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1992 DIGILAW 344 (ALL)

State v. Parvati

1992-03-17

BHAIRO PRASAD

body1992
JUDGMENT Bhairo Prasad, Member. - This reference has been made by the Additional Commissioner, Sri S.K. Sharma, Moradabad Division, Moradabad vide his order dated 3.7.1986. 2. Proceeding started in the court of Sub-Divisional Officer, Shahabad, District Rampur under Section 168-A of U.P. Act No. 1 of 1951. The learned trial court after taking the evidence came to the conclusion that there was no fragmentation of the holding by the transfer. Hence he dismissed the proceeding. The State Government filed revision against that order under Section 333-A of U.P. Act No. 1 of 1951 before the Additional Commissioner who has referred this revision on the ground that the adjacent land of the sold land is not of the purchaser but her husband. They are two different cultivators, hence there is fragmentation in the holding, the order of the trial court is bad in law and revision should be accepted. He also held that only the plot number of purchases husband has been held to be adjacent to the disputed plot by the trial court. What is the position now after the Consolidation Act has not been thrashed out by the trial court. Therefore, he recommended it should be adjudicated first. 3. I have heard the learned counsel for both the parties. Perused the record. 4. A question was raised from the court to the learned D.G.C.(R) that when the land of the wife and husband are clubbed together for many purpose under the Act to include as one holding while the provision will not be attracted while deciding the proceeding under Section 168-A of U.P. Act No. 1 of 1951. His reply was that the wife and husband was the two separate tenure-holder, hence contiguous, land of one of them will not exonerate the transaction to be void under Section 158-A of U.P. Act No. 1 of 1951. This is very premature argument at this stage. The main object of the Section 168-A is to prevent the holding to be fragmented. If the plot of wife and the husband is jointly cultivated then on the spot there will be no fragmentation. The fragmentation will be only in the record. This is very premature argument at this stage. The main object of the Section 168-A is to prevent the holding to be fragmented. If the plot of wife and the husband is jointly cultivated then on the spot there will be no fragmentation. The fragmentation will be only in the record. In the present case also the plot has been theoretically divided into 88-A and 88-B. However the exact position is not known whether the land of wife and husband both are cultivated together or there is separate plots on the spot, therefore, the revision is accepted and the order of the trial court is set aside and the trial court is directed to obtain the report or himself visit the spot to ascertain what are the actual position about the sold plot and the plot of the purchasers husband. Are they adjacent? They are one plot on the spot or their two identity still exist on the spot. After ascertaining these facts the trail court decide afresh the proceeding. The trial court is also directed to re-adjudicate this proceeding afresh in accordance with direction.