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2024 DIGILAW 842 (ALL)

Manoj v. State of U. P.

2024-03-18

SARAL SRIVASTAVA

body2024
JUDGMENT : (Saral Srivastava, J.) Heard learned counsel for the petitioners and learned Standing Counsel. 2. The petitioners by means of the present petition under Article 227 of the Constitution of India have assailed the order dated 27.12.2023 passed by Additional Commissioner-II Kanpur Division, Kanpur by which he has allowed the appeal of respondent No. 5 against the order dated 6.5.2022 of Sub Divisional Magistrate, Tehsil Kayamganj, District Farrukhabad in Case No. 2053 of 2022 (Computerized Case No. T202203240202053) for preparation of the preliminary decree. 3. The brief facts of the case are that the petitioners instituted case No. 2053 of 2022 under Section 116 of U.P. Revenue Code, 2006 for partition and determination of their share concerning plots No. 82, 166 and 292 (Min.) situated in Village Papri Khurd Buzurg Pargana Shamshabad Paschim Tehsil Kayamganj, District Farrukhabad. The case of the petitioners was that the petitioners have inherited the property by succession and are owners in possession of the property. 4. It appears that a notice was issued to respondent No. 5, but respondent No. 5 did not contest the proceeding, consequently, the Sub-Divisional Magistrate proceeded ex-parte and passed an order dated 6.5.2022 determining the share of the petitioners/plaintiff and other co-tenure holders and decreed the suit, and thereafter, he prepared a preliminary decree declaring the share of the plaintiff. Accordingly, an order was passed for the preparation of Kurra in the light of the preliminary decree passed by the Sub Divisional Magistrate and respondent No. 5 was given the right to object to the preparation of Kurra. 5. Feeling aggrieved by the order dated 6.5.2022, respondent No. 5 preferred an appeal which was allowed by the appellate authority vide order dated 27.12.2023. The order dated 27.12.2023 is impugned in the writ petition. 6. Challenging the aforesaid order, learned counsel for the petitioners has contended that the order of preparation of preliminary decree dated 6.5.2022 is interlocutory, therefore, First Appeal under Section 207 of the U.P. Revenue Code, 2006 would not lie. It is submitted that the appropriate remedy for the petitioners was to file a revision under Section 210 of the U.P. Revenue Code, 2006. Thus, it is contended that since the appeal under Section 207 of the U.P. Revenue Code, 2006 against the interlocutory order is not maintainable, therefore, the order passed by the appellate authority is per se illegal and not sustainable in law. 7. Thus, it is contended that since the appeal under Section 207 of the U.P. Revenue Code, 2006 against the interlocutory order is not maintainable, therefore, the order passed by the appellate authority is per se illegal and not sustainable in law. 7. To buttress the aforesaid submission, learned counsel for the petitioners has placed reliance upon Section 209 (f) of the U.P. Revenue Code, 2006 to submit that it is clear from the reading of Section 209 of the U.P. Revenue Code, 2006 that no appeal shall lie against any order or decree where such order or decree is interlocutory. Accordingly, it is submitted that since there is a specific bar of Section 209 (f) of the U.P. Revenue Code, 2006 for filing a First Appeal against the order of preliminary decree as the preliminary decree is interlocutory, therefore, the appellate authority has erred in law in entertaining the appeal. 8. It is further contended that in the instant case, it is not disputed that the order is an ex-parte order, therefore, the proper remedy for respondent No. 5 was to prefer a recall application to recall the order, and appeal would not lie because of Section 209 (f) of the U.P. Revenue Code, 2006. Accordingly, it is contended that there was an inherent lack of jurisdiction with the appellate authority to entertain the appeal, and thus, the appeal should not have been entertained and should have been dismissed by the appellate authority. In support of his contention, learned counsel for the petitioners has placed reliance upon the judgment of this Court in the case of Amarjeet v. State of U.P. through Principal Secretary Revenue, LKO and another, 2021(3) ADJ 312 (LB). 9. Per contra, learned Standing Counsel would contend that the preliminary decree adjudicates the right of the parties and determines the share of the parties, and a glance at sub-rule 3 of Rule 109 of U.P. Revenue Code Rules, 2016 makes it clear that after determination of shares, the suit is decreed, and the Court, thereafter, passes a preliminary decree declaring the shares of the plaintiff. Thus, it is contended that the expression used in sub-Rule 3 'if the suit is decreed'' expresses the intention of the legislature that after the suit is decreed, the preliminary decree is prepared. Thus, it is contended that the expression used in sub-Rule 3 'if the suit is decreed'' expresses the intention of the legislature that after the suit is decreed, the preliminary decree is prepared. Thus, it is contended that the nature of the order declaring preliminary decree is a final order, and by no stretch of imagination, it is said to be an interlocutory order. Accordingly, it is contended that the writ petition lacks merit and deserves to be dismissed. 10. I have considered the rival contentions of learned counsel for the parties and perused the record. 