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2014 DIGILAW 1235 (ALL)

Latoor v. State of U. P.

2014-04-17

RAM SURAT RAM (MAURYA)

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JUDGMENT Ram Surat Ram (Maurya),J. Supplementary affidavit filed today is taken on record. 2. Heard Sri S.P. Giri for the petitioners and Sri Amit Singh for the respondents. 3. The writ petition has been filed against the order of Additional Commissioner dated 24.2.2009 and Board of Revenue dated 2.1.2014 passed in the proceeding arising out of the suit under Section 176 of U.P. Act No. 1 of 1951. 4. The petitioners as well as respondent-5 both have purchased a part of plot no.161 of village Ova Nagar, tehsil Chhata, district Mathura. The petitioners filed a suit for partition of his share in the land in dispute. The Sub Divisional Officer by order dated 15.9.2007 passed a preliminary decree deciding the share of the petitioner as 3.25 acre in the land in dispute. Balbir filed an appeal from the aforesaid order. In the appeal Balbir raised ground that according to the sale deed itself shares of both the parties were partitioned as such the suit for partition was not maintainable but without considering the objection of the defendant the preliminary decree has been passed by the Sub Divisional Officer. The Additional Commissioner by order dated 24.2.2009 found that sub-plots of plot no.161 in khatauni 1314 fasli to 1319 fasli have already been allotted. Thus, there is already division of the plot no.161. Since both the plaintiff and defendant obtained sale deed of sub plots as such without looking to the record, the preliminary decree has been passed. On this finding the appeal was allowed and the matter was remanded to the Sub Divisional Officer to decide the suit after taking evidence of the parties and hearing them, in accordance with law. The petitioners filed revision from the aforesaid order before the Board of Revenue, which has been dismissed by the Board of Revenue by order dated 2.1.2014. Hence this writ petition has been filed. 5. The counsel for the petitioners submits that Lekhpal has no jurisdiction to carve out a plot to give effect partition in the revenue record. The petitioners filed revision from the aforesaid order before the Board of Revenue, which has been dismissed by the Board of Revenue by order dated 2.1.2014. Hence this writ petition has been filed. 5. The counsel for the petitioners submits that Lekhpal has no jurisdiction to carve out a plot to give effect partition in the revenue record. He further submits that according to the defendant the sale deed of the petitioners was in respect of plot no.161/1 as such the petitioners should be given possession over it as marked by the Lekhpal in the record but in the sale deed of the petitioners it has been clearly mentioned that he has been sold the land lying in eastern-northern portion along with his plot no.162. Thus, the Additional Commissioner has illegally failed to examine these facts and the observation was made by him that only on the basis of sub-plots allotted in khatauni, the matter is required to be decided in accordance with law. He submits that the observation made by the Additional Commissioner will create difficulty for the petitioners as the Sub Divisional Officer will be bound by the observation and finding of the Additional Commissioner and will not consider anything else in the matter. In such circumstances, the revision was filed but it was illegally dismissed by the Board of Revenue. 6. I have considered the arguments of the counsel for the parties and perused the record. 7. A perusal of the judgment of the Additional Commissioner shows that although he has based his finding on the sub-plots allotted in khtauni 1314 and 1319 fasli but in the operative portion of the order it has been clearly mentioned that both the parties would be at liberty to adduce evidence and the Sub Divisional Officer was directed to decide the suit in accordance with law after hearing the parties. Thus, finding is there that the Sub Divisional Officer is required to take evidence of the parties and decide the matter afresh. In any case it is clarified that while deciding the suit the Sub Divisional Officer shall not be influenced by the observation and the finding recorded by the Additional Commissioner. 8. Thus, finding is there that the Sub Divisional Officer is required to take evidence of the parties and decide the matter afresh. In any case it is clarified that while deciding the suit the Sub Divisional Officer shall not be influenced by the observation and the finding recorded by the Additional Commissioner. 8. The counsel for the petitioners submits that since the petitioners are in possession over a specific portion of the land but the defendants are creating hindrance and even proceeding under Section 145 Cr.P.C. has also been initiated earlier. Therefore, the interest of the petitioners be protected . Since this Court has passed a final order it will not be appropriate for this Court to pass an interim order. However, it is open for the petitioners to move an application before the Sub Divisional Officer in respect of interim order and in case any such application is moved, the same shall be decided within two weeks thereafter. 9. It is clarified that as a regular suit for partition under Section 176 is pending before the court below, proceeding under Section 145 Cr.P.C. is not maintainable as held by the Supreme Court in its various judgements. Both the parties may appear before the Sub Divisional Officer and cooperate in the trial and will lead their evidence and the Sub Divisional Officer shall decide it expeditiously, preferably within a period of one year. 10. With the aforesaid observation the writ petition is disposed of.