# Daya Shankar & Ors v. Board of Revenue & Ors

- **Citation:** (2022) 10 ILRA 760
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-30
- **Case number:** Writ-B No. 895 of 2022
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/daya-shankar-ors-v-board-of-revenue-ors-47783
- **Pages:** 8

## Headnote

Civil Law - U.P. Revenue Code 2006 -
Section 116 - U.P. Revenue Code Rules,
2016 - Rule-109 (5) (e) - U.P.Z.A & L.R.
Rules, 1950 - Rule-131 (1) (e) - Partition
suit - plots in separate possession of tenure
holders have to be allotted to him, if possible -
Preliminary decree in a partition suit only
determines the shares of the parties in the suit
property and does not determine the possession
of the parties or the portion to be allotted to
them in final decree - final decree in a suit
registered under Section 176 of the Act, 1950
has to be prepared in accordance with Rule 131
of the Uttar Pradesh Zamindari Abolition and
Land Reforms Rules, 1952 (hereinafter referred
to as, 'Rules, 1952') - Rule 131(1)(e) of the
Rules, 1952 provides that in making partition of
a holding into two or more portions, plots which
are in separate possession of a tenure-holder
shall, as far as possible be allotted to such
tenure-holder if they are not in excess of his
share - Petitioner may not be necessarily
entitled to be allotted the portion in which he
allegedly in separate possession, but the said
factor had to be taken into consideration by the
courts below before passing the final decree and
in
case
the
petitioner
was
in
separate
possession, the said plot had to be allotted to
the petitioner, if possible - Rule 131 (1) (a)
10 All. Daya Shankar & Ors. Vs. Board of Revenue & Ors.
761
provides that the valuation of the portion
allotted to each party shall be proportionate to
his share in the holding - According to the
principles under Rule 131 (1) (a), valuation of
the portion allotted to each party shall be
proportionate to his share in the holding (Para
9)

Allowed. (E-5)

List of Cases cited:

## Text

760 INDIAN LAW REPORTS ALLAHABAD SERIES
=
Annual
Dependency
x
Applied Multiplier
= ₹ 103635 x 13
255/-
(vi)
Claimant's
entitlement under
the
conventional
heads = Loss of
Estate + Funeral
Expenses
+Dependents'
consortium = ₹
15,000 + 15,000 +
40,000 x 2
=
₹1,10,0
00/-
(vii)
Total
Compensation =
Total
Dependency
+
Claimant's
entitlement
under
the
conventional
heads
=
₹14,57,
255/-

Total Compensation (in words) =
Rupees
Fourteen
Lac,
Fifty
Seven
Thousand, Two Hundred and Fifty Five
only.

35. In the result, this appeal succeeds
and is allowed with costs. The impugned
award passed by the Tribunal is modified
and the compensation awarded enhanced to
a total sum of ₹14,57,255/- (Rupees
Fourteen Lac, Fifty Seven Thousand,
Two Hundred and Fifty Five only). The
compensation would carry Simple Interest
at the rate of 7% per annum from the date
of institution of the claim petition, until
realisation. However, the sum of money
already deposited (paid or invested in terms
of the impugned award or interim orders of
this Court) shall be adjusted.
----------
(2022) 10 ILRA 760
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.09.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ-B No. 895 of 2022

Daya Shankar & Ors. ...Petitioners
Versus
Board of Revenue & Ors. ...Respondents

Counsel for the Petitioners:
Sri Sanjay Kumar Pandey

Counsel for the Respondents:
C.S.C., Sri Santosh Kumar Tiwari, Sri
Shardendu Kumar Pandey, Sri S.K. Purwar

