GURU DAYAL Vs. BOARD OF REVENUE U P

JUDGEMENT

(1.) HEARD Sri Rajiv Kumar Srivastava, learned counsel for the petitioner, and Sri S.N. Tiwari for Respondent No. 5, who has put in contest as he was the revisionist before the Board of Revenue. In view of the aforesaid position, it is not necessary to issue notice to Respondent Nos. 3 and 4 at this stage. Learned Standing Counsel and the learned counsel for the Gaon Sabha has also been heard and the matter is being disposed of finally in view of the consent of learned counsel for the petitioner and learned counsel for Respondent No. 5.

(2.) THE background in which the present petition has been instituted is that in a Suit for partition between the petitioner and the contesting respondent, a preliminary decree was drawn on 9.11.2009. While drawing the preliminary decree, the trial Court recorded the following finding: <IMG>JUDGEMENT_542_ADJ10_2011Image1.jpg</IMG>

(3.) SRI SRIvastava, learned counsel for the petitioner, submits that the revisional Court could not interfere with the preliminary decree on a miscellaneous modification application inasmuch as the remedy available if any to the respondent No. 5 was, not to file a modification application but to file an appeal, if he was aggrieved by the judgment and decree of the trial Court. This having not been done, the learned Member of Board of Revenue, has committed a manifest error by interfering with the declaration of shares by the trial Court under the impugned order.