Bakhatawar Khan vs Addl. Commissioner ...
2019 Latest Caselaw 1236 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 7
 

 
Case :- MISC. SINGLE No. - 23580 of 2016
 

 
Petitioner :- Bakhatawar Khan
 
Respondent :- Addl. Commissioner (Administration) Lko. Division & Ors.
 
Counsel for Petitioner :- Mohammad Aslam Khan
 
Counsel for Respondent :- C.S.C,Apoorva Tewari,Nishant Shukla, Parul Bajpai,Rakesh Kumar Chaudhary,Uttam Kumar Srivastava
 

 
Hon'ble Rajan Roy,J.

Heard Shri M.A. Khan, learned counsel for the petitioner, Shri Jagdish Parasad Maurya, learned Additional Chief Standing Counsel and Shri Dileep Pandey, learned Standing Counsel for the State and Shri Anil Tiwari, learned Senior Counsel appearing for the opposite parties no. 3 and 4.

This is a writ petition challenging the orders dated 25.08.2010 passed by the S.D.M., Malihabad, District Lucknow under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as ''the Act, 1950), an order dated 11.03.2016 rejecting the petitioner's application under Order 9 Rule 13 C.P.C. for recall of the judgment dated 25.08.2010. Another order dated 14.06.2016 by which the Appeal of the petitioner has been dismissed, has also been challenged.

The facts of the case in brief are that there is a minzumla Gata bearing No. 310. It is not in dispute between the parties that at some stage considering the fact that there were three category of co-sharers in respect of the Gata, an entry in the revenue records was made to the effect 310/1, 310/2 and 310/3 without any such demarcation on the spot or in the Map, as, no partition had taken place by then. It is also not in dispute that a portion of Gata No. 310M was acquired for construction of Hardoi- Lucknow Road. According to the petitioner this was the land which was entered in the records as Gata No. 310/1, a fact which is not being denied by Shri Anil Tiwari, learned Senior Counsel appearing for the opposite parties no. 3 and 4. The opposite party no. 5-Waqf, Alal Aulad initiated proceedings for partition as it allegedly had 2 anna share in Gata No. 310/3, wherein, the petitioner was not arrayed as a defendant but the opposite parties no. 3 and 4 were so arrayed. The contention of Shri Khan is that the Suit was collusive. The Suit was decreed. Six years after the Decree, the petitioner, on coming to know that in fact while preparing the Kurra the land which was Gata No. 310/2 had been treated as Gata No. 310/3 and accordingly the land was partitioned by metes and bounds between the opposite parties no. 3, 4 and 5, filed an application under Order 9 Rule 13 C.P.C. for recall of the said judgment, which was rejected, whereupon, he filed an appeal which was also rejected. Thereafter, the petitioner filed a Suit for partition of Gata No. 310/2. In the said Suit an application for amendment was filed under Order 6 Rule 17, which, as informed by Shri Tiwari, was rejected on 21.01.2019 and a copy of the said order has also been placed before the Court. At this stage, Shri M.A. Khan, learned Senior Counsel for the petitioner states that the manner in which the S.D.M. has passed the order should be seen by the Court as, while deciding the amendment application he has dismissed the Suit also that too on the ground that after coming into force of the U.P. Revenue Code, 2006 the Suit for partition would lie under the Code of 2006 and not under Section 176 of Act, 1950, whereas, admittedly the Suit was filed in the year 2015 and the Code, 2006 came into force in February, 2016. As the Appeal against the said order is pending before the Additional Commissioner, Lucknow, therefore, this Court would not like to say anything on this aspect of the matter at this stage except that by the order dated 21.01.2019 passed by the S.D.M. in the Suit filed by the petitioner under Section 176 of the Act, 1950 bearing No. 1006 of 2015 not only the application for amendment has been rejected but the suit itself has also been rejected.

Now, the contention of Shri M.A. Khan, learned Senior Counsel for the petitioner is that the grievance of the petitioner is that while deciding the suit proceedings under Section 176 of the Act, 1950 pertaining to Gata No. 310/3 at the behest of the opposite party no. 5 while preparing the Kurra and the Map for partition, the error which was committed was that on the spot after Gata No. 310/1 as per Rule 61 of the Rules made under the U.P. Land Revenue Act, 1901 Gata No. 310/2 should have be demarcated instead Gata No. 310/3 has been placed there. Consequently, the petitioner's share in Gata No. 310/2 has been prejudiced and his Suit was also prejudiced which has subsequently been illegally dismissed by the S.D.M. against which the Appeal is pending.

On being confronted Shri Anil Tiwari, learned Senior Counsel for the opposite parties no. 3 and 4 submitted that as would be evident from the Map at Page 33 the land adjacent to Gata No. 310/3 on the left and right side as per the Kurra prepared by the Lekhpal would fall in Gata No. 310/2, however, on being asked, was it possible that part of the land would fall on the left side of Gata No. 310/3 and part of Gata No. 310/3 would fall on the right side, he could not give any satisfactory reply in this regard.

