HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 6 Reserved AFR Case :- WRIT - B No. - 52080 of 2015 Petitioner :- Malkhan And 3 Others. Respondent :- Board Of Revenue Lko. And 5 Others. Counsel for Petitioner :- Prakash Chandra Yaday,Lallan Verma, N.C. Rajbanshi Counsel for Respondent :- C.S.C.,B.P. Singh,Rajeev Mishra, Naveen Sinha, M.N. Singh Hon'ble Ram Surat Ram (Maurya),J.
1. Heard Sri N.C. Rajbanshi, Senior Advocate, assisted by Sri Lallan Verma, for the petitioners and Sri Naveen Sinha, Senior Advocate, assisted by Sri Rajeev Mishra, for the contesting respondent-4.
2. This writ petition has been filed against the orders of Assistant Collector dated 13.10.2014 and 18.10.2014, approving the kurra and directing for preparation of final decree, Additional Commissioner dated 24.03.2015 and Board of Revenue, U.P. dated 23.07.2015, dismissing the appeal and second of the petitioners in the suit for division under Section 176 of U.P. Zamindari Abolition And Land Reforms Act, 1950 (hereinafter referred to as the Act).
3. Surya Vaibhav Developers Private Ltd. (respondent-4) filed a suit (registered as Suit No. T 2014112809) under Section 176 of the Act, for division of its share in plot 1536 (area 0.5440 hectare) of village Shahpur Bamhauta, pargana Dasna, district Ghaziabad. It has been stated in the plaint that the plaintiff has purchased an area of 0.4078 hectare of plot 1536, from other co-sharers of the petitioners and its name was mutated in the revenue records. The remaining area of this plot belongs to the petitioners. The plaintiff requested the petitioners for division of the share of the plaintiff which was not agreed by the petitioners as such the suit was filed.
4. The petitioners contested the suit and filed their joint written statement. It has been stated by the petitioners that they had 1/4 share in the land in dispute. There had been private partition between the co-sharers forty years ago, from the time of their ancestors, since then all the co-sharers are in their separate possession. The plaintiff obtained sale deed from M.G.K. Estate (P) Ltd. who purchased it from different co-sharers, who were in separate possession of different portion of the land in dispute. Although share of different co-sharers were separate but the suit has been malafide filed to take possession over the land of the share of the petitioners .
5. The suit was tried by Assistant Collector, who by order dated 16.09.2014 passed the preliminary decree and there is no dispute relating to the share of the parties. Assistant Collector directed the Lekhpal to prepare kurra. Lekhpal prepared kurra and submitted it in the Court on 24.09.2014. Respondent-4 filed an objection to the kurra and stated that kurra has been prepared in collusion with the petitioners. Respondents was owner of plots 731, 1522, 1529, 1530, 1534, 1537 and 1538 which situate in east, west and south of plot 1536. Lekhpal has proposed kurra to the petitioners in southern side and respondent-4 in northern side. Kurra of respondent-4 was not contiguous to its other plots although it had 3/4 share in the land in dispute. The petitioners wants their kurra in middle of the land of respondent-4, in order to black mail him. As such the kurra prepared by Lekhpal on 24.09.2014 be set aside and the Lekhpal be asked to prepare kurra allotting the share of respondent-4 in the southern side. The petitioners filed counter objection and stated that in private partition, they were given share in southern side of plot 1536 and were in possession of it on the spot. Lekpal after spot inspection prepared the kurra according to the previous possession of the parties. Respondent-4 wanted to purchase the share of the petitioners which was not agreed by them as such he wanted to grab the land of their share. In southern side of plot 1536, government nali was existing. The petitioners used to take water from this nali for irrigation of their crops. In case they will be allotted their share in northern side then they will not be able to use the nali and their land will become un-irrigated and un-accessable.
