JUDGMENT Hon’ble Bala Krishna Narayana, J.—Heard Sri M.A. Qadeer learned Senior Advocate, assisted by Sri Mustaqeem Ahmad for the petitioners and Sri O.P.Singh learned Senior Advocate assisted by Sri S.K.Rao. 2. The dispute involved in the present writ petition is confined to 1/3rd share of Husain Bux and 1/6th shares each of Jameel and Ismail in Khata No. 151 (new Nos. 23 and 24 which comprised of plot No. 249 area 1.75 acres and plot No. 368 area 2.03 acres total area 3.78 acres (hereinafter referred to as disputed Khatas and disputed plots) The disputed khatas were recorded in the names of Jameel and Ismail sons of Ahmad Hussain, Yaseen, Yameen and Salim sons of Kallu and Husain Bux son of Ali Husain. It is undisputed that Husain Bux had 1/3 share and Jameel and Ismail had 1/6th share each in the disputed Khatas. Husain Bux transferred 0.68 acre of his share in the disputed khtatas in favour of Abdul Majeed father of petitioner Nos. 4 to 6 and Mohammad Jareef petitioner No. 3 for a sum of Rs. 3000/ by a registered sale deed dated 23.2.1973 . By means of the same sale deed the aforesaid Husain Bux transferred his remaining share in disputed khatas measuring 0.58 acre in favour of his wife Smt. Mustafai Begum for a sum of Rs. 3000/. 3. Ismail who had 1/6th share in the disputed khatas transferred 0.3 acre of his share in the disputed kahatas in favour of Rais Ahmad petitioner No. 1 and Mohammad Anis petitioner No. 2 for a sum of Rs. 2000/ by a registered sale deed dated 8.4.1973. By means of another sale deed he transferred his remaining share in the disputed khatas measuring .9 acre in favour of his own sons Azhar Hussain, Subrati and Akhtar Hussain and Muzaffar. Smt. Mustafai Begum executed a sale deed on 27.3.1991 in favour of Mobin Husain respondent No. 2 for a sum of Rs. 1600/ in respect of 0.58 acre land of the disputed Khatas which she had purchased from her husband Husain Bux. Azhar Husain, Subrati, Akhtar Husain and Muzaffar sons of Ismail also transferred their share in the disputed khatas which they had purchased from their father vide sale deed dated 8.4.1973 in favour of Mobin Husain by a sale deed dated 27.3.1991 whereupon respondent No. 2 Mobin Husain acquired 1/2 share in the disputed Khatas. 4. Azhar Husain, Subrati, Akhtar Husain and Muzaffar sons of Ismail also transferred their share in the disputed khatas which they had purchased from their father vide sale deed dated 8.4.1973 in favour of Mobin Husain by a sale deed dated 27.3.1991 whereupon respondent No. 2 Mobin Husain acquired 1/2 share in the disputed Khatas. 4. It is admitted to the parties that all the above noted sale deeds were in respect of specific areas which connoted the shares of the vendors in the disputed Khatas and no plot numbers were mentioned in any of the sale deeds. 5. In the basic year record of the consolidation authorities Abdul Majeed father of petitioner nos 4 to 6, Mohammad Jareef petitioner No. 3 and Mobin Husain respondent No. 2 were recorded as co tenure holders of disputed Khatas No. 23 having 1/3 share each. Similarly, Sayeed Ahmad father of petitioner Nos. 1 and 2, Abdul Majeed father of petitioner Nos. 4 to 6 and Mobin Husain respondent No. 2 were recorded as co tenure holders to the extent of having 1/3 share each in the disputed Khata No. 24 in the basic year. 6. Since on the basis of the sale deeds dated 27.3.1991 executed by Smt. Mustafai Begum and the sons of Ismail in respect of their shares in the disputed Khatas in favour of Mobin Husain he was entitled to 1/2 share in each of the disputed khatas instead of 1/3 share as recorded in the basic year, the respondent No. 2 filed an objection under Section 9A(2) of U.P.Consolidation of Holdings Act (hereinafter referred to as the ‘Act’) before the Consolidation Officer Sirsi, Moradabad which was registered as Case No. 982, claiming half share in each of the disputed khatas. The petitioners contested the claim of the respondent No. 2 by filing their written statement before the Consolidation Officer. The petitioners did not dispute the correctness of the shares of co tenure holders in the disputed khatas as recorded in the basic year and filed a family arrangement / partition dated 12.10 .1973 signed by Husain Bux and Ismail the vendors of parties and made a prayer that the disputed khatas be partitioned amongst the co tenure holders on the basis of the specific plots as mentioned in the family partition/ arrangement dated 12.10.1973. 7. 7. The aforesaid prayer of the petitioners was opposed by the respondent No. 2 on the ground that the family arrangement/partition dated 12.10.1973 had no sanctity of law and the respondent No. 2 was not bound by it for the reason that he had not signed the said family partition and that the persons who had agreed to partition the disputed khatas on the basis of specific plots namely Ismail and Husain Bux had no right, title or interest left in the disputed Khatas on the date when the family partition/arrangement was made as on the said date they had already transferred their shares in the disputed khatas to the respondent No. 2 and the petitioners. The Consolidation Officer Sirsi, Moradabad, however, by his order dated 10.7.2000 copy whereof has been filed as Annexure 12 to the writ petition, partitioned the disputed khatas between the petitioners and the respondent No. 2 on the basis of specific plots in accordance with the terms and conditions stipulated in the family partition/arrangement dated 23.2.1973 and also held that the shares of the parties in the disputed khatas recorded in the basic year were correct. By the order of the Consolidation Officer the petitioner was allotted plot No. 249 whereas the petitioners were given plot No. 568 of the disputed khatas. 