JAYRAM Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri Satyendra Pandey, for the petitioner and Sri Kamlesh Kumar Mishra, for respondent no. 5.

(2.) The facts of the case are that respondent no. 5 instituted a partition suit under Section 116 of the Uttar Pradesh Revenue Code, 2006 for partition of the suit property claiming that he and the petitioner were co-tenure holders of the suit property having 1/2 share each. The petitioner contested the aforesaid suit by filing his written statement wherein he admitted that the petitioner and respondent no. 5 had 1/2 share each in the suit property but alleged that the suit property had already been partitioned between the parties through a family settlement. The trial court vide its judgment and decree dated 25.4.2017 decreed the suit filed by respondent no. 5 and determined the share of the petitioner and respondent no. 5 as 1/2 each in the suit property and directed that the final decree be prepared. Subsequently, the concerned Lekhpal submitted a Kurra report proposing the division of the holding in two parts and the respondent no. 5 was shown to be in possession over the part which was adjacent to road running on the east of the plot and the petitioner was shown to be in possession of the part which was adjacent to roads on the east and south of the disputed plot. The said report was submitted on 25.4.2017. It appears from the records that respondent no. 5 filed his objections to the report dated 25.4.1997 of the Lekhpal stating that the valuation of the two parts was different and the Kurra proposed in the share of respondent no. 5 was of a lesser value than the Kurra proposed in the share of the petitioner as the share proposed to the petitioner was adjacent to two roads while Kurra proposed to respondent no. 5 was adjacent only to one road. The Deputy District Magistrate vide his order dated 27.6.2018 accepted the report dated 25.4.2017 submitted by the Lekhpal. Aggrieved by the order dated 27.6.2018, respondent no. 5 filed an appeal before the Additional Commissioner (Administration - Ist), Gorakhpur Division, District Gorakhpur, i.e., respondent no. 3 which was registered as Case No. 01161 of 2018 and the respondent no. 3 vide his order dated 11.9.2018 allowed the said appeal and remanded back the matter to the trial court to pass fresh orders after getting the plot inspected and after making every endeavour that both the parties should get a plot of equal value adjacent to the roads running on the southern and eastern side of the suit property. Aggrieved, the petitioner filed a revision before the Board of Revenue, Uttar Pradesh at Allahabad, i.e., respondent no. 2 which was registered as Revision No. 2357 of 2018 and was dismissed by respondent no. 2 vide its order dated 8.1.2019. The orders dated 8.1.2019 and 11.9.2018 passed by respondent nos. 2 and 3 have been challenged in the present writ petition.

(3.) It has been argued by the counsel for the petitioner that the division of holding, i.e., the suit property as proposed by respondent no. 3 vide his order dated 11.9.2018 would make it difficult to cultivate the holding as the suit property was a small plot and the division proposed by respondent no. 3 would result in dividing the holding in more than two parts. It was argued that for the aforesaid reason, the order dated 11.9.2018 is violative of Rule 109(5)(b) and (d) of the Uttar Pradesh Revenue Code Rules, 2016 (hereinafter referred to as, 'Rules, 2016') and liable to be set-aside.