Considering the facts and circumstances of the case, this Court is of the view that as Gata No. 310 is minzumla, part of which had been acquired for construction of Hardoi- Lucknow Road, even if, the opposite parties no. 3 and 4 had purchased certain portions of it from one of the co-sharers, unless there was partition between co-sharers prior to the purchase of the said land all that can be said to have been purchased was a share in the Gata and not any specific portion of it. The S.D.M.'s Court while proceeding under Section 176 of the Act, 1950 with respect to Gata No. 310/3 should have considered this aspect of the matter that Gata No. 310M had not been physically partitioned nor was there any demarcation either in the Map or on the spot as to the location of Gata No. 310/1, 310/2 and 310/3. In this view of the matter, this Court is of the view that the Courts below erred in proceeding to decide the matter in the manner in which they have done. The Courts have also erred in rejecting the application of the petitioner under Order 9 Rule 13 and the Appeal, as, the petitioner did have a cause of action and was aggrieved by the manner in which Kurra had been prepared and the final decree had been passed.

Minjumla Gata is an unpartitioned plot of land where several tenants have right and interest. Reference may be made in this regard to Para A-64, Para 132 and Para A-132 of the Land Record Manual. The ''bata' entry such as 1/1, 1/2 and 1/3 are only indicative of sub-divisions of the plot corresponding to the number of co-sharers or groups of co-sharers. Accordingly, the entry of 310/1, 310/2 and 310/3 in respect of Minjumla Gata No. 310 in the revenue records by the Lekhpal or Revenue Inspector, assuming he could have made them by himself though it is highly doubtful, are only indicative of the sub-divisions between co-sharers i.e. they are indicative of three co-sharers or three categories of co-sharers in the Minjumla Gata and such ''bata' entries are not indicative of any actual partition by metes and bounds. They are indicative of component part of a plot partitioned theoretically but not physically. In the absence of any partition by metes and bounds the part of land being referred as 310/3 purchased by the opposite parties no. 3 and 4 from the recorded tenure holder is at best purchase of his share or part of it but not any specific portion of the land unless he had rights in respect of a defined Land. In a suit for partition filed by the opposite party no. 5 in respect of alleged Gata no. 310/3 the S.D.M. should have first seen as to whether there was any partition of Minjumla Gata no. 310 as per law by metes and bounds as, only then Suit could proceed on such premise amongst those claiming in Gata no. 310/3, otherwise, a partition of entire Gata No. 310 Minjumla (excluding the portion acquired by the State) was required to take place after hearing all the khatedars/ co-sharers as their interest would be affected, as the location of Gata No.310/1, 310/2 and 310/3 within the boundaries of Minjumla Gata No. 310 would have to be determined first and to this extent, even if, the Khatedars of Gata No. 310/2 including the petitioner did not claim any rights and share in alleged Gata No.310/3 they were required to be heard. This aspect of the matter has been lost sight of by all the Courts below. The fact that petitioner had also subsequently filed a Suit for partition in respect of Gata No. 310/2 makes no difference in view of what has been stated hereinabove as the legal mandate does not change on account of it and it applies in petitioner's Suit also.

The subsequent declaration of part of Gata No. 319M allegedly 310/3 as non agricultural under Section 143 of the Act, 1950 consequent to its purchase by opposite parties no. 3 and 4 and a Petrol Pump being operated thereon does not have any adverse bearing on the matter, as, it is an act subsequent to the judgment dated 25.08.2010 of the S.D.M. in the partition Suit under Section 176 of the Act, 1950 and also as the rights and shares of the parties in Gata No. 310 as existing prior to such declaration are necessarily required to be adjudicated, as only on such exercise rights can be claimed by them in respect of specified land.

The ends of justice required that the partition of Gata No. 310/1, 310/2 and 310/3 should have been undertaken together or so to say that of entire Gata No. 310M (excluding the acquired portion) then this dispute would not have arisen.

As regards the petitioner's suit under Section 176 of the Act, 1950 although it has been dismissed on 21.01.2019 and as the Appeal is pending, the Appellate Court is directed to dispose of the Appeal, say, within a period of six months from the date a certified copy of this order is submitted, if there is no other legal impediment in this regard.

Coming back to the controversy at hand, for the reasons aforesaid, the impugned orders are quashed. The suit proceedings under Section 176 of the Act, 1950 shall stand restored before the S.D.M. concerned who shall proceed with the Suit keeping in mind the observations made hereinabove and the relevant Rules on the subject. The petitioner shall be impleaded in the proceedings only to ensure that his rights in Gata NO. 310/2 which is part of unpartitioned Gata No. 310 Minjumla are not jeopardised.

However, as it is the admitted position of the petitioner also that a Petrol Pump is being run on the land in dispute, therefore, it is provided that the opposite parties no. 3 and 4, who are running the Petrol Pump, shall continue to utilize the land in their possession but without prejudice to the rights of the petitioner and subject to the result of the suit proceedings under Section 176 of the Act, 1950, but at their own risk.

It is made clear that this Court has not adjudicated rights and shares of Khatedars of Gata No. 310M.

The writ petition stands allowed in the aforesaid terms.

 
Order Date :- 14.3.2019
 
R.K.P.					    (Rajan Roy,J.)