RAM KUMAR Vs. BOARD OF REVENUE AND OTHERS

JUDGEMENT

(1.) THE Appellant instituted a suit for division of a holding Under Section 176 of the ZA and LR Act. On 28 -9 -1962 the trial court passed a preliminary decree determining the share of the Plaintiff at one -fourth. Ram Kishori Respondent No. 4 was also declared to have one -fourth, while Ram Sahai Respondent No. 8 had a half share in the holding. The court, however, found that the area of the holding in dispute was less than six and a quarter acres. Under Section 178, ZA and LR Act it declared that it was not divisible. It therefore, directed its sale. Accordingly the court valued the holding at Rs. 714/ - and finding that of the various co -sharers Ram Kumar the Plaintiff was landless, it held that he had a preferential right to purchase the holding and by its order dt. 29 -4 -1967, the trial court directed the Plaintiff to deposit an amount of Rs. 535.50 P. by 12 -5 -1967, which should be distributed among the other shareholders. Aggrieved, Ram Sahai, one of the Defendants, filed an appeal on 22 -5 -1967. It appear that during the pendency of the appeal namely, on 17 -8 -1967 Bhagirath who was the father of Ram Kumar Plaintiff and Ram Kishori Defendant, was (sic). He left some holdings in the same circle where the land in dispute was situate which was inherited by the Plaintiff Ram Kumar and the Defendant Ram Kishori. At the hearing of the appeal it was urged on behalf of the Defendant Appellant that since by now Ram Kumar had come to own land in the same circle, he was no longer landless and so, he was not a preferential claimant to purchase the holding. It also appears that even before the filing if the appeal, the two Defendants, had transferred part of their shares in this holding to Smt. Beni Bai and Smt. Shyam Bai. Thereupon, the two purchasers applied to be impleaded as parties to the appeal with a view to claim that they (being) co -sharers and landless were equally entitled to purchase the holding.

(2.) THE appellate court rejected the application of the purchasers for being impleaded as parties. It also refused to take into consideration the subsequent event of the death of the Plaintiff's father. It held that the Plaintiff's inheritance of the property will not debar him from getting his land, because he had a preferential right when the holding was offered to him by the trial court. The preferential rights of the patties will be decided in between those parties who were parties on the date of the institution of the suit and so, the purchasers could not now come in.

(3.) RAM Sahai then instituted a writ petition in this Court. A learned single Judge held that the fact of the death of the Plaintiff's father had a material bearing upon the question whether the Plaintiff was preferentially entitled to purchase the holding and the subsequent event was liable to be taken into consideration while holding the appeal. He repelled the objection raised on behalf of the Plaintiff -Respondent ,that no -appeal lay. On this view the writ petition was allowed and the orders of the Board of Revenue and the Add. Commr. were quashed. It was directed that the appeal shall be heard and decided in accordance with he observations made in the judgment. Aggrieved, the Plaintiff has come up in appeal.