Civil Law - U.P. Revenue Code 2006 -
Section 116 - U.P. Revenue Code Rules,
2016 - Rule-109 (5) (e) - U.P.Z.A & L.R.
Rules, 1950 - Rule-131 (1) (e) - Partition
suit - plots in separate possession of tenure
holders have to be allotted to him, if possible -
Preliminary decree in a partition suit only
determines the shares of the parties in the suit
property and does not determine the possession
of the parties or the portion to be allotted to
them in final decree - final decree in a suit
registered under Section 176 of the Act, 1950
has to be prepared in accordance with Rule 131
of the Uttar Pradesh Zamindari Abolition and
Land Reforms Rules, 1952 (hereinafter referred
to as, 'Rules, 1952') - Rule 131(1)(e) of the
Rules, 1952 provides that in making partition of
a holding into two or more portions, plots which
are in separate possession of a tenure-holder
shall, as far as possible be allotted to such
tenure-holder if they are not in excess of his
share - Petitioner may not be necessarily
entitled to be allotted the portion in which he
allegedly in separate possession, but the said
factor had to be taken into consideration by the
courts below before passing the final decree and
in
case
the
petitioner
was
in
separate
possession, the said plot had to be allotted to
the petitioner, if possible - Rule 131 (1) (a)
10 All. Daya Shankar & Ors. Vs. Board of Revenue & Ors.
761
provides that the valuation of the portion
allotted to each party shall be proportionate to
his share in the holding - According to the
principles under Rule 131 (1) (a), valuation of
the portion allotted to each party shall be
proportionate to his share in the holding (Para
9)

Allowed. (E-5)

List of Cases cited:

1. Paras Nath Vs Board of Revenue U.P. At
Allahabad & ors. 2019 (144) R.D. 604

2. Babu Ram & ors. Vs Board of Revenue,
Meerut & ors. 2016 (133) RD 459

(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. Heard Mr. Sanjai Kumar Pandey,
learned counsel for the petitioners, learned
Standing Counsel for respondent Nos.1, 2,
3, 6 and 8, Mr. S.K. Tiwari for respondent
No.4 and Mr. S. K. Pandey, learned
counsel for respondent No.5.

