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2016 DIGILAW 3175 (ALL)

Baburam v. Board of Revenue Meerut

2016-09-16

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri Satyendra Narayan Singh, for the petitioners and Sri Raj Kumar Kesari, for the contesting respondents-4 to 8, 10, 11, 12, 14 to 26. 2. This writ petition has been filed against the orders of Assistant Collector dated 10.08.2015, approving the kurra and passing final decree in partition suit, Additional Commissioner dated 20.10.2015 and Board of Revenue, U.P. dated 12.05.2016, dismissing the appeal and second of the petitioners in the suit under Section 176 of U.P. Zamindari Abolition And Land Reforms Act, 1950 (hereinafter referred to as the Act). 3. Raghuveer and Ashok (respondents-4 and 5) filed a suit (registered as Suit No. 77 of 2013-14) under Section 176 of the Act, for division of their 1/9 share in plots 54 (area 0.1900 hectare), 55 (area 0.8980 hectare), 66 (area 0.6450 hectare) and 67 (area 3.1490 hectare) of village Jasroop Nagar, Dastoi Road, tahsil and district Hapur. Some of the defendants filed their separate written statement and contested the suit on the ground that land in dispute had already been partitioned between the parties by metes and bound. However, Assistant Collector, by order dated 27.08.2014 passed the preliminary decree, holding the share of the plaintiffs as 1/9 jointly. Share of the defendants have also been decided. None of the parties challenged the preliminary decree. In pursuance of preliminary decree, Lekhpal prepared kurra and submitted in Court on 24.09.2014. There were two plaintiffs and 25 defendants but Lekhpal prepared 8 kurra, allotting kurra to several co-sharers jointly. The co-sharers whose kurra were jointly allotted had no objection. 4. Ompal (defendant-1), Lekhpal (defendant-3), Raj Kumar, Baburam, Dinesh (defendants-7 to 9), Sunil alias Ombir and others (heirs of defendant-10), Dharmpal and Devendra (defendants-14 and 15) filed their separate objections to the kurra and stated that kurra was prepared in collusion with the plaintiffs without spot inspection. There has been private partition between the co-sharers and they were in separate possession over it but kurra was not prepared according to the previous possession of the parties. Plot 55 situates on Dastoi-Hapur road and is land of commercial value but they were illegally not allotted this plot in their kurra. In support of objections, they also examined Dharmpal (DW-1), Baburam (DW-2), Vishal alias Daini (DW-3), Rampal (DW-4) and Charan Singh (DW-5). On behalf of the plaintiff, Ashok was examined as (PW-1). Statement of Mohd. Plot 55 situates on Dastoi-Hapur road and is land of commercial value but they were illegally not allotted this plot in their kurra. In support of objections, they also examined Dharmpal (DW-1), Baburam (DW-2), Vishal alias Daini (DW-3), Rampal (DW-4) and Charan Singh (DW-5). On behalf of the plaintiff, Ashok was examined as (PW-1). Statement of Mohd. Riyazuddin alias Raju, Lekhpal was also recorded. Sub-Divisional Officer, by order dated 10.08.2015, held that there was no previous partition between the parties. Lekhpal has prepared kurra according to previous possession of the parties and there is no illegality in it. On these findings, he affirmed the kurra and passed final decree in partition suit. 5. The petitioners filed an appeal (registered as Appeal No. 61 of 2014-15) from the aforesaid decree. Additional Commissioner, after hearing the parties, by order dated 20.10.2015 held that Lekhpal in his statement has stated that kurra was prepared according to previous possession of the parties. Previous partition between the parties is not proved. Assistant Collector has not committed any illegality in affirming the kurra. On these findings, the appeal was dismissed. The petitioners filed a second appeal (registered as Second Appeal No. 17, ZA (M) of 2015-16) from the aforesaid decree. In the meantime, the allottee of kurra-1 also got an order of Sub-Divisional Officer under Section 143 of U.P. Act No. 1 of 1951. The petitioners filed a revision (registered as Revision No. 16 of 2015-16) against that order. Board of Revenue, U.P. consolidated Second Appeal and the Revision and heard together and by order dated 12.05.2016, affirmed the findings of Courts below and dismissed second appeal and revision. Hence this writ petition has been filed. 6. I have considered the arguments of the counsels for the parties and examined the record. A perusal of statement of Lekhpal, Mohd. Riyazuddin shows that he has stated that he had prepared kurra according to consent of the parties and on the basis of their possession. When he inspected spot on 19.09.2014 for preparation of kurra, the land was vacant and there was no crop. Contrary to it, Ashok in his statement has stated that in the share of Smt. Lajja Singh, there was crop of bajra and her share was separate. This clearly proves that Lekhpal has not prepared kurra on the spot. When he inspected spot on 19.09.2014 for preparation of kurra, the land was vacant and there was no crop. Contrary to it, Ashok in his statement has stated that in the share of Smt. Lajja Singh, there was crop of bajra and her share was separate. This clearly proves that Lekhpal has not prepared kurra on the spot. All the courts below have recorded a contrary findings that there was no partition between the co-sharers, in the disputed land, although from aforesaid statements it was proved that parties were in separate possession. They have also installed their separate tube-well. Thus the orders have been passed without examining materials on record. 