MOHAN NATH Vs. BOARD OF REVENUE

JUDGEMENT

(1.) Mohan Nath has filed this petition under Article 226 of the Constitution of India seeking a writ in the nature of certiorari quashing the impugned orders dated 28.7.1976, 22.11.1988 and 19.7.1994, passed by the Sub-Divisional Officer (W) Chandauli, Varanasi Additional Commissioner (First), Varanasi Region, Varanasi and Board of Revenue respectively.

(2.) The properties involved in the litigation were situated in village Hanumanpur of Varanasi district. The present petitioner Mohan Nath was defendant No. 1 in a partition suit filed by his two brothers, namely, Prabhu Nath and Vireshwar Nath. The plaint case of the said two brother-plaintiffs was that the land of plot Nos. 14/19 and 14/22 and the residential apartments were their ancestral properties and since the three brothers inherited 1/3rd share each, they were entitled to have all the properties partitioned in equal share to that extent. Resisting the plaintiffs case as pleaded in their plaint, Mohan Nath. the defendant No. 1 of the said suit contended that the plaintiffs were not legally entitled to any relief as all the ancestral properties had already been partitioned by virtue of an award pronounced by the panches of the village. The said award was allegedly delivered by five panches of the village on 28.9.1958.

(3.) Having scrutinized the parties' pleadings and the evidence led in support thereof, the Sub-Divisional Officer (W), Chandauli recorded a finding that the two plaintiffs were entitled to have in equal proportion their shares in all the immoveable properties including the small agricultural holding. Mohan Nath was also held to be as share holder to the extent of one third share in all the properties. However, his plea of setting up an award dated 28.9.1958 was rejected. The trial court decreed the plaintiffs' suit and issued instructions for a preliminary decree to be drawn.