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2015 Supreme(All) 3470
ALLAHABAD HIGH COURT
Ram Surat Ram (Maurya), J.
Vipin Kumar and 3 Others - Appellant
Versus
Board of Revenue U.P. and 5 Others - Respondent
Writ - B No. - 35442 of 2015
Decided On : 04-08-2015
For the Petitioner:- Jeevan Prakash Sharma
For the Respondent:-C.S.C.,Anuj Kumar, Siya Ram Sahu
Previous possession of the parties must be taken into account while preparing kurra in a partition suit under the U.P. Zamindari Abolition and Land Reforms Act, as per Rule 131 of U.P. Zamindari Abolition and Land Reforms Rules, 1952.
Headnote:
Zamindari Abolition and Land Reforms Act - Partition Suit - Rule 131 of U.P. Zamindari Abolition and Land Reforms Rules, 1952 - Previous possession of the parties to be taken into account while preparing kurra
Fact of the Case:
The writ petition was filed to quash the orders of Assistant Collector, Additional Commissioner, and Board of Revenue, U.P. regarding the partition suit under U.P. Zamindari Abolition and Land Reforms Act, 1950.
Finding of the Court:
The court found that the arguments presented by the petitioners regarding private partition, disproportionate valuation, and incorrect preparation of kurra were not substantiated. The court also verified the preliminary decree and dismissed the writ petition for lack of merit.
Issues: Private partition, incorrect preparation of kurra, disproportionate valuation, and verification of preliminary decree.
Ratio Decidendi: The court's decision was based on the lack of evidence for private partition, incorrectness of kurra preparation, and the absence of grounds to change the shares without the consent of the respondents.
Final Decision: The writ petition was dismissed for lack of merit.
Ram Surat Ram (Maurya),J.
1. Heard Sri Jeevan Prakash Sharma, for the petitioners and Sri Siya Ram Sahu, for respondents-4 and 5. Supplementary Affidavit filed by the petitioners is taken on record.
2. The writ petition has been filed for quashing the orders of Assistant Collector dated 21.12.2010, approving kurra prepared by Lekhpal and passing final decree in the partition suit, Additional Commissioner dated 04.06.2011 and Board of Revenue, U.P. dated 08.05.2015, dismissing the appeal and second appeal of the petitioners, under U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act).
3. Plot 438 (area 3.379 hectare) of village Paharpur, pargana Naraini, district Banda was holdings of two sisters namely Madhuri and Narbadia. Madhuri executed a sale deed dated 01.07.2003 in respect of her 1/2 share in the land in dispute in favour of Smt. Saraswati, grand mother of the petitioners. Subsequently Narbadia executed another sale deed in respect of her 1/2 share in the land in dispute, in favour of Vishnu Prasad and Aman Prasad (respondents-4 and 5). Respondents-4 and 5 filed a suit (registered as Suit No. 5) under Section 176 of the Act, for partition of their 1/2 share in the land in dispute. Preliminary decree in the suit was passed on 30.11.2005, holding 1/2 share of the plaintiffs. Assistant Collector by order dated 30.11.2005 directed Lekhpal to prepare kurra. Thereafter Lekhpal prepared kurra on 25.06.2007 and submitted in the Court.
4. Smt. Saraswati died on 16.10.2007. Initially, the father of the petitioners was substituted as her heir by order dated 02.08.2008 but later on by order dated 04.02.2009, the petitioners were substituted as her heirs. The petitioners filed an objection on 05.03.2010 against kurra, and stated that there had been a private partition between Narbadia and Madhuri, in which share of Narbadia was in northern side of plot 438 and share of Madhuri was in southern side. Smt. Sarswati purchased southern side of plot 438 on 01.07.2003 and from the date of sale deed she was in exclusive possession of southern side. About after one year, Narbadia sold her northern 1/2 share to Vishnu Prasad and Aman Prasad. Lekhpal has not prepared kurra, according to previous possession of the parties, in collusion with the plaintiffs. Kurra has been prepared in the name of dead person, Smt. Saraswati and is liable to be set aside.
5. Assistant Collector, after hearing the parties, by order dated 20.12.2010 held that kurra has been prepared by Lekhpal in accordance with law, in which both the parties were given frontage on roadside and also access of nali. Although kurra was prepared in the name of Smt. Saraswati but no prejudice has been caused to the petitioners. Allegation that Smt. Sarswati purchased the land on roadside does not appears to be correct as had Smt. Sarswati purchased the land on roadside then she should get her portion partitioned at that time itself. Both the parties has to be allotted equal valuation of the land, if one co-sharer is allotted roadside land then high valuation land would go in his share. On these findings, he rejected objection of the petitioners, confirmed the kurra and passed final decree in the suit. The petitioners filed an appeal (registered as Appeal No. 77/116) from the aforesaid order, which was dismissed by Additional Commissioner, by order dated 04.06.2011. The petitioners filed a second appeal (registered as Second Appeal No. 24 of 2010-2011), which was dismissed by Board of Revenue, U.P. By order dated 08.05.2015, at admission stage. Hence this writ petition has been filed.
6. The counsel for the petitioners submitted that there had been a private partition of plot 438 between Narbadia and Madhuri, previous owners of the land in dispute. In which share of Narbadia was in northern side and share of Madhuri was in southern side. Smt. Sarswati purchased southern side of plot 438 on 01.07.2003 from Madhuri. Since then, she was in exclusiv