6. As their was serious dispute relating to previous possession of the petitioners in southern side, Assistant Collector made spot inspection and also get photography of the spot. Assistant Collector after hearing the parties by order dated 13.10.2014 found that while submitting kurra, the Lekhpal did not turn up for recording his statement. In spot inspection, it was found that no agriculture was going on over the land in dispute as such the case of the petitioners that they were in separate possession of their 1/4 share in southern side was not proved. Respondent-4 was having his other plots in east, west and south of plot 1536 which were contiguous to it. Thus it would be more appropriate to allot the share of respondent-4 in southern side. On these findings, he set aside the kurra submitted by Lekhpal dated 08.09.2014 and directed the Lekhpal to prepare fresh kurra allotting 3/4 share of respondent-4 in southern side of plot 1536. In pursuance of order dated 13.10.2014, Lekhpal prepared fresh kurra on 17.10.2014, in which the petitioners were allotted their kurra in northern side and respondent-4 was allotted kurra in southern side, which was approved by Assistant Collector by order dated 18.10.2014, who directed for preparation of final decree according to it.
7. The petitioners filed an appeal (registered as Appeal No. 3/20 of 2013-14) from the aforesaid order. Additional Commissioner, after hearing the parties, by order dated 24.03.2015 held that Assistant Collector after spot inspection and photography of the spot found that no agriculture was going on over the land in dispute. Rule 131 (1) (b) of U.P. Zamindari Abolition And Land Reforms Rules, 1952 (hereinafter referred to as the Rules) requires to allot as far as possible a compact area to the parties. As respondent-4 was having his other plots in east west and south of plot 1536 as such allotment of kurra in southern side to respondent-4 will make compact area to him. Assistant Collector has not committed any illegality. On these findings, the appeal was dismissed. The petitioners filed a second appeal (registered as Revision No. 17 of 2015) from the aforesaid order. Board of Revenue, U.P. by order dated 23.07.2015, affirmed the findings of Courts below and dismissed the second appeal. Hence this writ petition has been filed.
8. The counsel for the petitioners submitted that Board of Revenue, U.P. decided the second appeal without framing substantial question of law. Private partition between the co-sharers took place more than 60 years ago, in which the petitioners were given their share in southern side. They were in continuous possession of their 1/4 share in southern side. In south of plot 1536, there is government nali, from which the petitioners used to irrigate their crops. Respondent-4 is transferee from the co-sharers of the petitioners and obtained sale deeds of other than southern portion of the land. Lekhpal after spot inspection found the possession of the petitioners in southern side and accordingly he prepared kurra of the parties on 08.09.2014 allotting the share of the petitioners in southern side. The petitioners are small agriculturist. In case they are allotted share in northern side they will be deprived from irrigation facility and will suffer grave and irreparable loss. Assistant Collector illegally directed Lekhpal to prepare kurra, giving share of the petitioners in northern side and thus he had usurped the jurisdiction of Lekhpal for preparation of kurra. Principles for division of joint holdings have been provided under Rule 131 of the Rules. Rule 131(1) (e) of the Rules provides that 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 their share. Provisions of Rule-131 are mandatory. Division Bench of this Court in Special Appeal No. 910 of 1963 Kehar Singh Vs. The Joint Director of Consolidation (decided on 01.10.1963), while interpreting similar provisions, held that phrase "as far as possible" does not give any discretion to the Court and the provisions have to be followed unless it is impossible. Use of phrase "as far as possible" in Rule 131 (1) e) of the Rules means unless it is impossible it is always possible. The Courts below have not recorded any finding that allotment of kurra to the petitioners in southern side, where they had possession from the time of their ancestors, was impossible. Impugned orders are illegal and have been passed in utter disregard of Rule 131 (1) (e) and liable to be set aside.