2. Brief facts of the case are that
plaintiff-respondent No.4 filed a case under
Section 176 of the U. P .Z. A. & L. R. Act
for partition of plot No. 364 area 0.683
hectare. There was defect in the suit as
such, suit was dismissed with liberty to file
a fresh suit vide order dated 27.07.2012. A
fresh Suit has been filed by plaintiffrespondent No.4 on 20.11.2014 in which
petitioners were plaintiff/defendants have
filed their written statement and declined
plaint
allegations.
Trial
Court/SubDivisional
Officer,
Bilsi,
Badaun
considering
the
evidence
on
record
dismissed the plaint suit vide judgment and
decree dated 29.03.2016. Against the
judgment and decree dated 29.03.2016,
passed by trial court plaintiff-respondent
No.4 filed an appeal before the Court of
Commissioner
and
the
Additional
Commissioner vide judgment and decree
dated 07.09.2017 allowed the suit, setting
aside the judgment and decree of trial court
dated 29.03.2016 and remanded the matter
back before trial court with direction to
decide the matter afresh after providing
opportunity
of
hearing
and
leading
evidence to both the parties. After remand,
the trial court, registered the suit under
Section 116 of the U.P. Revenue Code
2006 and decided the suit vide judgment
and decree dated 10.09.2018 passing
preliminary decree in the suit. Trial Court
after passing the preliminary decree in
disputed plot No.364 summoned the
Lekhpal for filing kurra in the suit.
Petitioners challenged the order of the trial
court dated 10.09.2018 by way of Revision
before the Revisional Court, which was
dismissed vide judgment and order dated
10.08.2021 on the ground that trial court
has
already passed
final
decree
on
22.03.2021 as such Revision is not
maintained against the preliminary decree
passed by the trial court. The Lekhpal
prepared the Kurra on 05.10.2018 and the
same was filed before the trial court on
28.09.2018. Trial Court further invited
objection of the parties to the kurra
accordingly, petitioner Nos.5 and 6 filed
their objections against the kurra on
22.10.2018 and petitioner Nos. 2 and 4
filed their objection against the kurra on
18.01.2018 and by their objection, they
prayed that kurra dated 18.09.2018 and
05.10.2018 be rejected. Lekhpal was
examined before the trial court. Trial Court
heard the objection filed by the petitioners
to the kurra and found that kurra has been
wrongly prepared and submitted as such
kurra submitted by the area Lekhpal was
rejected vide order dated 25.03.2019 and
the area Lekhpal was again directed for
making proper spot inspect and prepared
762 INDIAN LAW REPORTS ALLAHABAD SERIES
kurra in accordance with law as provided
under the Act and Rules. Plaintiffrespondent No.4 aggrieved with order
dated 25.03.2019 filed a Revision under
Section 210 of the U.P. Revenue Code,
2006 before the Commissioner, but there
was no interim order in the Revision, as such
Area Lekhpal filed a fresh kurra before the
trial court on 13.03.2020. After submission of
fresh Kurra dated 13.03.2020 Additional
Commissioner Bareilly, Division Bareilly
without considering the material facts allow
the Revision filed by contesting respondent
vide order dated 24.02.2021 setting aside the
order dated 25.03.2019 and sent the matter
back before the trial court and proceed further
according
the
Kurra
dated
28.09.2018/5.10.2018. Petitioners challenged
the order dated 24.02.2021 passed by
Additional Commissioner through Revision
before respondent No.1 but no order has been
passed in the Revision and trial court
proceeded with the matter in pursuance of the
order dated 24.02.2021 and passed final
order/decree
on
22.03.2021/31.03.2021.
Petitioners challenged the order dated
10.09.2018/ 22.03.2021/ 31.03.2021 through
Appeal before respondent No.2 under section
207 of the U.P. Revenue Code, 2006, who
dismissed the Appeal vide order dated
10.08.2021. Against the appellate court
judgment dated 10.08.2021 as well as
judgment and decree passed by the courts
below Second Appeal under section 208 of
U.P. Revenue Code, 2006 preferred by the
petitioners was also dismissed on the same
ground vide order dated 21.02.2022. Hence
this writ petition.

3. This Court after hearing the writ
petition for admission passed the following
interim order dated 30.05.2022:

"Heard
Sri
Sanjai
Kumar
Pandey,
learned
counsel
for
the
petitioners, Sri Sanjay Kumar Singh,
learned
Additional
Chief
Standing
Counsel for the State respondents and Sri
Santosh Kumar Tiwari, learned counsel
for respondent No.4.

Learned
counsel
for
the
petitioners points out that neither the first
appellate court nor the second appellate
court has adverted to the objections raised
by the petitioners against the decree
passed by the trial court.

Learned counsel for respondent
No.4 submits that the possession has been
delivered pursuant to the decree of the
trial court; he prays for two weeks' time to
take instructions and to file a counter
affidavit.

The petitioners would have two
weeks thereafter for filing rejoinder
affidavit.

List on 25.07.2022 as fresh.

Till the next date of listing,
parties shall maintain status quo with
regard to the possession over the land in
question."

4. Learned counsel for the petitioners
submitted that objections against the kurra
prepared by Area Lekhpal on 08.09.2018/
09.02.2018 has not been considered in
accordance with law as provided under the
U.P. Revenue Code and the rules framed
thereunder and same has been illegally
confirmed without considering the points
mentioned in the objections. He further
submitted that subsequent kurra prepared
and filed before the trial court on
13.03.2020 has not been taken into
consideration and the earlier kurra was
confirmed.

5.

