Exclusive possession does not automatically confer the right to have a plot in one's share, and market value should be considered in the partition of agricultural land.

( 1 ) THIS is a review petition filed by the petitioner seeking review of my judgment and order dated 24. 3. 05 as modified on 24. 5. 05 on the application of Rajaram respondent No. 6 in the writ petition.

( 2 ) MATTER relates to preparation of final decree in respect of agricultural land jointly held by the petitioner and private respondents in the writ petition. The order of the Board of Revenue dated 28. 2. 05 challenged in the writ petition has the effect of directing the trial court to prepare fresh kuras (lots ). Initially the trial court had refused to accept the Kuras submitted by the Lekhpal. The said order was set aside in the revision by the Additional Commissioner, However, the order of Additional Commissioner was set aside by the Board of Revenue in revision. The effect of order of Board of Revenue is that trial court / S. D. O. is to re-determine Kuras.

( 3 ) THERE is absolutely no dispute regarding the shares, which have already been declared through preliminary decree.

( 4 ) IT appears that a particular plot of land is adjacent to road (National High Way) hence each party is very much keen to have that plot in his Kura (lot ). The contention of learned counsel for the petitioner/applicant in the review petition is that the said plot is in exclusive possession of the petitioner for about 40 years hence under Rule 131 (1) ( e )of U. P. Z. A. L. R. Act it shall be allotted to the petitioner. Rule 131 (1) of U. P. Z. A. L. R. Act, is being quoted below:

"131. (1) In making partition of a 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 shares 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 excess of his share. "

( 5 ) UNDER Clause (e) of the aforesaid Rule separate possession of plot is relevant only as far as possible. It is not conclusive. Portion of agricultural plot adjacent to a road, commercial building or. abadi has got potential market value which is several time more than the market value of agricultural land or partition thereof not having such advantage of vicinity. Such agriculture land or its portion is valued under Stamps Act and the Rules for the purpose of payment of stamp duty as commercial or abadi land. Similarly in case where such agriculture land is acquired under land Acquisition Act higher compensation is payable for that portion of the acquired land which has got any of the above advantages. In view of this there is absolutely no reason as to why this factor of market value shall not be taken into consideration while actually partitioning the agriculture land amongst joint owners. There is nothing under Rule 131, which prohibits such course. The only restriction is that factors provided under the said rule should be taken consideration. It is, therefore, clear that within the frame work of Rule 131 market value shall also be taken into consideration while preparing Kuras/lots at the stage of final decree of partition. This view instead of being against Rule 131 finds support from Rule 131 (1) (c ). However, I hasten to add that market value at the time of preparation of final decree is to be taken into consideration independently of Rule 131 (1) ( c ).

( 6 ) THE position may be clarified from X illustration. Suppose a plot of half hectare is jointly held by the two persons. The plot is adjacent to a road. The length of the plot along side the road is 100 meter and its depth 50 meters. In preliminary decree both the joint: holders are declared to be entitled to equal share. At the stage of preparation of final decree two sets