DAYARAM SINGH Vs. STATE OF U. P.

JUDGEMENT

(1.) Heard Mr. Shreyas Srivastava, learned counsel for the petitioners, Mr. Krishna Mohan, learned counsel appearing for plaintiff-respondent no. 2, Mr. Arun Kumar Pandey, learned counsel for respondent no. 3 (Gaon Sahba) and Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents.

(2.) Brief facts of the case are that plaintiff respondent no.2 filed a suit no.4625 of 2022 for division of holdings in Khasra No.1096 (old no.714/4) area 0.1010 hectare situated in Village- Goharwar Hallu, Pargana Boodpur, Tahsil- Chandpur, District- Bijnor. Defendant- petitioners filed a written statement stating specifically that revenue Court had no jurisdiction to try a suit under Sec. 116 of U.P. Revenue Code, 2006 as the property had been earmarked as abadi. Sub-Divisional Officer / respondent no.4 passed a preliminary decree vide judgment dtd. 13/12/2022 declaring 1/3 share of plaintiff, 1/3 share defendant no.1 and 1/3 share of defendant no.2. Against the judgment dtd. 13/12/2022 passed by the Sub-Divisional Officer / respondent no.2, petitioners filed an appeal under Sec. 207 of U.P. Revenue Code, 2006, which was registered as Case No.228 of 2023, Computerized Case No.202313000000223. Commissioner, Moradabad Division, Moradabad / respondent no.5 dismissed the appeal filed by the petitioners vide order dtd. 10/7/2023, hence this writ petition. This Court vide order dtd. 10/8/2023 issued notice to respondent no.4. In pursuance of the order dtd. 10/8/2023 respondent no.2 has put in appearance and filed his counter affidavit. Petitioners have filed his rejoinder affidavit also.

(3.) Learned counsel for the petitioners submitted that the property in question was recorded as abadi in the revenue records, as such, the suit for partition is not maintainable before the revenue Court. He further submitted that the specific objection was taken before the Sub-Divisional Officer/ respondent no.4 at the instance of the defendant / petitioners that land in dispute is abadi, as such, the suit for partition under Sec. 116 of U.P. Revenue Code, 2006 is not maintainable but without considering the objection of the petitioners in accordance with law, the Court has proceeded and passed the preliminary decree in the matter. He further submitted that the property in question had been earmarked as abadi in the consolidation proceeding and kept outside the consolidation scheme. He further placed the C.H. Form 2A, C.H. Form 18 and C.H. Form 41 prepared during consolidation operation, which has been annexed as Annexure Nos.6, 7 and 8 to the writ petition in order to demonstrate that the plot no.1096 (old no.714/4) was recorded as abadi. He further placed the revenue map of the village, which has been annexed as Annexure No.RA-2 to the rejoinder affidavit dtd. 8/10/2023 in order to demonstrate that the plot no.1096 has been shown as abadi. He next submitted that the Sub-Divisional Officer has not considered the documentary evidences filed on behalf of the petitioners before the Court and in the arbitrary manner preliminary decree has been passed, which has been maintained in appeal by the Commissioner. He placed the reliance upon the judgment of Hon'ble Apex Court as well as of this Court in order to demonstrate that the suit for partition before the Revenue Court in respect to the abadi land is not maintainable as well as the revenue entry made during consolidation operation cannot be ignored. The particulars of the cases are as follows: