HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.836 (M/S) of 2023 Smt. Shabana ………Petitioner Versus Mehboob Hasan and others ………Respondents Mr. Siddhartha Singh with Mr. D.S. Negi, Advocates for the petitioner.

Mr. Shubhang Dobhal, Advocate for respondent no.3 Mr. M.S. Tyagi, Sr. Advocate assisted by Mr. Sunil Chandra, Advocate for respondent no.4/2-Naseem.

Mr. Vijay Bhatt, Advocate for respondent nos.4 to 20.

Mr. Sagar Kothari, Advocate for respondent nos.40 and 41.

None for rest of the respondents.

Hon'ble Pankaj Purohit, J. (Oral)

By means of present writ petition, the petitioner/plaintiff has put to challenge the order dated st

16.08.2021 passed by the Assistant Collector, 1 Class/S.D.O., Sadar, Dehradun in Original Suit No.42 of 2017-18, Meharban Ali and others vs. Alauddin and others, whereby the Amendment Application moved by the petitioner/plaintiff was rejected and at the same time, the suit was also dismissed. Petitioner has also challenged the subsequent orders passed by the First and Second Appellate Authorities dated 12.10.2022 and 13.01.2023.

2. The facts of the case are that the petitioner along with respondents Nos. 24 and 25 instituted Partition Case No. 42 of 2017–2018, Meharban Ali and others vs. Allauddin and others, before the Assistant Collector, First Class, Sadar, Dehradun under Section 176 of the U.P.Z.A. & L.R. Act seeking partition of joint agricultural holdings. The case of the petitioners was that they collectively possessed a one-

fourth undivided share in the joint khatas, and that the defendant co-sharers had begun transferring portions of the joint land without effecting formal partition, thereby infringing their lawful rights. By order dated 21.03.2018, the Trial Court granted an ex parte temporary injunction in favour of the petitioners. Subsequently, however, on 09.02.2021, the Assistant Collector rejected the injunction application. A revision filed as Revision No. 146 of 2021 was dismissed on 08.03.2021 by the Board of Revenue. In the meantime, the defendants asserted that the petitioners had already sold their share of land. Acting on this objection, and relying upon prima facie observations recorded earlier in the temporary injunction proceedings, the Trial Court passed the impugned order dated 25.01.2021 dismissing the entire partition suit as infructuous. The Court simultaneously rejected the amendment application filed by the petitioners on the ground that it sought to introduce afterthought facts. The petitioners contend that at the relevant time, Plaintiff Nos. 1 and 2 were in judicial custody in a separate criminal matter from 30.07.2021 to 19.04.2022, and therefore Plaintiff No. 3 (the present petitioner), being the sister-in-law of Plaintiff No. 1, was compelled to file First Appeal No. 59 of 2021–2022. The Additional Commissioner, by judgment dated 12.10.2022, dismissed the appeal. Aggrieved, the petitioner filed Second Appeal No. 33 of 2022–2023. The Board of Revenue vide judgment dated 13.01.2023 dismissed the appeal holding concurrently that the suit was rightly dismissed as infructuous. The petitioner asserts that all three courts have failed to exercise jurisdiction vested in them, misconstrued the scope of amendment, misconceived the effect of temporary injunction findings, and have erroneously presumed sale of entire shares without any evidence.

3. It is contended by the learned counsel for the petitioner/plaintiff that the aforesaid revenue suit was filed for partition. In the said suit, an Amendment Application was moved by the petitioner/plaintiff requiring certain amendments to be carried out in the plaint. The Amendment Application was rejected by the learned trial court on the premise that the petitioner/plaintiff has no share on the land i.e. suit property and therefore, the Amendment Application was rejected. At the same time, the suit has also been dismissed.

4. It is feeling aggrieved by the aforesaid rejection of the Amendment Application and consequent dismissal