He
further
submitted
that
provisions of Rule 109 of U.P. Revenue
Code Rules, 2016 has not been considered
by the courts below, as such the impugned
10 All. Daya Shankar & Ors. Vs. Board of Revenue & Ors.
763
orders are wholly illegal. He placed
reliance upon the Rules 109 of the U.P.
Revenue Code Rules, 2016, which is as
follows:

"Rule 109 of the U.P. Revenue
Code , 2016

109. Preliminary and Final
decrees (Section 117)-

(1) If the plaint referred to in
rule 107 or rule 108 is in order, it shall
be
registered
as
a
suit
and
the
defendants shall be called upon to file
their written statements. The suit shall
then be decided according to the
provisions
of
the
Code
of
Civil
Procedure, 1908.

(2) Before making a division
the court shall-

(a) determine separately the
share of the plaintiff and each of the
other co-tenure holders ;

(b) record which, if any, of the
co-tenure holders wish to remain joint ;
and

(c) make valuation of the
holding (or holdings) in accordance with
the circle rate fixed by the Collector
applicable to each plot in the holding.

(3) If the suit is decreed, the
Court shall pass a preliminary decree
declaring the share of the plaintiff.

(4) After the preparation of
preliminary decree the Sub Divisional
Officer shall get the Kurra prepared
through the Lekhpal.

(5) The Lekhpal shall submit
the Kurra report within a period of one
month from the date of receiving the
order in this regard and at the time of
preparation of Kurra he shall observe
the following principles-

(a) the plot or plots shall be
allotted to each party in proportionate to
his share in the holding;

(b) the portion allotted to each
party shall be as compact as possible;

(c) as far as possible no party
shall be given all the inferior or all the
superior classes of land;

(d) as far as possible existing
fields shall not be split up;

(e) Plots which are in the
separate possession of a tenure holder
shall, as far as possible, be allotted to such
tenure holder if they are not in access of
his share;

(f) If the plot or any part thereof
is of commercial value or is adjacent to
road, abadi or any other land of
commercial value, the same shall be
allotted
to
each
tenure
holder
proportionately and in the case of second
condition the same shall be allotted
proportionately adjacent to road, abadi or
other land of commercial value; and

(g) If the co-tenure holders are
in separate possession on the basis of
mutual consent or family settlement, the
Kurra shall, as far as possible, be fixed
accordingly.

(6) When the report regarding
Kurra is submitted by the Lekhpal, the
objection shall be invited thereon and
thereafter the appropriate order shall be
passed by the Sub Divisional Officer after
affording opportunity of hearing to the
parties and considering the objection, if
any, filed against the report submitted by
the Lekhpal.

(7) If the report and Kurra is
confirmed by the Sub Divisional Officer,
the final decree shall follow it.

(8) At the stage of the final
decree, the Court shall-

(a) Separate the share of the
plaintiff from that of the defendant by
metes and bounds.

(b) Place on record a map
showing in different colours the properties
764 INDIAN LAW REPORTS ALLAHABAD SERIES
given to plaintiff as distinct from those
given to the defendant.

(c) Apportion the land revenue
payable by the parties.

(d) Direct the record of rights
and map to be corrected accordingly.

(9) If, for adjusting the equities
between
the
parties,
payment
of
compensation regarding trees, wells or
other improvements becomes necessary,
the revenue Court concerned may also
pass necessary orders at the stage of final
decree.

(10) The Sub-Divisional Officer
shall make an endeavour to decide the suit
within the period of six months and if the
suit is not decided within such period, the
reason shall be recorded."

6. He next submitted that first and
second appellate court even have not
considered
objections
raised
by
the
petitioners against the decree of the trial
court, as such the impugned judgment and
order passed by first and second appellate
court are manifestly erroneous. He also
submitted that trial court in pursuance of
the order dated 24.02.2021 passed by
Additional Commissioner proceeded with
the matter in spite of fact that petitioners
have challenged the order before the Board
of Revenue, but trial court without any
opportunity of hearing passed the final
judgment and decree on 22.03.2021/
31.03.2021, which are wholly illegal.

