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2024 DIGILAW 2522 (ALL)

Alauddin v. State Of U. P.

2024-12-13

SAURABH SHYAM SHAMSHERY

body2024
JUDGMENT : Saurabh Shyam Shamshery, J. 1. Heard Sri Brijesh Shukla, Advocate holding brief of Sri Harish Kumar Tripathi, learned counsel for the petitioners, Sri Devesh Kumar Verma on behalf of respondent no.10, Sri Sudhir Bharti on behalf of Gaon Sabha and Sri A.K.Chaurasia, learned Additional Chief Standing Counsel. 2. One Mussamt Salami had executed a registered sale deed on 6.2.1984 in favour of her three sons-in-law namely:Iddan (father of petitioners), Fazil (father of respondent nos.6, 7 and 8) and Asgar, respondent no.9 of her entire shares of her land in question on due consideration. 3. Subsequently, Fazil has executed a sale deed on 3.8.1987 in favour of Fekani (mother of petitioners) of some part of the land in question. 4. After death of Fekani, names of the petitioner were entered in the revenue records as legal heirs. 5. The petitioner nos. 1 and 2 filed a partition suit under Section 176 of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter called the 'Act of 1950') on 5.12.2009 for partition of aforesaid part of land in dispute being a co-sharer. 6. In the said proceedings, Halka Lekhpal submitted a Kurrafat on 17.1.2011 and according to petitioners same were against the provisions of Rule 131 of Uttar Pradesh Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter called the 'Rules of 1952'), as such they have filed objections on 23.2.2011. For reference, relevant part of objections are mentioned hereinafter: 7. Learned Trial Court vide order dated 31.3.2011 accepted Kurrafat submitted by the Halka Lekhpal and rejected objections filed by the petitioners. Relevant part thereof is mentioned hereinafter: 8. Petitioners being aggrieved by the aforesaid order filed an Appeal before Commissioner, Gorakhpur and relevant grounds taken therein are mentioned hereinafter: 9. Petitioners have filed a written submissions and relevant part thereof is mentioned hereinafter: 10. Commissioner, Gorakhpur dismissed the Appeal vide order dated 22.3.2018 and relevant part thereof is mentioned hereinafter: 11. In the aforesaid circumstances, petitioners filed a Second Appeal before the Board of Revenue wherein following substantial questions of law were raised: "A. Whether, both the Courts below justified in passing impugned judgment and order in Uttar Violation of the law? Commissioner, Gorakhpur dismissed the Appeal vide order dated 22.3.2018 and relevant part thereof is mentioned hereinafter: 11. In the aforesaid circumstances, petitioners filed a Second Appeal before the Board of Revenue wherein following substantial questions of law were raised: "A. Whether, both the Courts below justified in passing impugned judgment and order in Uttar Violation of the law? B. Whether, the Lower Appellate Court has justified the impugned order without recording his own finding with regard to grounds taken by the appellants that all the parties are entitled to obtain share equally upon the road side and the learned trial court has justified by passing impugned order against the law?" 12. The Board of Revenue vide order dated 17.10.2024 dismissed the Second Appeal that no substantial questions of law was involved. Relevant part thereof is mentioned hereinafter: 13. Learned counsel for the petitioners submitted that objections were filed to Kurrafat, however, it was rejected without any consideration on basis of objections. Report of the Lekhpal was accepted without considering that it was contrary to the provisions of Rule 131 of the Rules, of 1952. 14. Learned counsel for the petitioners further submitted that all the parties ought to have been given equal share on the P.W.D. Road which was admittedly not granted only on a ground that land has been sold and there are constructions, without specific area and the objections were illegally rejected. 15. Appellate Court and Board of Revenue have failed to consider specific grounds and the questions of law framed in the memo of Appeal and Second Appeal respectively. 16. Learned counsel for the petitioners further placed reliance on judgments of co-ordinate Bench in Daya Shanker & Ors. Vs. Board of Revenue & Ors, 2022 0 Supreme (All) 942 , Ram Ji Lal Vs. The Board of Revenue Alld & 5 Ors, Neutral Citation No.2015:AHC:140755 and Baburam and 9 Others Vs. Board of Revenue Merut & 28 Ors, 2016, (133) R.D 459 He referred paras 7 and 8 of Baburam (supra) which are as under: "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. 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. 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. 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 748 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." 17. Learned counsel for the contesting respondents submitted that objections of the petitioners were rightly rejected. The Kurras were prepared on the basis of possession. The land in dispute has been subsequently sold and vendees are in possession of their respective part of the land in dispute and they have also constructed some houses, therefore, at this stage to disturb their possession would be against the principles as referred in Rule 131 of the Rules, of 1952. No prejudice is caused to the petitioners and since now value of land abut to PWD has increased, therefore, petitioners wants to grab the land. 18. Heard learned counsel for the parties and perused the records. 19. From the above referred factual aspects of the case, it is quite clear that specific objections were taken by the petitioners including that Kurrafat was not prepared in accordance with the provisions of Rule 131 (1) of the Rules of 1952 which also incudes that as far as possible no party shall be given all the inferior or all the superior classes of land i.e. no one be put on better position to cause prejudice to other parties. 20. Learned Trial Court has rejected the objections of the petitioners without giving any consideration to it. 21. 20. Learned Trial Court has rejected the objections of the petitioners without giving any consideration to it. 21. From the above referred order passed by learned Trial Court, it would be evident that evidence in regard to above referred Rule was not complied with, principle were not even taken note of, therefore, an illegality has been committed. 22. Similarly, despite specific grounds were taken in the memo of the Appeal and in the memo of the Second Appeal, both the Appellate Courts have not examined as to whether provisions of Rule 131 of the Rules, of 1952 were followed or not and in a very cursory manner, First and Second Appeal were rejected only on a ground that there are some constructions of houses etc. 23. In aforesaid circumstances, petitioners have made out a case for interference, therefore, orders impugned dated 31.3.2011, 22.3.2018 and 17.10.2024 are set-side and the matter is remanded to learned Trial Court to pass a fresh order considering the objections of the petitioners as well as taking note of Rule 131 of the Rules of 1952 and also of judgments passed in Daya Shanker, Ram Ji Lal and Baburam (supra) and a decision will be taken in a very short period in accordance with law after hearing all the parties. 24. With aforesaid direction, this writ petition is disposed of.