11. The suit has been instituted by the petitioners for division of their holding with respect to plots No. 82, 166 and 292 (Min.). The suit has been decreed ex-parte and a preliminary decree has been prepared by the Sub Divisional Magistrate vide order dated 6.5.2022, and further direction was issued for preparation of Kurra and after preparation of Kurra, the liberty was given to respondent No. 5 to object to the preparation of such Kurra. 12. Now the Court proceeds to test the argument of learned counsel for the petitioners whether the order of the Sub Divisional Magistrate dated 6.5.2022 is interlocutory. 13. To appreciate the said issue, it would be necessary to have a glance at Sections 116 and 117 of the U.P. Revenue Code, 2006 which are reproduced below: ''116. Suit for division of holding.- (1) A bhumidhar may sue for the division of the holding of which he is a co-sharer. (2) In every such suit, the Court may also divide the trees, wells and other improvements existing on such holding but where such division is not possible, the trees, wells and other improvements aforesaid and valuation thereof shall be divided and adjusted in the manner prescribed. (3) One suit may be instituted for the division of more holdings than one where all the parties to the suit other than the [Gram Panchayat] are, jointly interested in each of the holdings. (4) To every suit under this section, the [Gram Panchayat] concerned shall be made a party. 117. Duty of Court in suits for division of holding.-(1) In every suit for division of holding under Section 116 the Court of Assistant Collector shall- (a) follow such procedure as may be prescribed; (b) apportion the land revenue payable in respect of each such division. 117. Duty of Court in suits for division of holding.-(1) In every suit for division of holding under Section 116 the Court of Assistant Collector shall- (a) follow such procedure as may be prescribed; (b) apportion the land revenue payable in respect of each such division. (2) A division of holding referred to in Section 116 shall not affect the joint liability of the tenure-holders thereof in respect of the land revenue payable before the date of the final decree.'' 14. It is also relevant to have a glance at Rules 108 and 109 of U.P. Revenue Code Rules, 2016 which are reproduced below: ''108. Suit for division for several holdings (Section 116).-Where the suit relates to the division of more than one holding, the particulars specified in Rule 107 shall be mentioned in the plaint in respect of all such holdings. 109. Preliminary and Final decrees (Section 117).-(1) If the plaint referred to in Rule 107 or Rule 108 is in order, it shall be registered as a suit and the defendants shall be called upon to file their written statements. The suit shall then be decided according to the provisions of the Code of Civil Procedure, 1908. (2) Before making a division the Court shall- (a) determine separately the share of the plaintiff and each of the other co-tenure holders; (b) record which, if any, of the co-tenure holders wish to remain joint, and (c) make valuation of the holding (or holdings) in accordance with the circle rate fixed by the Collector applicable to each plot in the holding. (3) If the suit is decreed, the Court shall pass a preliminary decree declaring the share of the plaintiff. (4) After the preparation of preliminary decree the Sub Divisional Officer shall get the Kurra prepared through the Lekhpal. (5) The Lekhpal shall submit the Kurra report within a period of one month from the date of receiving the order in this regard and at the time of preparation of Kurra he shall observe the following principles- (a) the plot or plots shall be allotted to each party in 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 fields shall not be split up; (e) Plots which are in the separate possession of a tenure holder shall, as far as possible, be allotted to such tenure holder if they are not in access of his share; (f) If the plot or any part thereof is of commercial value or is adjacent to road, abadi or any other land of commercial value, the same shall be allotted to each tenure holder proportionately and in the case of second condition the same shall be allotted proportionately adjacent to road, abadi or other land of commercial value; and (g) If the co-tenure holders are in separate possession on the basis of mutual consent or family settlement, the Kurra shall, as far as possible, be fixed accordingly. (6) When the report regarding Kurra is submitted by the Lekhpal, the objection shall be invited thereon and thereafter the appropriate order shall be passed by the Sub Divisional Officer after affording opportunity of hearing to the parties and considering the objection, if any, filed against the report submitted by the Lekhpal. (7) If the report and Kurra is confirmed by the Sub Divisional Officer, the final decree shall follow it. (8) At the stage of the final decree, the Court shall- (a) Separate the share of the plaintiff from that of the defendant by metes and bounds. (b) Place on record a map showing in different colours the properties given to plaintiff as distinct from those given to the defendant. (c) Apportion the land revenue payable by the parties. (d) Direct the record of rights and map to be corrected accordingly. (9) If, for adjusting the equities between the parties, payment of compensation regarding trees, wells or other improvements becomes necessary, the revenue Court concerned may also pass necessary orders at the stage of final decree. (10) The Sub-Divisional Officer shall make an endeavour to decide the suit within the period of six months and if the suit is not decided within such period, the reason shall be recorded. 