7. On the other hand, contesting
respondents submitted that kurra was
rightly prepared by the Lekhapl and
submitted
before
the
trial
court
on
08.09.2018/05.10.2018.
Kurra
was
prepared considering the provisions of the
U.P. Revenue Code and Rules framed
thereunder i.e. as per possession of each
party over the land in question. He further
submitted that proper opportunity of
hearing has been afforded by the courts
below to the petitioner by maintaining
kurra prepared and submitted in pursuance
of the judgment and decree passed by the
courts below. He further submitted that suit
for partition was filed in the year 2018 and
petitioners are not permitted by the court to
finalize the proceeding for partition. He
further submitted that trial court vide order
dated 25.03.2019 has rejected the kurra
prepared on 08.09.2018/05.10.2018 on the
technical grounds, as such the order dated
25.03.2019 was set aside vide order dated
24.02.2021. He further submitted that no
interference
is
required
against
the
impugned judgment and writ petition is
liable to be dismissed.

8. There is no dispute about the fact
that suit for partition filed under Section
176 of U.P.Z.A. & L.R. Act was decreed
and order was passed for partition of kurra
accordingly, kurra
was
prepared
but
petitioners filed objection against the kurra,
which has been decided against the
petitioners and the kurra prepared on
08.09.2018/
05.10.2018
has
been
maintained by the impugned judgment.

9. Since on the basis of the objection
of the petitioners to the kurra dated
28.09.2018/05.10.2018
Sub-Divisional
Officer vide order dated 25.03.2019 has
found
that
kurra
dated
28.09.2018/
05.10.2018 is legally erroneous as such the
same was cancelled and Lekhpal was
directed to prepare fresh kurra after making
spot inspection in presence of both parties.
In
compliance
of
the
order
dated
25.03.2019 even fresh kurra was prepared
and filed before trial court on 13.03.2020
which was according to Rule-109 of U.P.
Revenue Code Rules 2016 taking into
consideration the possession of the parties
10 All. Daya Shankar & Ors. Vs. Board of Revenue & Ors.
765
also,
but
revisonal
court
without
considering the subsequent kurra dated
13.03.2020 has maintained the earlier kurra
dated 28.09.2018/05.10.2018 which is
wholly illegal and against the provisions
contained under Rule 109 of U.P. Revenue
Code Rules 2016. This Court in the case of
Paras Nath vs. Board of Revenue U.P. At
Allahabad and others 2019 (144) R.D.
604 has held that plots in separate
possession of tenure holders have to be
allotted to him, if possible. Paragraph Nos.
6, 7, 8 and 9 of the judgment are as
follows:

6. A perusal of the records shows
that in the plaint filed by respondent No. 5
instituting the suit registered under
Section 176 of the Act, 1950, the plaintiff
had himself pleaded that there had been a
family settlement between the parties and
the parties were in separate possession of
the plots on the basis of the family
settlement. The said fact was also pleaded
by the petitioner as defendant in his
written statement. Evidently, the issue
regarding family settlement and the fact
that
the
parties
were
in
separate
possession of the different plots or
different areas of the plots was the
admitted case of the parties and was
before the trial court even at the time of
the preliminary decree was passed by the
trial court. The preliminary decree in a
partition suit only determines the shares
of the parties in the suit property and does
not determine the possession of the parties
or the portion to be allotted to them in
final decree. The final decree in a suit
registered under Section 176 of the Act,
1950 has to be prepared in accordance
with Rule 131 of the Uttar Pradesh
Zamindari Abolition and Land Reforms
Rules, 1952 (hereinafter referred to as,
'Rules, 1952'). Rule 131(1)(e) of the
Rules, 1952 provides that in making
partition of a holding into two or more
portions, plots which are in separate
possession of a tenure-holder shall, as far
as possible be allotted to such tenureholder if they are not in excess of his
share.
The
petitioner
may
not
be
necessarily entitled to be allotted the
portion in which he allegedly in separate
possession, but the said factor had to be
taken into consideration by the courts
below before passing the final decree and
in case the petitioner was in separate
possession, the said plot had to be allotted
to the petitioner, if possible.

