Point of Law: An undivided share in a joint family property cannot be sold off by one of the co-sharers without there being any partition by metes and bounds. Even if there is an assertion that an oral partition took place, the value of the property involved in the partition being more than hundred rupees, such oral partition is not permissible. Registration of such partition was also required.

JUDGMENT :

SANGEETA CHANDRA, J.

1. I have heard the learned counsel for the petitioner and Shri Manendra Nath Rai, who appears for the opposite party no. 4 and the learned Standing Counsel Shri Atul Kumar Dubey, who appears for the State respondents.

This writ petition has been filed challenging the order dated 28.01.2015 passed by the Consolidation Officer, on an application under section 9A (2) Of the Consolidation of Holdings Act (herein after referred to as ‘the Act’) and the order dated 12.06.2015 passed by the Settlement Officer Consolidation and also the order dated 11.09.2015 passed in Revision by the Deputy Director Consolidation.

2. In brief, the case set up by the petitioner Rajendra Prasad is that plot nos. 705 and 712 were originally recorded in the name of Shri Lakshmi Narayan son of Chhannu Lal who died during consolidation operations. After the death of original tenure holder the names of his three sons Rajendra Prasad, Vijay Kumar and Sushil Kumar were mutated by the Assistant Consolidation Officer by an order dated 20.10.1996, plot nos. 712 and 705 are adjacent to each other and both were consolidated as Chak No. 493 and recorded jointly in the names of the three brothers without their share being specified or divided.

3. Sushil Kumar sold of 1/3rd of his share of plot no. 705 and 712 through a sale-deed dated 19.12.1996 to Shashikanti Devi, the opposite party no. 4. The name of Shashikanti Devi was mutated by the Assistant Consolidation Officer on 26.12.1997. The petitioner’s other brother Vijai Kumar also sold off 1/3rd of his undivided share to Smt. Shashikanti Devi on 30.07.1998 and her name was recorded on 15.06.1999 in the revenue record. Smt. Shashikanti continued to cultivate the undivided share of these two plots, (numbered as Chak No. 493 in the consolidation operations), for several years and then moved an application in 2013 under Section 9A (2) for partition on the basis of the sale-deeds executed in her favour. The petitioner appeared before the Consolidation Officer and filed an application for spot inspection to be carried out before such partition can be ordered as the boundaries shown in the sale-deeds by his two brothers were incorrect. The Consolidation Officer however did not accede to the request of the petitioner and without a spot inspection directed partition of Chak No. 493 on the basis of boundaries shown in the sale-deeds. It observed that the sale-deeds had been duly proved by the vendor and the Vendee and their witnesses and there was no reason to disbelieve the same. The Consolidation Officer in his order dated 28.01.2015 directed that partition be carried out in such manner that two thirds of south east portion of Chak No. 493 remained with Shashikanti Devi and a small portion on the north east along with the western portion of the land was given to the petitioner. In the process of dividing Chak No. 493 in this manner the drain (Nali) and the Chak Road were also directed to be shifted by the Consolidation Officer.

4. The petitioner being aggrieved approached the Settlement Officer Consolidation in Appeal. Petitioner contended in the Appeal that since long Chak No. 493 was being cultivated by the three brothers on the basis of Family Settlement wherein each of the brothers was given 1/3rd in East - West direction so that each of the brothers had access to the Chak Marg on the East. Rajendra Prasad was given the Northern most 1/3rd strip whereas Vijai Kumar was given Southern most strip, and Sushil Kumar was given the strip in between. On the East the share of the petitioner and his each of his two brothers opened on the Chak marg and on the West towards the grove of Kunj Bihari on plot no. 706. It was submitted by the petitioner that if the boundaries given wrongly in the sale-deeds were to be respected then the petitioner would be deprived of access to the Chak Marg. It was submitted that although an application for spot inspection was given to the Consolidation Officer he believed