15. (10) The Sub-Divisional Officer shall make an endeavour to decide the suit within the period of six months and if the suit is not decided within such period, the reason shall be recorded. 15. Now before dealing with the argument whether the appeal would lie against the order of preliminary decree, the Court proceeds to analyse the scope of Sections 116 and 117 of the U.P. Revenue Code, 2006 and the Rules 108 and 109 framed thereunder. 16. Under Section 116 (1) of the U.P. Revenue Code, 2006, it is provided that a Bhumidhar is given a right to sue for the division of his holding of which he is a co-sharer. 17. Section 116 (2) of the U.P. Revenue Code, 2006 provides for the division of holding and confers the power upon the Court to divide the trees, wells and other improvements existing on such holding. It further empowers the Court that in case the division of trees, wells and other improvements existing on holding is not possible, it may make a valuation of the same and divide the same in the manner prescribed under the Rules. 18. Section 116 (3) of the U.P. Revenue Code, 2006 provides that one suit may be instituted for the division of more holdings than one. 19. Section 116 (4) of the U.P. Revenue Code, 2006 mandates that in every suit for partition, the Gram Panchayat is to be impleaded as a party. 20. Section 117 (1) of the U.P. Revenue Code, 2006, relevant in the context of the present case, prescribes that in a suit for division of holding under Section 116 of the U.P. Revenue Code, 2006, the Assistant Collector shall follow the procedure as may be prescribed, and apportion the land revenue payable in respect of each sub-division. 21. It is clear from Section 117 (1)(a) of the U.P. Revenue Code, 2006 that while adjudicating the suit for division of holding, the Assistant Collector shall follow the prescribed procedure. The procedure has been provided in Rule 109 of the U.P. Revenue Code Rules, 2016. Therefore, in view of Section 117 (1)(a) of the U.P. Revenue Code, 2006, the Assistant Collector is obligated to follow the procedure prescribed under Rule 109 of the U.P. Revenue Code Rules, 2016. 22. The procedure has been provided in Rule 109 of the U.P. Revenue Code Rules, 2016. Therefore, in view of Section 117 (1)(a) of the U.P. Revenue Code, 2006, the Assistant Collector is obligated to follow the procedure prescribed under Rule 109 of the U.P. Revenue Code Rules, 2016. 22. The title of Rule 109 of the U.P. Revenue Code Rules, 2016 is 'preliminary and final decrees' and it refers to Section 117 of the U.P Revenue Code, 2006. It further provides that if a suit instituted by the parties is in order, it shall be registered as a suit and the defendants shall be called upon to file their written statements. It further provides that the suit shall be decided according to the provisions of the Code of Civil Procedure. So the procedure which the Collector has to follow in deciding the suit is the procedure contemplated under the Code of Civil Procedure. 23. In the present case, the issue as to whether the preliminary decree is interlocutory or final can be considered in the light of language employed by the legislature in sub-Rules 2, 3 and 4 of Rule 109 of the U.P. Revenue Code Rules, 2016. 24. Now Rule 109 (2) of the U.P. Revenue Code Rules, 2016 casts a duty upon the Court of Collector that before making a division, the Court shall determine separately the share of the plaintiff and each of the other co-tenure holders. After determining the share separately, the Court shall record if any of the co-tenure holders wish to remain joint, and thereafter, the Court shall make the valuation of the holding (or holdings) in accordance with the circle rate fixed by the Collector with regard to the plot. So in other words, before making the division, the Collector under Rule 109 (2)(a) of the U.P. Revenue Code Rules, 2016 is mandated to determine the shares of the plaintiffs and each of the co-sharers. Thus, at the stage of Rule 109 (2)(a), the shares of co-tenure holders are determined by the Court. 25. Now in the light of said interpretation, it is apt to consider the language employed by the legislature in Rule 109 (3) of the U.P. Revenue Code Rules, 2016 which begins with ''if the suit is decreed'', the Court shall pass a preliminary decree declaring the share of the plaintiff. 26. 25. Now in the light of said interpretation, it is apt to consider the language employed by the legislature in Rule 109 (3) of the U.P. Revenue Code Rules, 2016 which begins with ''if the suit is decreed'', the Court shall pass a preliminary decree declaring the share of the plaintiff. 26. At this juncture, it would be relevant to have the definition of the decree as defined in Section 4 (26) of the U.P. Revenue Code, 2006 which is reproduced below: ''4(26). 'decree' shall have the meaning assigned to it in Section 2 of the Code of Civil Procedure, 1908.'' 27. From reading Section 4 (26) of the U.P. Revenue Code, 2006, it is clear that the word 'decree' is assigned the same meaning as in Section 2 (2) of the Code of Civil Procedure. Therefore, it will be apposite to have a glance at the definition of decree prescribed in the Code of Civil Procedure, 1908 which is reproduced below: ''2. Definitions.-In this Act, unless there is anything repugnant in the subject or context,- (2). 'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation.