub-division of the plot on demarcation of kuras in accordance with the guidelines contained in this judgment.