Transfer of a share in land is distinct from fragmentation; statutory clarifications in the U.P Zamindari Abolition and Land Reforms Act establish this legal distinction.

JUDGMENT

Shree Prakash Singh, J.

Heard Sri Manendra Nath Rai, learned counsel for the petitioners, Sri Hemant Pandey, learned Standing Counsel for the State and perused the material placed on record.

2. By means of the instant petition, the petitioner has assailed the order dated 27.01.2006 passed by the respondent no. 2 and the order dated 30.11.2007 passed by the respondent no. 4.

3. Contention of the learned counsel for the petitioner is that, initially the petitioner purchased the land in question by way of registered sale-deed, which thereafter was recorded in the name of the petitioner vide order dated 17 January 2001 passed by Tahsildar, Dhorara in Case No. 428 of 2001. He submits that a stranger challenged the aforesaid order dated 17 January 2001 before the Special Divisional Officer by way of instituting an appeal which was decided by the order dated 29 March 2001 and the order passed by the Tahsildar dated 17 January 2001 was set aside and the matter was referred for further proceeding, invoking the powers under Section 167 of the UP Zamindari Abolition and Land Reforms Act, 1950 (hereinafter as 'the Act, 1950'). The petitioner moved a revision bearing No. 1794 of 2001-2002 under Section 219 of the LAND REVENUE ACT , which was dismissed by the Revision Court while upholding the order passed by the Appellate Court and it was again held that the court below will proceed as per the provision of Section 167 of the Act 1950.

4. Contention of the learned counsel for the petitioner is that the Appellate Court could not have entertained the appeal instituted by a stranger as he had no interest as per the law in the land in question. He also submits that during the pendency of the Revision before the Revisional Court, the UP Zamindari Abolition and Land Reforms (Amendment) Act, 2004 was promulgated and by virtue of the same, the provision prescribed under Section 168A of the Act, 1950 was omitted, which became effective from 23 August 2004. He added that in fact the aforesaid plea was taken before the Revisional Court but the same was ignored and the order was passed. He also submitted that the petitioner could not avail the exemption as per the special provision inserted time to time i.e., in the year 2005, 2010 and 2014. Since in the year 2008, the State Government made an entry in the Revenue Record regarding the land in question and therefore the petitioner could not avail the benefit of the special provisions. He next added that the Revisional Court without considering the thin difference that the transfer of a share is distinguishable from transfer of the portion of a plot, amounting to fragmentation. In support of his contention, he has placed reliance on a judgement reported in (1992) RD 186; Goverdhan Singh and other v. Board of Revenue and others and has referred the following paragraph which is quoted hereinunder:-

"Section 178 read with related rules contained in rules 159 to 164 of U.P.Z.A. and L.R. Rules 1952, makes it clear that two or more persons can co-share in a holding which itself is a fragment' or whose share if converted in terms of area becomes a fragment subject to the provisions of Section 178 of the Act. Therefore transfer of a share is distinguishable from a transfer of a portion of the plot in terms of area amounting to 'fragment' within the meaning of Section 168A of the Act. The transferees of a defined share are however, entitled to co-