A preliminary decree determining shares in a partition suit is binding on parties and cannot be reopened in subsequent proceedings without statutory challenge; consent decrees operate as contracts, limiting collateral disputes.

JUDGMENT :

YOGENDRA KUMAR SRIVASTAVA, J.

1. Heard Sri Punya Sheel Pandey, learned counsel for the petitioner, Sri Anand Bhaskar Srivastava, learned Standing Counsel for the State- respondents and Sri Avinash Chandra Srivastava, learned counsel for the respondent-Gram Sabha.

2. The present writ petition under Article 226 of the Constitution of India has been filed assailing the order dated 12.12.2002 passed by the respondent no.3–Sub Divisional Magistrate, Etmadpur, District Agra in Case No. 20 of 1995-96 ( Munshi Lal vs. Bhagwan Singh and others ), a suit for division of holding under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "the Act, 1950"), and the subsequent revisional order dated 28.04.2005 passed by the respondent no.2–Additional Commissioner (Judicial), Agra in Revision No. RST/34/2001-2002 ( Mahaveer Singh vs. Rampal Lal and others ).

3. The facts, as borne out from the record, indicate that a suit under Section 176 of the Act, 1950 was instituted, in which the court of the Sub Divisional Magistrate, Etmadpur, passed a preliminary decree determining the shares of the parties by order dated 29.02.1996. The determination of shares at that stage was made with the consent of the parties and the petitioner's consent stood reflected in his written statement and in the order of the court. Pursuant to the preliminary decree, the Lekhpal submitted a kurra report on 28.06.1996 in furtherance of the process of partition by metes and bounds.

4. Thereafter, the petitioner moved an application on 07.12.2002 before the trial court raising objection to the determination of his share and seeking to reopen the issue of shares already settled at the stage of the preliminary decree. The trial court noted that the preliminary determination of shares had been made on the basis of consent and that no statutory challenge had been raised to the preliminary decree in appeal or revision. Holding that the objection seeking re-determination of shares was not maintainable at that stage, the trial court rejected the application by order dated 12.12.2002.

5. In the meantime, the proceedings for preparation of the final decree continued. A modified kurra report was submitted by the Lekhpal on 27.12.2002. The petitioner filed objections to the modified kurra report on 03.01.2003, which were considered by the trial court in the course of final decree proceedings. Upon consideration of the material on record, the trial court accepted the modified kurra report by order dated 07.01.2003 and, thereafter, passed the final decree on 15.01.2003. The final decree was duly implemented, and necessary amaldaramad was carried out in the revenue records, as is evident from the report dated18.01.2003 of the Registrar Kanungo on the parwana amaldaramad.

6. The petitioner carried the order dated 12.12.2002 in revision before the Additional Commissioner (Judicial). The revisional court took note of the above subsequent developments, namely: submission of the modified kurra report on 27.12.2002; filing of objections by the petitioner on 03.01.2003; acceptance of the modified kurra report by the trial court on 07.01.2003; passing of the final decree on 15.01.2003; and the consequential amaldaramad in the revenue records on 18.01.2003. It further recorded that the petitioner–revisionist could not produce any material to establish any irregularity or illegality in the order dated 12.12.2002 rejecting his b