The revenue court has jurisdiction to grant interim injunctions in partition suits under the U.P. Revenue Code, and construction on joint land does not change its nature as a holding.

JUDGMENT :

MANISH KUMAR NIGAM, J.

1. Heard learned counsel for the petitioner, learned counsel for the respondent, learned Standing Counsel and perused the record.

2. This petition has been filed for the following relief:

(i) issue a Writ, Order or direction in the nature of Certiorari quashing the impugned ex-parte Order dated 11.12.2023 passed by Respondent no. 2 (Sub Divisional Magistrate/Assistant Collector, Khair, District Aligarh). (Annexure No. 1) to the writ petition.

(ii) issue a Writ, Order or direction in the nature of Certiorari quashing the entire proceeding arises out of the Application dated 07.12.2023 of Respondent no. 3 Under Order 39 Rule 1 Read With Section 151 C.P.C.

3. Brief facts of the case are that the contesting respondent filed a suit under Section 116 of U.P. Revenue Code, 2006 for partition of holdings, details of which are given in the plaint itself. Along with the suit, the plaintiff/respondents has filed an application for interim injunction under Order 39 Rule 1 & 2 read with Section 151 C.P.C. The trial court granted ex-parte injunction restraining the defendants in the suit from changing the nature of property in dispute and also restraining them from alienating the property in dispute vide order dated 11.12.2023. Against this order, this petition has been filed.

4. The first contention of the learned counsel for the petitioner is that the suit itself is not maintainable under Section 116 of U.P. Revenue Code, 2006. Learned counsel for the petitioner invited attention of this Court to the provisions of Section 116 of U.P. Revenue Code, 2006. Section 116 of U.P. Revenue Code, 2006 is quoted herein-below:

S. 116. Suit for division of holding:

(1) A bhumidhar may sue for the division of the holding of which he is a co-sharer.

(2) In every such suit, the Court may also divide the trees, wells and other improvements existing on such holding but where such division is not possible, the trees, wells and other improvements aforesaid and valuation thereof shall be divided and adjusted in the manner prescribed. [Substituted by U.P. Act No. 4 of 2016, S. 91]

(3) One suit may be instituted for the division of more holdings than one where all the parties to the suit other than the [Gram Panchayat] [Substituted by U.P. Act No. 4 of 2016, S. 2] are jointly interested in each of the holdings.

(4) To every suit under this section, the [Gram Panchayat] concerned shall be made a party.

5. Contention of the learned counsel for the petitioner is that the suit is maintainable only for the division of holding and not otherwise. It has also been contended by learned counsel for the petitioner that the petitioner has constructed a house over the property in dispute with mutual consent of the defendant/respondents. This averment made by learned counsel for the petitioner in paragraph no. 7 of the writ petition which is quoted as under:

“7. That in this regard it is necessary to brought in the knowledge of this Hon’ble Court that the contesting Respondent no. 3 had already made certain construction over his mutually agreed portion of the Plot and for the same no Respondents have raised objection in this regard, as all the Respondents have made construction over the portion of the Land which they have got on the basis of mutual settlement and only petitioner was deprived to construct his house over the part of the Land which he had on the basis of mutual settlement.”

6. Learned counsel for the petitioner further submitted that since the petitioner has constructed a house over the part of land, therefore, the land ceased to exists as a holding and the remedy of the petitioner is to file a suit before the civil court for partition of his holdings.

7. Contention of learned counsel for the petitioner is wholly misconceived. Mere making construction over a joint bhumidhari land does not change the nature of the holding unless there is a declaration to the effect under Section 80 of the U.P. Revenue Code, 2006 changing the nature of the prope