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Allahabad High Court · body

2008 DIGILAW 304 (ALL)

BADRI v. BOARD OF REVENUE U P AT ALLAHABAD AND

2008-02-08

S.K.SINGH

body2008
S. K. SINGH, J. Heard Sri Manoj Mishra, learned Advocate in Support of this writ petition and Sri. T. S. Dabas, learned Advocate who appeared for the respondent. 2. Both learned Advocates submit that Gaon Sabha is formal party as it is a suit for partition in which share of the contesting sides is to be decided. Gaon Sabha has also not filed written statement and therefore, as submitted writ petition is being heard and is being finally decided. 3. For deciding the writ petition, facts in brief can be summarised. 4. Suit was filed by the plaintiff-respondent under section 176 of U. P. Z. A. & L. R. Act claiming 1/2 share in the land in dispute. Defence initially by way of written statement by inadvertence was of 1/2 but by amendment it was corrected and it was stated by the defence side that plaintiff is entitled to only 1/4 and defendant is to 3/4 share. After evidence Trial Court decided share of the parties and plaintiffs share was accepted to be 1/4 and that was confirmed by the first appellate Court. In the second appeal plaintiffs side was allowed 1/2 share and thus this writ petition. 5. Submission of the learned Counsel for the petitioner is that the Board of Revenue has not pointed out any evidence and no finding has been recorded that land in dispute had ever been ancestral and it is thus on account of the order passed in the consolidation proceeding permitting both Kahats to be amalgamated acceptance once of half share cannot be said to be proper approach. When the parties had not chosen to get their shares decided during consolidation and now if that is to be decided then share is to be decided in the light of the evidence after trace of history of the nature of the acquisition and entry as stand in the name of both sides. Shri Misra, learned Advocate submits that before consolidation land comprised in Khata No. 48 was exclusively recorded in the name of Kanhai who happened to be the ancestor of the petitioner and land comprised in Khata Nc. Shri Misra, learned Advocate submits that before consolidation land comprised in Khata No. 48 was exclusively recorded in the name of Kanhai who happened to be the ancestor of the petitioner and land comprised in Khata Nc. 62 was recorded in the name of ancestors of both sides and thus taking into account that consideration two courts have accepted 3/4 right of the petitioner and 1/4 of the respondent and therefore, Board of Revenue is to point out that on what basis plaintiff respondent can be entitled to 1/2 share. As this is lacking, matter needs fresh consideration. 6. In response to the aforesaid Sri Dabas, learned Advocate very fairly accepted lack of finding in the judgment of Board of Revenue. The board has not referred to any evidence by which land in dispute can be accepted to be ancestral and thus submission is that irrespective of amalgamation of both Khatas, noticed above, during course of consolidation, share of parties will have to be decided keeping in mind the nature of entries and other evidence whichever is available on the record. 7. In view of the aforesaid, this Court is to decide the matter. 8. There is no dispute about the fact that during course of consolidation both Khatas i. e. Khata Nos. 48 and 62 were amalgamated. The land comprised in Khata No. 48 i. e. 5. 15. 0 was recorded solely in the name of Kanhai and land comprised in Khata No. 62 i. e. 5. 15. 0 was recorded in the name of both sides i. e. Kanhai and Chet Ram. Amalgamation of both Khatas do not mean automatic equal share. Amalgamation can be also for the purpose of convenience. A joint chak might be there and Khata might remain joint in consolidation and it is after close of consolidation if parties wants division then that is to be done on its own merits irrespective of amalgamation affair. Trial Court and first Appellate Court appears to have given 3/4 share to the petitioner side and 1/4 share to the respondent side solely on the basis of pre-consolidation entries and thus if Board of Revenue is to vary the share then some evidence pointing out entire land to be ancestral or to be joint, to enable both parties to have 1/2 share will have to be referred/pointed out. In the joint family even the share of the parties can vary and that is to depend on the evidence in that respect and thus Board of Revenue has clearly lost sight to this important aspect while allowing the appeal. On this fact this Court is convinced that matter needs fresh attention of the Second Appellate Court. 9. Accordingly, this writ petition succeeds and is allowed. The judgment passed by the Second Appellate Court is hereby set aside. Second Appellate Court is directed to revive the second appeal and to get the same decided in accordance with law after giving opportunity of hearing to both sides preferably within a period of four months from the date of receipt of certified copy of this order from either of the sides. Petition Allowed. .