Court No. - 52

Case :- WRIT - B No. - 2910 of 2022

Petitioner :- Dinesh Rai

Respondent :- State Of U.P. And 5 Others

Counsel for Petitioner :- Rajiv Shukla

Counsel for Respondent :- C.S.C.

Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Rajiv Shukla, learned counsel for the

petitioner.

2. Brief facts of the case are that respondent nos. 4 &5

have filed a Suit No.57 of 2012-13 (Computerized Case

No.T201314290200004) under Section 176 of the U.P.

Z.A. & L.R. Act on 23.7.2013 in respect to plots in dispute,

the trial court vide judgment / order dated 3.12.2021

dismissed the partition suit as not maintainable. Petitioner

challenged the judgment / order of trial court in Revision

before the Board of Revenue under Section 333 of the

U.P. Z.A. & L.R. Act which was registered as Revision

No.2960

of

2021

(Computerized

Case

No.AL20211429002960), the Board of Revenue vide his

order dated 17.8.2022 allowed the revision in part, set

aside the judgment / order of trial court dated 3.12.2021

and directed the trial court to decide the petitioner's suit

afresh on merit, hence this writ petition on behalf of

petitioner/defendant.

3. Counsel for the petitioner submitted that a suit for

partition under Section 176 of the U.P. Z.A. & L.R. Act,

filed at the instance of the contesting respondent nos. 5 &

6, was dismissed by the trial court, considering the report

of the Lekhpal and other evidence on record. He further

submitted that the Board of Revenue has illegally

interfered with the order passed by the trial court. He next

submitted that since the construction and the abadi are

being developed at the plot in dispute, as such, the trial

court has rightly dismissed the suit for partition.

4. I have considered the arguments advanced by learned

counsel for the petitioner and perused the records.

5. There is no dispute about the fact that both the parties

are co-sharers of the plot in dispute and a suit for partition

was filed which was dismissed by the trial court on the

ground that certain portion of the plot is being used as

abadi and the construction is lying in the portion of the

plot in dispute. The Board of Revenue has allowed the

revision filed by the contesting respondent and remanded

the matter back to the trial court to decide the suit for

partition on merit.

6. Since the Board of Revenue has recorded a finding to

the fact that the portion in which abadi has been

developed, will be considered by trial court while

preparing the kurra. Both parties are recorded as co-

sharer in the revenue records, as such, suit for partition

should be decided on merit. All the facts and

circumstances will be considered by the trial court while

passing the preliminary decree and final decree in the

case. The fact of construction / abadi will also be taken

into consideration by the trial court.

7. No other points has been raised by counsel for the

petitioner.

8. No interference is required against the impugned order.

9. The writ petition is dismissed. The trial court is directed

to decide the suit on merit, expeditiously, preferably within

a period of six months from the date of production of the

certified copy of the order.

Order Date :- 15.11.2022

C.Prakash

Digitally signed by CHANDRA

PRAKASH

Date: 2022.11.18 18:06:13 IST

Reason:

Location: High Court of Judicature at

Allahabad