Private partition of Bhumidhari land is permissible and does not require court intervention unless objections are raised by the Gaon Sabha or the State of U.P. regarding apportionment of rent.

K. P. Singh, J.

1. THIS writ petition arising out of a suit under section 176 of the UP ZA and LR Act of partition of 1 /3rd share filed by Adya Singh, opposite party no. 4 in the present petition.

2. THE allegations in the plaint are that the disputed plots are joint property and that the plaintiff had l/3rd share therein. In a. partition separate quras were prepared by the defendant Vinayak Singh who got better quality of land in his qura, hence the plaintiff is at a disadvantageous position and claims partition of his share.

The defence in the case on behalf of Binayak Singh petitioner was that the parties were transferee of the disputed area from the original tenure holder and at the time of mutation of their names a private partition took place to which different quras were prepared and the names of the parties were recorded in accordance therewith. Land revenue was also apportioned. In short, the plaintiff's suit for partition was asserted as not maintainable.

3. IT is noteworthy that Sangram Singh, the other defendant, accepted the claim of the plaintiff opposite party.

4. THE trial court through its judgment dated 28-9-72 accepted the claim of the plaintiff and declared his l/3rd share in the disputed property. Against the judgment of the trial court the petitioner went in appeal but remained unsuccessful as is evident from the judgment of the appellate court dated 29-9-73. THEreafter the defendant petitioner preferred a second appeal which has also been dismissed by the second appellate court through its judgment dated 17-12-1973. Aggrieved by the judgment of the revenue courts the defendant petitioner has approached this Court under Article 226 of the Constitution.

The main grievance of the learned counsel for the petitioner before me is that when there was a private partition between the parties, is should have been respected by the revenue courts and the proceedings should have ended in accordance with the private partition. Second contention raised on behalf of the defendant petitioner is that he has made improvements in the plots allotted to him hence with dishonest motives the plaintiff has filed the present suit for partition and wants to take the land in possession of the defendant petitioner. If the impugned judgments are not quashed, the plaintiff opposite party shall succeed in his move in collusion with the other defendant opposite party no. 7 in the present writ petition.

5. IN reply, the learned counsel for the plaintiff opposite party has contended that the revenue courts have taken correct view that the Bhumidhari plots can be divided only through courts. It has also been stressed that court of fact has recorded a finding to the effect that the defendant petitioner has failed to prove private partition alleged by him, hence it is not a fit case for interference in writ jurisdiction.

6. I have considered the contentions raised on behalf of the parties and I have gone through the impugned judgments of the revenue courts. I find that the appellate courts have recorded a finding to the effect that there cannot be a private partition regarding Bhumidhari land. In this connection it is proper to quote the finding recorded by the second appellate court as below :-

"...............The ruling reported in AIR 1946 relates to partition by private arrangement between co sharers of a Patti while in the present case the partition relates to tenancy land which can be done only under Sec. 176 UP ZA and LR Act. If the cotenure holders have by private arrangement divided their land between themselves any one of the co-tenure holders can raise claim for allotment of the particular portion of land in his possession at the time of the preparation of final decree as provided u/R. 131 (e) of ZA and LR Rules."

The first appellate court has also recorded the following finding :-

"Is kanoon ke paripekshya men naniantaran ka adesh yahan takhi manya ho sakta hai ki jo bhukhand jis paksh ke khata me ha us par uska adhipatya r