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2016 DIGILAW 2447 (ALL)

Sukh Lal Singh v. State of U. P.

2016-07-14

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya), J. – Heard Sri Bimal Prasad, for the petitioner and Sri Satendra Nath Tiwari, for the contesting respondents. 2. This writ petition has been filed against the order of Assistant Collector dated 04.11.2009, approving kurra and final decree dated 06.11.2009, Additional Commissioner dated 27.04.2010 and Board of Revenue, U.P. dated 20.06.2012, dismissing the appeal and second appeal of the petitioner, in partition suit, under Section 176 of U.P. Zamindari Abolition And Land Reforms Act, 1950 (hereinafter referred to as the Act). 3. Sukh Lal Singh (the petitioner) filed a suit (registered as Suit No. 195 of 2009) under Section 176 of the Act, for division of his share in land recorded in khata-361 [consisting plots 101 (area 0.288 hectare), 103 (area 0.207 hectare), 105 (area 0.807 hectare), 108 (area 0.046 hectare), 113-kha (area 0.069 hectare), 147-Aa (area 0.680 hectare), 147-Ba (area 0.304 hectare), 148 (area 0.011 hectare), 150-m (area 0.230 hectare), 197/2 (area 0.051 hectare), 218/2 (area 0.092 hectare), 267 (area 0.115 hectare) and 268/2 (area 0.149 hectare) (total 13 plots, area 3.049 hectare)] of village Usrah Rashoolpur, pargana Tappal, district Aligarh. Assistant Collector, by his judgment dated 09.06.2014 passed the preliminary decree in the suit holding (i) defendants-1 and 2 were sole owners of plots 218/2 (area 0.092 hectare), 267 (area 0.115 hectare) and 268/2 (area 0.149 hectare) (ii) The plaintiff had 416/495 share and defendants-1 and 2 jointly had 79/495 share in plots 101 (area 0.288 hectare), 103 (area 0.207 hectare) (iii) The plaintiff had 262/984 share and defendants-1 and 2 jointly had 722/984 share in plot 147 (area 0.984 hectare) and (iv) The plaintiff had ½ share and defendants-1 and 2 jointly had ½ share in plots 105 (area 0.807 hectare), 108 (area 0.046 hectare), 113-kha (area 0.069 hectare), 148 (area 0.011 hectare), 150-m (area 0.230 hectare) and 197/2 (area 0.051 hectare). Although the plaintiff was co-sharer of ½ share and defendants-1 and 2 jointly had ½ share in joint holdings, but variation of share was due to sale deeds executed by them in favour of each other in respect of different plots. No one challenged preliminary decree and it has become final. 4. The petitioner filed an application dated 05.10.2007, for preparation of final decree. Assistant Collector directed the Lekhpal to prepare kurra. Lekhpal prepared kurra and submitted in the Court on 18.03.2008. No one challenged preliminary decree and it has become final. 4. The petitioner filed an application dated 05.10.2007, for preparation of final decree. Assistant Collector directed the Lekhpal to prepare kurra. Lekhpal prepared kurra and submitted in the Court on 18.03.2008. The petitioner filed an objection dated 03.04.2008 to the kurra and stated that kurra has not been prepared according to previous possession of the petitioner. The petitioner was in possession of northern side of plot 147/2, by the side of chak road, in private partition but Lekhpal prepared kurra of the parties in north-south. Share of the petitioner was given in eastern side, due to which boring, which was sink by the petitioner on his own expenses, in western side was given in the share of defendants-1 and 2. In the same way plot 150 was divided in north-south in stead of east-west. In plot 103, the petitioner was in possession of western portion but his kurra has been prepared in eastern portion. In plot 113, the petitioner was in possession of western portion but his kurra has been prepared in eastern portion. 5. Assistant Collector, by order dated 04.11.2009, found that the petitioner could not prove that boring in plot 147 was sink from his own expenses. Lekhpal has prepared kurra giving frontage on chak road to both the parties, giving valuation according to their share. On these findings, he approved the kurra and directed for preparation of final decree according to it. In pursuance of this order, final decree was prepared on 06.11.2009. 6. The petitioner filed an appeal (registered as Appeal No. 4 of 2009) from the aforesaid order. Additional Commissioner, after hearing the parties, by order dated 27.04.2010 held that kurras were prepared according to share of the parties in different plots. The petitioner was in service and living outside the district. Defendants-1 and 2 have more share in plot 147 as such it is more probable that they must had installed tube-well in it. Assistant Collector has not committed any illegality. On these findings, the appeal was dismissed. The petitioners filed a second appeal (registered as Second Appeal No. 16 of 2010) from the aforesaid order. Board of Revenue, U.P. by order dated 20.07.2012, affirmed the findings of Courts below and dismissed second appeal. Hence this writ petition has been filed. 