7. In view of the aforesaid, the
orders dated 4.7.2014 passed by the
Deputy
District
Magistrate,
i.e.,
respondent No. 3 in Case No. 15/209,
6.5.2016 passed by the Commissioner,
Gorakhpur Division, Gorakhpur, i.e.,
respondent No. 2 in Appeal No. 1103/D2014/C2014054901562
and
26.7.2016
passed by the Board of Revenue, U.P. at
Allahabad, i.e., respondent No. 1 in
Second Appeal No. 881/16 are evidently
contrary to law and are hereby quashed.

8. The matter is remanded back
to the trial court, i.e., the Deputy District
Magistrate,
Tehsil-Sadar,
DistrictMaharajganj to pass fresh orders on the
objections filed by the petitioner to the
report of the Lekhpal within a period of
three months from the date a certified
copy of this order is produced before him
by either of the parties.

9. With the aforesaid direction,
the writ petition is allowed.

10. Rule-109 (5) (e) of U.P. Revenue
Code Rules, 2016 is similar to that of Rule131 (1) (e) of U.P.Z.A & L.R. Rules.

11. This Court in another case
reported in 2016 (133) RD 459 Babu Ram
766 INDIAN LAW REPORTS ALLAHABAD SERIES
and others Vs. Board of Revenue,
Meerut and others has explained the
principles provided under Rule-131 (1) (a)
of the U.P.Z.A. & L.R. Rules and has held
that provision of Rules have not been
followed as such the impugned orders
passed for preparation of kurras as well as
appellate orders were set aside and matter
was remitted back before trial court for
obtaining fresh kurra and for fresh
proceeding for final decree. Paragraph Nos
8, 9, 10 and 11 of the judgment are as
follows:

"8. Rule 131 (1) (a) provides that
the valuation of the portion allotted to
each party shall be proportionate to his
share in the holding. The petitioners took
plea that plot 55 situates on Dastoi-Hapur
main road and has commercial value. The
respondents have not denied this fact but
stated that in east of plot 67 also there is a
road. Lekhpal, in his statement, has
admitted that this eastern road is a
kachcha road and in between this road
and plot 67 there is 10 feet wide nala.
Market value of plot 55 and 67 cannot be
said to be equal. According to the
principles under Rule 131 (1) (a),
valuation of the portion allotted to each
party shall be proportionate to his share in
the holding. Assistant Collector is not
justified in allotting share to some of the
co-sharers giving frontage on roadside in
plot
55
and
totally
depriving
the
petitioners from plot 55. Supreme Court in
M.L. Subbaraya Setty v. M.L. Nagappa
Setty, (2002) 4 SCC 743, held that the
legal position is well settled that on mere
severance of status of joint family, the
character of any joint family property does
not change with such severance. It retains
the character of joint family property till
partition. We may also clarify that the
direction that the present possession of the
parties shall be respected as far as possible
also does not mean that if the plaintiff is
not in possession of any immovable
property and the same are in possession of
the defendants, he could not be allotted
the immovable property even though he is
so entitled as per his share. If that was so,
the words "as far as possible" in the said
direction would become redundant.

9. Plot 54 is adjacent to plot 55
and form a compact area on the spot. Plot
55 has a big frontage on Dastoi-Hapur
road. Total area of plot 54 and 55 is
1.0880 hectare. Tenure holders of kurra-1
together have 17/30 share. They were
allotted an area of 0.8381 hectare in plots
54 and 55. The petitioners together have
7/30 share but they were not allotted any
land in plots-54 and 55. The principles as
provided under Rule 131 (1) (a) have not
been followed, in as much as the
petitioners have been deprived from land
of commercial value.

10. In final decree 8 kurras were
prepared. Plots 54 and 55 form compact
area. In the same way plots 66 and 67
form compact area. In case plots 54 and
55 are divided in north south giving
frontage to all the co-sharers on DastoiHapur road according to their share then
partition according to principles contained
under Rule 131 (1) (a) may be complied
with. Similarly compact area of plots 66
and 67 may be divided in east west giving
a common rast in west, according to their
share.