9. I have considered the arguments of the counsels for the parties and examined the record. So far as the arguments that Board of Revenue, U.P. has decided the second appeal without framing substantial questions of law, is concerned, Section 331 (4) of the Act, provides that a second appeal shall lie on any of the grounds specified under Section 100 Code of Civil Procedure, 1908. Section 100 C.P.C. provides that an appeal shall lie in the High Court from every decree passed in appeal from the Court subordinate to High Court, if the High Court is satisfied that the case involves a substantial question of law. Thus an appeal under Section 331 (4) lies when the case involves a substantial question of law. By Act No. 104 of 1976, Section 100 C.P.C. was amended. Section 100 (3) requires for framing substantial question of law, in the memorandum of second appeal. Section 100 (4) requires High Court to formulate substantial question of law and Section 100 (5) requires for hearing of the appeal on substantial question of law, so formulated. Supreme Court in State of Uttarakhand Vs. Mohan Singh, AIR 2013 SC 38 held that amended provisions of Section 100 C.P.C. have no application under Section 331 (4) of the Act as such order of Board of Revenue, U.P. cannot be set aside on this ground.
10. 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 applied mutatis mutandis for division of the holdings. The argument that Assistant Collector illegally directed Lekhpal to prepare kurra, giving share of the petitioners in northern side and thus he had usurped the jurisdiction of Lekhpal for preparation of kurra, are not liable to be accepted as under Section 176 read with section 182-B Assistant Collector is the statutory authority for division of the holdings. Lekhpal is an authority subordinate to him who assists him in discharge of his statutory duty. The counsel for the petitioners submitted that impugned orders have been passed in utter disregard of Rule 131 (1) (e) of the Rules. 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.
11. The word "holding" has been defined under Section 3 (7) of U.P. Tenancy Act, 1939 as follows:-
"holding", means parcel or parcels of land held under one lease, engagement or grant or in the absence of such lease, engagement or grant under one tenure and in the case of a thekedar includes the theka area;"
12. Thus word "holding" used in Rule 131 means the total land held by tenure holders. Rule 131 contemplate principles of division of holding. Under Rule 131 (1) (d) effort should be made to avoid to split the existing filed. In order to assure to follow the principles of Rule 131 (1) (d), it has been further provided under Rule 131 (1) (e) that 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 to his share. Thus principles of Rule 131 (1) (e) serves the object of Rule 131 (1) (d). If there are several plots for division between co-sharers, then in order to avoid split of the plots, the plot in separate possession of a tenure holders be allotted in their kurra. Suppose if a plot situated on a High Way, having commercial value, has to divided between co-sharers and one of the co-sharer was having his share covering whole frontage on roadside land in private separation and other co-sharers were on backside. Then according to the principles under Rule 131 (1) (a) that valuation of the portion allotted to each party shall be proportionate to his share in the holding, Assistant Collector would be justified in allotting share to all the co-sharers giving frontage on roadside and previous possession in such a situation has to be disregarded. In the present case as there is only one plot for division of the share of the parties as such provisions of Rule 131 (1) (e) will have no application. The principles as provided under Rule 131 (1) (a) (b) and (c) have to be followed. There is no allegation that the principles contained under Rule 131 (1) (a) (b) and (c) have been violated.
13. In partition suit in M.L. Subbaraya Setty v. M.L. Nagappa Setty, (2002) 4 SCC 743, Supreme Court 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. The character of any joint family property does not change with the severance of status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. 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. When the court directs that the present possession of the parties shall be respected, it means that if partition of the property is to be effected, then as far as possible the person in possession of a property should be allowed to retain it by equalization of share but it does not mean that a person out of possession of all immovable properties should not be allotted any part of the immovable property whatsoever.