7. Assistant Collector has not committed any illegality. On these findings, the appeal was dismissed. The petitioners filed a second appeal (registered as Second Appeal No. 16 of 2010) from the aforesaid order. Board of Revenue, U.P. by order dated 20.07.2012, affirmed the findings of Courts below and dismissed second appeal. Hence this writ petition has been filed. 7. The counsel for the petitioner submitted that the petitioner had purchased share of respondents-5 and 6 in plots 102 and 103. Lekhpal while preparing kurra has given 0.8 hectare less in plot 102 and 0.73 hectare less in plot 103. Similarly total valuation of 47.80 was given to the petitioner and 57.30 was given to respondents-5 and 6. Kurra of the petitioner on plot 147 has become in narrow strip and it will become very difficult to the petitioner to cultivate it through tractor. Both the tube-wells, falling in plot 47 are given in kurra of the respondents-5 and 6. Additional Commissioner has illegally presumed that boring in plot 147 was sink by the respondents. Low fertile land has been allotted in kurra of the petitioner and kurra was not according to provisions of Rule 131 of the Rules. Impugned orders are illegal and liable to be set aside. 8. I have considered the arguments of the counsels for the parties and examined the record. The petitioner, in his objection dated 03.04.2008 to the kurra, has stated that kurra was not been prepared according to previous possession of the parties. The petitioner was in possession of plot 147/2, which was in northern side by the side of chak road, in private partition but Lekhpal prepared kurra of the parties in north-south. Share of the petitioner was given in eastern side of this plot, due to which, the boring, which was sink by the petitioner on his own expenses, in western side has gone in the share of defendants-1 and 2. But the petitioner has not adduced any evidence to prove previous possession over specific portion of a plot or exclusive ownership of a petitioner on boring. The petitioner, through sale deed dated 29.06.2001 sold an area of 0.230 hectare in plot 147 from his ½ share in it and his entire ½ share in plots 167 and 168/2. In this sale deed also previous possession over specific portion of plot 147 was not shown. Total area of plot 147 was 0.984 hectare. The petitioner, through sale deed dated 29.06.2001 sold an area of 0.230 hectare in plot 147 from his ½ share in it and his entire ½ share in plots 167 and 168/2. In this sale deed also previous possession over specific portion of plot 147 was not shown. Total area of plot 147 was 0.984 hectare. In preliminary decree, the petitioner was given 262/984 share and defendants-1 and 2 jointly 722/984 share in plot 147 (area 0.984 hectare). This decree was not challenged by the petitioner. An area of 0.262 hectare of plot 147 was allotted in share of the petitioner. This is not a small area or form a narrow strip. In final decree, the petitioner was given eastern portion giving frontage on chak road in north. In case share of the petitioner in this plot is given in east-west in north, then respondents-5 and 6 will have no access of chak road. Thus kurra has been legally prepared. In other plots also kurra has been prepared giving frontage to the parties on roadside. 9. So far as ownership of boring in plot 147 is concerned, one boring in it, is not functional and in ruinous condition. The petitioner, in objection dated 03.04.2008 has not claimed ownership over tube-well rather he claimed ownership over boring but could not adduce any evidence. In the same way, respondents-5 and 6 also could not adduce any evidence to show their exclusive ownership over boring. It is admitted that the parties are not peacefully using boring jointly. As such it is provided that Assistant Collector may assess cost of boring. As boring is falling in kurra of respondent-5 and 6 as such they will provide 262/984 share of cost of boring to the petitioner and who will have no claim over it in future. 10. The arguments that Lekhpal while preparing kurra has given 0.8 hectare less in plot 102 and 0.73 hectare less in plot 103 is not liable to be entertained as no such objection has been raised in this respect before Assistant Collector nor any evidence has been adduced to prove it. 11. In view of the aforesaid discussion, there is no illegality in orders of Courts below on merit. The writ petition is party allowed. 11. In view of the aforesaid discussion, there is no illegality in orders of Courts below on merit. The writ petition is party allowed. It is provided that in case, the petitioner may move an application for compensation of boring in plot 147, before Assistant Collector, who shall got assessed valuation of boring through Lekhpal and after giving opportunity to the parties shall decide its valuation and direct for giving 262/984 share compensation to the petitioner. The petitioner will have no claim over boring except compensation. Petition Partly Allowed.