11. In view of the aforesaid
discussion, the writ petition succeeds and
is allowed. The kurra dated 24.09.2014,
orders
of
Assistant
Collector
dated
10.08.2015,
Additional
Commissioner
dated 20.10.2015 and Board of Revenue,
U.P. dated 12.05.2016 are set aside. The
matter is remanded to Assistant Collector
for
obtaining
fresh
kurra
relating
10 All. Mohd. Imran Vs. Dy. Director of Consolidation & Ors.
767
partition and after hearing the parties
pass fresh final decree in partition suit."

12. In view of ratio of law laid down
in Paras Nath (Supra), Babu Ram
(Supra) as well as according to the
provisions contained under Rule 109 of the
U.P. Revenue Code Rules, 2016 for
preparation of the kurra, the authorities
have to observe certain principles, which
are mentioned in the said Rule 109 of U.P.
Revenue Code Rules, 2016, but the same
has not been followed and the objection
against the kurra filed by the petitioners has
been arbitrarily rejected by the trial court
and maintained by the first and second
appellate court, which is wholly illegal and
against the provisions contained under Rule
109 of U.P. Revenue Code Rules, 2016, as
such the impugned judgment and order
dated 21.02.2022 passed by respondent
No.1
i.e.
Board
of
Revenue,
U.P.
Allahabad, judgment and order dated
10.08.2021 passed by the respondent No.2
i.e.
Additional
Commissioner,
(Administration) Bareilly Mandal Bareilly,
judgment dated 22.03.2021 and decree
dated 31.03.2021 passed by Sub Divisional
Officer, Bilsi, Budaun are wholly illegal
and liable to be set aside, the same are
hereby set aside. The writ petition is
allowed and the matter is remanded back
before the trial court to decide the objection
of the petitioners dated 22.10.2018 afresh
in accordance with the provisions contained
under rules 109 of the U.P. Revenue Code
Rules, 2016 expeditiously preferably within
a period of four months from the date of
production of certified copy of this order.
----------
(2022) 10 ILRA 767
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.08.2022

BEFORE
THE HON'BLE DINESH PATHAK, J.

Writ-B No. 1622 of 2022

Mohd. Imran ...Petitioner
Versus
Dy. Director of Consolidation & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Ved Mani Sharma

Counsel for the Respondents:
C.S.C., Sri Shivajee Singh Sisodiya

Civil Law - U.P. Consolidation of Holdings
Act,1953 - U.P. Consolidation of Holdings
Rules Rule 26 - Code of Civil Procedure,
1908 - O. 22 - Proceedings before the
consolidation authorities are treated as a
judicial proceeding but it does not mean
that the provisions of C.P.C. are made
applicable in the proceeding under the
U.P.C.H. Act - provisions as enunciated
under Order 22 of Code and the provisions
as enunciated under Article 120 and 121
of the Limitation Act are not applicable in
a proceeding under the U.P.C.H. Act,
though provisions of section 5 of the
Limitation Act, 1963 has been made
applicable, for the limited purposes in
proceedings under U.P.C.H. Act by virtue
of Section 53-B of the U.P.C.H. Act (Para
17)

Grievance
of
the
petitioner
is
that
the
Settlement Officer of Consolidation illegally
allowed the substitution application on the same
day of its filing, without giving opportunity of
hearing to the present petitioner - Held - mere
furnishing an information qua death of any
party, along with the details of his heir and legal
representatives, would be suffice for the
purpose of survival of the cause of action
involved in the matter - petitioner failed to
demonstrate as to how he is prejudiced due to
the order passed by the Settlement Officer of
Consolidation in allowing the substitution or
there is any likelihood of causing miscarriage of
justice to the present petitioner (Para 18)

Dismissed. (E-5)