The main legal point established in the judgment is the necessity of following the rules for the preparation of the final decree in determining the share of the parties in a partition suit under the U.P.Z.A.&L.R. Act.

SUNITA AGARWAL, J.

1. Heard learned counsel for the petitioner and learned Standing Counsel. Sri Manoj Kumar Yadav, learned counsel on behalf of respondent/Gaon Sabha is present.

2. The order of remittal passed by the Second Appellate Court dated 23.10.2017 in Second Appeal No. 1345 of 2015 (Smt. Vidyawati Devi vs. Manju Devi) under Section 331 of the U.P.Z.A.&L.R. Act is under challenge in the present writ petition on the ground that no substantial question of law has been framed by the Second Appellate Court while allowing the Second appeal.

3. It is contended that the question framed by the Second Appellate Court as indicated in the order impugned is a question which pertains to an error of law in passing the judgment and decree by the First Appellate Court. But it cannot be said to be a substantial question of law inasmuch as the said question did not arise on the dispute raised by the parties at all.

4. Reliance is placed upon the judgment of the Apex Court in Damodar Lal vs. Sohan Devi and others (Civil Appeal No. 231 of 2015) and the judgment of this Court in Ram Saran and others vs. Board of Revenue and others, 2003 3 Laws(All) 103 to substantiate his submission by the learned counsel for the petitioner.

5. Before dealing with the submission of learned counsel for the petitioner, certain facts of the matter are required to be appreciated by the Court.

6. The dispute in the present petition arises out of the suit for partition filed under Section 176 of the U.P.Z.A.&L.R. Act by respondent no. 5 namely Vidyawati Devi. The petitioner and respondent no. 5, both are claiming their rights on the basis of the sale deeds executed by co-sharers of the suit property namely the heirs of Doodhnath and Devnath. As per the pedigree disclosed by the learned counsel for the petitioner during the course of arguments, Doodhnath and Devnath were real brothers. The sale deed in favour of the petitioner was executed in the year 2008 after death of Doodhnath by his two sons whereas the sale deed in favour of respondent no. 5 was executed by Devnath, the other brother in the year 2009.

7. It is further informed by the learned counsel for the petitioner that a suit for cancellation of the sale deed executed in favour of the petitioner was filed by Devnath but it was dismissed for want of prosecution in the year 2014.

8. In a suit for partition namely the Suit no. 86 of 2012? (Smt. Vidyawati Devi vs. Smt. Manju Devi and others) out of which the present writ petition arises, a preliminary decree was passed on 6.1.2014 whereby the shares of the petitioner and that of respondent no. 5 to the extent of half in Gata No. 345 area 0.438 hectares was determined. The said decree has become final between the parties. The final decree was passed on 11.12.2014 after the Kurras prepared by the Lekhpal dated 21.7.2014 was affirmed vide judgment and order dated 28.11.2014. The final decree prepared by the trial court was challenged in First appeal by respondent no. 5 on the ground that the Kurra (identification of share of the parties) was not prepared on the basis of possession of the parties.

9. It was contended therein that the sale deed executed in favour of the petitioner was a forged sale deed. The First appeal was dismissed vide judgment and order dated 7.5.2015.

10. The second appeal was filed by respondent no. 5 on the same ground. The Second Appellate Court has recorded a categorical finding that both the vendors namely predecessor-in-interest of the petitioner and respondent no. 5 had half share in the suit property i.e. plot no. 345 area 0.438 hectares.

11. By means of the sale deed dated 20.2.2008, the petitioner herein namely respondent in second appeal had purchased half share whereas the respondent no. 5 had also purchased half share in the said property vide sale deed dated 14.5.2009. As there was no partition between the co-sharers before execution of the sale deed, both the parties would be deemed to be co-sharers of each and every inch of