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2020 DIGILAW 922 (ALL)

Haneef v. State of U. P.

2020-06-02

ANJANI KUMAR MISHRA

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JUDGMENT : Anjani Kumar Mishra, J. 1. Heard Shri R.P.S. Chauhan, learned Counsel for the petitioner. 2. The instant writ petition arises out of a suit for partition filed by the petitioner and seeks a writ of certiorari for quashing the order dated 31.1.2018 passed by the Additional Commissioner (Administration), Moradabad Division, Moradabad in a revision filed by the contesting respondents, whereby the revision was allowed, the final decree in the suit for partition was set-aside and the matter was remanded back to the Trial Court to prepare a final decree keeping in mind the possession of the parties. The order dated 22.11.2018 passed by the Sub-Divisional Officer consequent to the order of remand aforenoted and the revisional order dated 29.7.2019, whereby the order of the Sub-Divisional Officer has been affirmed are under challenge. 3. The contention of learned Counsel for the petitioner is that a false statement had been made by the opposite side that a specific portion of the land had been sold to her. In fact the owner of the plot in question, namely plot No. 140/408 area 0.409 hectares, situated in village Shah Alampur, Tehsil and District Moradabad, was purchased by the petitioner and one Smt. Mohar Shri jointly. 4. Mohar Shri was the wife of the vendor. She in turn sold her share in favour of Smt. Urmila and Smt. Pushpa who in turn sold their share to the contesting respondents. The sale-deed was of an unpartitioned plot and, therefore, it should have been partitioned on the basis of the valuation of the land, because possession of joint holders is deemed possession over every each of the land. 5. The petitioner is aggrieved as he has been allotted land away from the main road and on the rear. The final decree for partition is, therefore, highly inequitable. The writ petition is, therefore, liable to be allowed and the matter is liable to be remanded back to the Trial Court for preparing a fresh final decree in. the suit for partition. 6. I have considered the submissions made by learned Counsel for the petitioner and perused the record. 7. Petitioner has challenged an order dated 31.1.2018 passed by the Additional Commissioner, whereby an earlier final decree was set aside and the matter is remanded back with certain directions. the suit for partition. 6. I have considered the submissions made by learned Counsel for the petitioner and perused the record. 7. Petitioner has challenged an order dated 31.1.2018 passed by the Additional Commissioner, whereby an earlier final decree was set aside and the matter is remanded back with certain directions. In this order, the revisional Court found that lots had been prepared on the basis of the valuation of the land to be partitioned. He set aside this matter and remanded it back, directing the Trial Court to prepare a fresh final decree of partition in accordance with the possession of the parties. This was so directed because it was found that the vendor of the petitioner and Smt. Mohar Shri had effected a partition and transferred specific portions in favour of the two joint purchasers, each having half share in the land in question. It was also found that the parties were in possession accordingly. This order of remand was never challenge' by the petitioner earlier. It has been challenged now after this order has been given effect too by the Trial Court and when the consequential revision directed against the order of the Trial Court has also been dismissed. 8. Therefore, this Court is constrained to hold that the order of remand dated 31.1.2018 has already worked itself out and two consequential orders have resulted. In my considered opinion, challenge to the order of remand at this stage is not liable to be entertained. Nothing prevented the petitioner from challenging the order dated 31.1.2018, in case the same was contrary to his interest or illegal. 9. Insofar as the order dated 22.11.2018, is concerned it has accepted the report of the Lekhpal that the lots prepared by him are in accordance with the possession of the parties. The finding that the lots prepared are in accordance with the possession of the parties and since this was the precise direction contained in the order of remand passed by the Additional Commissioner on 31.1.2018, the finding is a finding of fact, not liable to be interfered with in exercise of writ jurisdiction under Article 226 of the Constitution of India. 10. Moreover, learned Counsel for the petitioner has not been able to point out any perversity in the impugned order. 10. Moreover, learned Counsel for the petitioner has not been able to point out any perversity in the impugned order. The Revisional Court has dismissed the revision holding that once the order dated 31.1.2018 had attained finality, the Trial Court could not have proceeded to draw up the lots in accordance with the valuation of the land. The lots, consequent to the final order of remand were required to be drawn up on the basis of possession of the parties. Since the directions in the order of remand had been duly adhered to, the final decree in the suit for partition drawn up accordingly was not liable to be interfered with. 11. I am in agreement with the observations made by the Revisional Court. As already noticed above, the final decree has been drawn up in accordance with the directions contained in the order dated 31.1.2018 passed by the Additional Commissioner, which order was never challenged by the petitioner earlier. It had therefore, attained finality and cannot be interfered with now, after the Trial Court has complied with it and drawn up the final decree in its accordance and the order of the Trial Court has also been affirmed. 12. From the facts noticed above, it is clear that the petitioner is trying to reopen issues which have attained finality. A direction, which has attained finality between the parties, since the order dated 31.1.2018 was never challenged by the petitioner earlier. Having permitted an order of remand containing specific directions to attain finality, petitioner is bound by the same, and cannot be permitted to plead to the contrary, specially when the directions have been implemented by two Courts below. 13. In view of the foregoing discussion, the writ petition is found to be without substance. It is, hereby, dismissed.