7. Section 176 of the Act provides for a suit for division of joint holding. Section 182-B of the Act provides division of a holdings or the separation of share therein of a bhumidhar shall be made by the Court in accordance with the principles that may be prescribed. Principles for partition of holding has been provided under Rule 131 of the Rules. Under Rule 158 of the Rules provisions contained under Rules 127 to 132 have been mutatis mutandis applied for division of the holdings. In order to appreciate the arguments Rule 131 is quoted below- Rule 131 (1): - In making partition of holding into two or more portions the following principles shall be observed: - (a) The valuation of the portion allotted to each party shall be proportionate to his share in the holding; (b) The portion allotted to each party shall be as compact as possible; (c) As far as possible no party shall be given all the inferior or all the superior classes of land (d) As far as possible existing field shall not be spit up (e) Plots which are in separate possession of a tenure holder shall as far as possible be allotted to such tenure holder if they are not in excess of his share. 8. Rule 131 (1) (a) provides that the valuation of the portion allotted to each party shall be proportionate to his share in the holding. The petitioners took plea that plot 55 situates on Dastoi-Hapur main road and has commercial value. The respondents have not denied this fact but stated that in east of plot 67 also there is a road. Rule 131 (1) (a) provides that the valuation of the portion allotted to each party shall be proportionate to his share in the holding. The petitioners took plea that plot 55 situates on Dastoi-Hapur main road and has commercial value. The respondents have not denied this fact but stated that in east of plot 67 also there is a road. Lekhpal, in his statement, has admitted that this eastern road is a kachcha road and in between this road and plot 67 there is 10 feet wide nala. Market value of plot 55 and 67 cannot be said to be equal. According to the principles under Rule 131 (1) (a), valuation of the portion allotted to each party shall be proportionate to his share in the holding. Assistant Collector is not justified in allotting share to some of the co-sharers giving frontage on roadside in plot 55 and totally depriving the petitioners from plot 55. Supreme Court in M.L. Subbaraya Setty v. M.L. Nagappa Setty, (2002) 4 SCC 743 , held that the legal position is well settled that on mere severance of status of joint family, the character of any joint family property does not change with such severance. It retains the character of joint family property till partition. We may also clarify that the direction that the present possession of the parties shall be respected as far as possible also does not mean that if the plaintiff is not in possession of any immovable property and the same are in possession of the defendants, he could not be allotted the immovable property even though he is so entitled as per his share. If that was so, the words "as far as possible" in the said direction would become redundant. 9. Plot 54 is adjacent to plot 55 and form a compact area on the spot. Plot 55 has a big frontage on Dastoi-Hapur road. Total area of plot 54 and 55 is 1.0880 hectare. Tenure holders of kurra-1 together have 17/30 share. They were allotted an area of 0.8381 hectare in plots 54 and 55. The petitioners together have 7/30 share but they were not allotted any land in plots-54 and 55. The principles as provided under Rule 131 (1) (a) have not been followed, in as much as the petitioners have been deprived from land of commercial value. 10. In final decree 8 kurras were prepared. The petitioners together have 7/30 share but they were not allotted any land in plots-54 and 55. The principles as provided under Rule 131 (1) (a) have not been followed, in as much as the petitioners have been deprived from land of commercial value. 10. In final decree 8 kurras were prepared. Plots 54 and 55 form compact area. In the same way plots 66 and 67 form compact area. In case plots 54 and 55 are divided in north south giving frontage to all the co-sharers on Dastoi-Hapur road according to their share then partition according to principles contained under Rule 131 (1) (a) may be complied with. Similarly compact area of plots 66 and 67 may be divided in east west giving a common rast in west, according to their share. 11. In view of the aforesaid discussion, the writ petition succeeds and is allowed. The kurra dated 24.09.2014, orders of Assistant Collector dated 10.08.2015, Additional Commissioner dated 20.10.2015 and Board of Revenue, U.P. dated 12.05.2016 are set aside. The matter is remanded to Assistant Collector for obtaining fresh kurra relating partition and after hearing the parties pass fresh final decree in partition suit.