8. Aggrieved by the order of the Consoldiation Officer the respondent No. 2 preferred an appeal before the Settlement Officer Consolidation Moradabad which was numbered as Appeal No. 895 . The said appeal was heard by the Settlement Officer Consolidation alongwith two other appeals namely Appeal Nos. 902 and 900 and all the three appeals were decided by him by a common order dated 12.9.2000, copy whereof has been filed as Annexure 14 to the writ petition. By the said order the Settlement Officer Consolidation dismissed the appeal of the respondent No. 2. 902 and 900 and all the three appeals were decided by him by a common order dated 12.9.2000, copy whereof has been filed as Annexure 14 to the writ petition. By the said order the Settlement Officer Consolidation dismissed the appeal of the respondent No. 2. Challenging the above noted orders of the Consolidation Officer and the Settlement Officer Consolidation respondent No. 2 filed a revision under Section 48 (1) of the U.P.Consolidation of Holdings Act before the respondent No. 1which was numberd as Revision No. 17/16/48/119/128/239 and allowed by him by his order dated 14.9.2005 copy whereof has been filed as Annexure 14 to the writ petition whereby orders passed by the Consolidation Officer and the Settlement Officer Consolidation were set aside and the matter was remitted back to the Consolidation Officer with a direction to partition the disputed khatas on the basis of the shares of the parties as determined by him in the impugned order. 9. The instant writ petition has been filed by the petitioners for quashing the order dated 14.9.2005 passed by the respondent No. 1(Annexure 15 to the writ petition). 10. Sri M.A. Qadeer learned counsel for the petitioners vehemently submitted that the orders passed by the Consolidation Officer and the Settlement Officer Consolidation did not suffer from any illegality or infirmity warranting any interference by respondent No. 1. The Consolidation Officer and the Settlement Officer Consolidation had rightly partitioned the joint holdings on the basis of specific plots by relying upon the family agreement dated 12.10.1973 and the respondent No. 1 clearly exceeded his jurisdiction in setting aside the orders which were challenged by the respondent No. 3 in revision and in remanding the matter back to the Consolidation Officer. 11. Sri M.A. Qadeer also submitted that the respondent No. 1 had also manifestly erred in law in coming to the conclusion that the respondent No. 2 had 1/2 share in each of the disputed khatas and not 1/3 share as recorded in the basic year. 12. Sri OP Singh learned Senior Advocate appearing for the respondent No. 2 submitted that the impugned order is a just and legal order and being an order of remand is not liable to be interfered with by this Court in the exercise of its extra- ordinary jurisdiction. 13. 12. Sri OP Singh learned Senior Advocate appearing for the respondent No. 2 submitted that the impugned order is a just and legal order and being an order of remand is not liable to be interfered with by this Court in the exercise of its extra- ordinary jurisdiction. 13. Sri O.P.Singh further submitted that the Consolidation Officer committed a manifest error or law in par;titioning the disputed Khatas on the basis of the specific plots in contravention of Section 9C of the Act as the respondent No. 2 had never given his consent to the partition of the disputed Khatas on the basis of specific plots and the Settlement Officer Consolidation fell into the same error in affirming the order of the Settlement Officer Consolidation in appeal. 14. Sri O.P.Singh lastly submitted that the respondent No. 1 rightly held that the petitioners had 1/2 share in both the disputed khatas and the reason given by him in the impugned order for reaching the aforesaid conclusion cannot be faulted with. 15. I have examined the submissions made by learned counsel for the parties and have also perused the record of the writ petition. 16. In the basic year the recorded tenure holders were shown as having 1/3 share in each of the disputed Khatas. The respondent No. 2 filed an objection under Section 9A(2) of the Act before the Consolidation Officer claiming 1/2 share in both the khatas on the basis of the two sale deeds executed in his favour by Mustafai Begum and Azhar Husain and others sons of Ismail on 27.3.1991 The petitioners had set up a family partition before the Consolidation Officer and on the basis of the said family partition they claimed that plot No. 368 be allotted to them and plot No. 249 be given to the respondent No. 2. Although the said family partition/arrangement was neither signed by the respondent No. 2 nor he had agreed for partitioning the disputed Khatas on the basis of the specific plots yet the Consolidation Officer by his order dated 10.7.2000 partitioned the disputed plots on the basis of specific plots in accordance with the family arrangement dated 12.10.1973 Although the legality of the order of the Consolidation Officer was challenged by the respondent No. 2 in appeal on the ground that the said order was passed by the Consolidation Officer in violation of Section 9C(2) of the Act, yet the Settlement Officer Consolidation dismissed the petitioners’ appeal. However, the respondent No. 1 by the impugned order allowed the revision preferred by the respondent No. 2 against the orders of the Consolidation Officer and the Settlement Officer Consolidation and after setting aside their orders remitted the matter back to the Consolidation Officer for a fresh decision. 