-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;'' 28. Section 2(2) of the Code of Civil Procedure defines the decree which means the formal expression of adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in the controversy in the suit and may be preliminary decree or final decree. The explanation to Section 2(2) of the Code of Civil Procedure further defines a decree is a preliminary decree when further proceedings have to be taken before the suit can be completely disposed of. The explanation to Section 2(2) of the Code of Civil Procedure further defines a decree is a preliminary decree when further proceedings have to be taken before the suit can be completely disposed of. So there is no doubt about the fact that the 'decree' signifies comprehensive adjudication of the rights of the parties with regard to any of the matters in the controversy in the suit and it can be a preliminary decree. 29. The incorporation of the expression ''if the suit is decreed'' in Rule 109(3) clarifies that before preparation of the 'Preliminary Decree', shares of co-tenure holders have been determined under Rule 109 (2) and the suit is decreed, and only after that, Court assumes the power to pass a preliminary declaring the share of the plaintiff. In other words, the preliminary decree declaring the share of the plaintiff shall be passed by the Court only after the share of co-sharers in the holding is determined by the Court under Rule 109(2) and suit is decreed, and, thereafter, the Sub Divisional Officer shall get the Kurra prepared through the Lekhpal. Therefore, the contention of learned counsel for the petitioner that since at the stage of preliminary decree, the rights have not been comprehensively determined and co-sharers still have the right to raise objection lack substance for the reason that after the suit is decreed as is evident from Rule 109 (3), the preliminary decree is prepared and Kurra is prepared in accordance with the share determined by the Court. 30. Rule 109 (5) of the U.P. Revenue Code Rules, 2016 provides how the Kurra is to be prepared. Rule 109 (6) of the U.P. Revenue Code Rules, 2016 gives the right to the tenure holders to submit an objection to the Sub Divisional Officer concerning the preparation of the Kurra. After the Kurra is confirmed by the Sub Divisional Magistrate, the final decree is prepared under Rule 109 (7) of the U.P. Revenue Code Rules, 2016. 31. So the limited objection that the co-tenure holder can raise after the preparation of Kurra in the light of the preliminary decree is with regard to making of Kurra if it is not prepared in accordance with the share determined under the preliminary decree, and after the confirmation of Kurra, the final decree is prepared and the suit concludes. 32. So the limited objection that the co-tenure holder can raise after the preparation of Kurra in the light of the preliminary decree is with regard to making of Kurra if it is not prepared in accordance with the share determined under the preliminary decree, and after the confirmation of Kurra, the final decree is prepared and the suit concludes. 32. Therefore, given the detailed deliberation, the expression ''if the suit is decreed'' incorporated by legislature in Rule 109 (3) if read with Rule 109 (2)(a), manifests the intention of the legislature that before preparation of preliminary decree, the right of the parties with respect to their share in the holding is determined and their rights regarding their shares in the holding are conclusively adjudicated and the suit is decreed, and to say that before preparation of preliminary decree, the rights of the parties are not determined, that would be a misinterpretation of language used in Rule 109 (3). Therefore, the contention of learned counsel for the petitioners that appeal under Section 207 of the U.P. Revenue Code, 2006 would not lie against the preliminary decree being interlocutory is not sustainable in law for the aforesaid reason. 33. Now so far as the judgment relied upon by learned counsel for the petitioners is concerned, in the said case, the Court has not considered the object of incorporating the expression ''if the suit is decreed'' by the legislature in Rule 109 (2) of the U.P. Revenue Code Rules, 2016 which mandates that the Court is empowered to pass a preliminary decree only on the contingency that if the Suit is decreed. In such view of the fact, the judgment of this Court in the case of Amarjeet (supra) is distinguishable and does not apply to the facts of the present case. 34. In such view of the fact, the judgment of this Court in the case of Amarjeet (supra) is distinguishable and does not apply to the facts of the present case. 34. The submission of learned counsel for the petitioners that the appeal against the order of Sub-Divisional Magistrate being ex parte order shall not lie in view of specific bar under Section 209 (h) of the U.P. Revenue Code, 2006 is also misconceived for the reason that Section 209 (h) of the U.P. Revenue Code, 2006 uses the word 'order' and it does not talk of the word 'decree' whereas in the present case, suit is decreed concerning the rights of the co-tenure holders regarding their share before preparation of preliminary decree, and therefore, Section 209 (h) of the U.P. Revenue Code, 2006 would also not come in the aid of the petitioners. 35. In such view of the fact, this Court does not find any merit in the writ petition and is accordingly dismissed with no order as to costs.