14. The phrase "as far as possible" used under Section 12-A of U.P. Imposition of Ceiling on Land Holdings Act, 1960, came up for consideration before Supreme Court in Rajendra Singh v. State of U.P., (1998) 7 SCC 654. Supreme Court held that the words "as far as possible" have been used in the main section as also in clause (d) of the proviso. These words are not prohibitory in nature. They rather connote a discretion vested in the prescribed authority which can exercise that discretion at the time of carving the surplus area from out of the total holding of a person. Section 9 provides that the prescribed authority shall by a general notice published in the Official Gazette, call upon every tenure-holder holding land in excess of the ceiling area applicable to him, to submit a statement in respect of all his holdings wherein he shall also indicate the plots which he would like to retain as part of his ceiling area. It is this choice which is referred to in Section 12-A and it is provided that the prescribed authority shall, as far as possible, accept the choice indicated by the tenure-holder as to the plots which he would like to retain as part of his ceiling area. It is at this stage that the discretion can be exercised by the prescribed authority and he may not take over those plots as part of the surplus area. It is thus "discretion" and not "compulsion" which constitutes the core of this statutory provision. It is obvious that before taking over any area as surplus area or leaving any area as ceiling area of the tenure-holder, the prescribed authority shall first take into consideration the choice indicated by the tenure-holder and if it is not possible to act wholly upon the choice, for which there may be a variety of reasons, the prescribed authority will proceed in his own way to leave the area determined by him as the ceiling area with the tenure-holder and take over the other area as surplus area. Again in State of M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639, it has been held that the phrase "as far as possible" provides for flexibility, clothing the authority concerned with powers to meet special situations where the normal process of resolution cannot flow smoothly. The aforesaid phrase can be interpreted as not being prohibitory in nature. The said words rather connote a discretion vested in the prescribed authority. It is thus discretion and not compulsion. There is no hard-and-fast rule in this regard as these words give a discretion to the authority concerned. Once the authority exercises its discretion, the court should not interfere with the said discretion/decision unless it is found to be palpably arbitrary. Thus, it is evident that this phrase simply means that the principles are to be observed unless it is not possible to follow the same in the particular circumstances of a case.
15. In this case, the petitioners in their written statement alleged that partition of the land in dispute between the co-sharers had taken place 40 years ago. But no evidence relating to previous partition could be adduced by the petitioners. In the written statement, they did not specify that their share was in southern side. If their had been partition of the disputed plot, 40 years back, then Lekhpal at the time of partal in crop season must have allotted sub-division number of the plots according to the provisions of Paragraph-A-57 of U.P. Land Records Manual. But no sub-division numbers are found either in map or in khasra. For the first time in their objection against the kurra, they have alleged that their possession in private partition was in southern side. In view of controversy raised by the petitioners, Assistant Collector made spot inspection in presence of the parties of which photography was also done. Assistant Collector on the basis of spot inspection recorded findings that there was no agricultural activities in the land in dispute which was lying uncultivated (parati) on the spot. So far as allegation that there was government water channel in south of the land in dispute, it has been informed that total area of the land of the share of the petitioners 1360 squire meter and their kurra is 21 meter x 61 meter. Respondent-4 has purchased plots 731, 1522, 1529, 1530, 1534, 1537 and 1538 which situate in east, west and south of plot 1536. In view of the findings of the Courts below that there is no agricultural activity on the land in dispute, nali in southern side has no importance.
16. Before arguments in the writ petition, this Court by order dated 11.09.2015 adjourned the hearing and asked the counsel for respondent-4 to take instruction as to whether there is any chance of compromise. On the basis of instructions, the counsel for respondent-4 informed that respondent-4 had purchased plots in east, south and west of plot 1536 in compact area for developing the residential plots. In case, the petitioners is allotted southern portion, then there will be split of compact area of respondent-4. If kurra of the petitioners is allotted in north south then width of their kurra will be 16 meter only and if further partition amongst the petitioners takes place then it would be 4 meter only. In such situations, respondent-4 has provided a 9 meter wide access road to the petitioners from northern side up to road. As the access road has already been provided to the petitioners as such the petitioners will not suffer any loss in allotment of northern portion in their kurra.
17. In view of the aforesaid discussion, there is no illegality in orders of Courts below. The writ petition has no merit, it is dismissed.
Order Date :- 22.9.2015 Rahul/-