17. A perusal of the order passed by the respondent No. 1 copy whereof has been filed as Annexure 15 to the writ petition shows that the respondent No. 1 set aside the orders impugned before him on the following grounds : (i) The respondent No. 2 having never agreed to the partition of the disputed khatas on the basis of specific plots and neither he nor his vendors being signatories to the family arrangement dated 12.10.1973, the partition of the disputed khatas effected by the Consolidation Officer on the basis of the specific plots as affirmed by the Settlement Officer Consolidation was in violation of Section 9C(2) of the Act. (ii) The Consolidation Officer and the Settlement Officer Consolidation while holding that respondent No. 2 had 1/3 share in both the khatas and not 1/2 share as claimed by him illegally ignored the sale deed dated 27.3.1991 executed in favour of the respondent No. 2 by Azahar Husain, Subrati, Akhtar Husain and Muzaffar sons of Ismail in respect of their shares in disputed khatas in favour of respondent No. 2 and upon said sale deeds being taken into consideration there was no iota of any doubt that the respondent No. 2 had 1/2 share of both the disputed khatas. 18. 18. The question which arises for determination in this case is as to whether the respondent No. 1 was legally justified in setting aside the orders passed by the Consolidation officer and the Settlement Officer Consolidation on the grounds mentioned in the impugned orders. 19. In order to appreciate whether the first ground on which the orders impugned before the respondent No. 1 were set aside by him, it is necessary to extract Section 9C of the Act which reads as hereunder. “9-C Partition of joint holdings.—(1) The Assistant Consolidation Officer, or the Consolidation Officer, may partition joint holdings underSection 9-A, notwithstanding anything to the contrary contained in Section 178 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, or any other law, and may also partition the same suo motu. (2) The partition of joint holdings shall be effected on the basis of shares provided that where the tenure-holders concerned agree, it may be effected on the basis of specific plots.” 20. After having carefully gone through the averments made in the writ petition as well as the counter and rejoinder affidavits and the order impugned in this writ petition and examined the rival contentions advanced by learned counsel for the parties and the provisions of Section 9-C of the Act this Court is of the opinion that the view taken by the respondent No. 1 that the partition of the disputed khatas effected by the Consolidation Officer and affirmed by the Settlement Officer Consolidation was in contravention of Section 9-C(2) of the Act, is absolutely correct. 21. A bare reading of Section 9-C(2) of the Act makes it clear that partition of joint holding shall be effected on the basis of shares provided that where tenure holders concerned agree, it may be effected on the basis of the plots. Since admittedly in the present case the respondent No. 2 never agreed to the partition of the disputed khatas on the basis of specific plots, the partition of the disputed khatas effected on the basis of specific plots by the Consolidation Officer and affirmed by the Settlement Officer Consolidation cannot be sustained on account of being in violation of Section 9C(2) of the Act. 22. 22. Upon examining the second ground on which the orders of the Consolidation Officer and the Settlement Officer Consolidation were set aside by the respondent No. 1, this Court has no hesitation in holding that the respondent No. 1 rightfully held that the respondent No. 2 had 1/2 share in both the disputed khatas and not 1/3 share as recorded in the basic year. Learned counsel for the petitioner has failed to demonstrate that the aforesaid finding which is based upon evidence suffers from any error. 23. In view of the aforesaid reasons, I find that there is no force in the submissions advanced on behalf of the petitioners. 24. The impugned order passed by the respondent No. 1 is based upon relevant considerations and supported by cogent reasons. 25. Learned counsel for petitioners has failed to demonstrate that the impugned order suffers from any illegality infirmity or perversity warranting any interference by this Court. 26. The writ petition has no merit and is accordingly dismissed. 27. It will be open to the parties to raise all the pleas legally available to them before the Consolidation Officer. ————