# Dayaram Singh & Anr v. State of U.P. & Ors

- **Citation:** (2023) 11 ILRA 923
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-30
- **Case number:** Writ-C No. 25986 of 2023
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dayaram-singh-anr-v-state-of-u-p-ors-49443
- **Pages:** 5

## Headnote

Civil Law - U.P. Revenue Code, 2006 -
Section 116 - Partition - Abadi land - Suit
for division of holdings - Jurisdiction -
Plaintiff (respondent no. 2) filed a suit for
division of holdings. Defendant-petitioners
filed a written statement specifically
contending that the revenue court had no
jurisdiction to try the suit under Section
116 of the U.P. Revenue Code, 2006, as
the property had been earmarked as
abadi. In C.H. Form 2A, 18, and C.H. Form
41, the plot in question was mentioned as
abadi, but in the final C.H. Form 45, plot
no. 1096 (area 0.1010 hectare) was
recorded as bhumidari plot of the tenure
holders (petitioners as well as respondent
no. 2). In the Khatauni also, the plot in
question was mentioned as bhumidari
land of the petitioners and respondent no.

## Text

11 All. Dayaram Singh & Anr. Vs. State of U.P. & Ors.
923

38. In the instant case, since the
petitioner has utterly failed to make out a
case of arbitrariness, malafide or the
decision was intended to favour someone
or the decisions suffered from any
perversity, even the allegations made
against the State Authorities of favouring a
particular bidder has been found to be
baseless and contrary to record. Hence,
there is no merit in the writ petition.

39. Accordingly, the instant writ
petition is dismissed.
----------
(2023) 11 ILRA 923
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.10.2023

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ-C No. 25986 of 2023

Dayaram Singh & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Shreyas Srivastava

Counsel for the Respondents:
C.S.C, Sri Arun Kumar Pandey, Sri Krishna
Mohan

Civil Law - U.P. Revenue Code, 2006 -
Section 116 - Partition - Abadi land - Suit
for division of holdings - Jurisdiction -
Plaintiff (respondent no. 2) filed a suit for
division of holdings. Defendant-petitioners
filed a written statement specifically
contending that the revenue court had no
jurisdiction to try the suit under Section
116 of the U.P. Revenue Code, 2006, as
the property had been earmarked as
abadi. In C.H. Form 2A, 18, and C.H. Form
41, the plot in question was mentioned as
abadi, but in the final C.H. Form 45, plot
no. 1096 (area 0.1010 hectare) was
recorded as bhumidari plot of the tenure
holders (petitioners as well as respondent
no. 2). In the Khatauni also, the plot in
question was mentioned as bhumidari
land of the petitioners and respondent no.
2. Held: C.H. Form 45 being the final
document
prepared
under
the
U.P.
Consolidation of Holdings Act cannot be
ignored in subsequent proceedings. Since
the plot in dispute stands recorded as
bhumidari in C.H. Form 45 as well as in
the Khatauni prepared by the authorities,
no further investigation is required by the
Court to determine whether the plot is
agricultural or abadi.

Dismissed. (E-5)

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

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 Section 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 dated 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
dated
924 INDIAN LAW REPORTS ALLAHABAD SERIES
13.12.2022 passed by the Sub-Divisional
Officer / respondent no.2, petitioners filed
an appeal under Section 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
dated 10.7.2023, hence this writ petition.
This Court vide order dated 10.8.2023
issued notice to respondent no.4. In
pursuance of the order dated 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 Section 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 & 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 dated 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:

i. 1976 RD 237 (Vishwa Vijay
Bharati Vs. Fakhrul Hassan and Others).

ii. 2019 (142) RD 649 (Dharam
Singh (D) thr. L.Rs. and Others Vs. Prem
Singh (D) Thr. L.Rs.).

iii. 1983 RD 279 (Hashmat Khan
Vs. Imams).

iv. 1974 Allahabad Civil Nirnaya
70 (Ram Saran and Another Vs. Drigraj
and Others).

v. 1979 RD 78 (Kamla Shanker
and Others Vs. Dy. Dir. of Consolidation
and Others).

vi. 2004 A.L.J. 1498 (Ram
Prasad
Vs.
Deputy
Director
of
Consolidation Pratapgarh).

4. On the other hand, Mr. Krishna
Mohan, learned counsel appearing on
behalf
of
plaintiff-respondent
no.2
submitted that in C.H. Form 45 and in the
11 All. Dayaram Singh & Anr. Vs. State of U.P. & Ors.
925
Khatauni plot no.1096 is not recorded as
abadi. He placed the certified copy of the
khatauni before the Court on the date of
argument in which plot no.1096 area
0.1010 hectare is recorded in the name of
petitioner nos.1 & 2 and respondent no.2 as
Class 1 (Ka) (Sankarmai bhumidhar). He
further submitted that even in the khatauni
plot no.1096 area 0.1010 hectare is
recorded in the name of both parties as
Class 1 (Ka) (Sankarmai bhumidhar), as
such, the objection taken by the petitioners
that land is abadi cannot be entertained. He
further submitted that the C.H. Form 45 is
the final document of the consolidation
operation, as such, the suit filed for
partition of plot no.1096 cannot be
dismissed on the ground that plot is abadi.
He further submitted that petitioner no.1
has filed his written statement in the suit
but petitioner no.2 never filed his written
statement in support of the allegation of the
petitioner no.1. He further submitted that
the petitioner intentionally did not filed the
recent khatauni as well as the C.H. Form 45
in respect to the plot no.1096, as such, the
writ petition filed by the petitioners is liable
to be dismissed. He further placed the
khatauni of 1429-1434 fasli (1.7.202130.6.2027) in respect to plot no.1096 area
0.1010 hectare, which has been annexed as
Annexure No.2 to the counter affidavit in
order to demonstrate that the plot in dispute
is recorded as bhumidhari plot in the name
of both parties. He further submitted that
the
Additional
Commissioner
while
dismissing
the
appeal
filed
by
the
petitioners has mentioned that Khatauni of
1429-1434 fasli in respect to the plot
no.1096 is on the record of the trail Court
which demonstrate that the disputed plot is
agricultural plot. He further submitted that
the petitioners along with respondent no.2
was recorded in C.H. Form 45 as well as in
the Khatauni, as such, it cannot be said that
the petitioners were not aware about the
entry of the plot in dispute. He also
submitted that the case law cited by learned
counsel for the petitioners will not be
applicable in the facts and circumstances of
the case as in the final revenue records the
plot in dispute is recorded as bhumidhari
plot of the petitioners as well as contesting
respondent no.2. He further submitted there
is no order under Section 80 of U.P.
Revenue Code, 2006 to declare the plot in
dispute as non-agricultural. He lastly
submitted that no interference is required in
the matter and the writ petition is liable to
be dismissed.

5. Mr. Abhishek Shukla, learned
Additional Chief Standing Counsel for the
State-respondents also placed the reliance
upon the judgment of this Court reported in
2019 (145) RD 195 (Dr. Prem Narain &
Others vs. Board of Revenue & Others) in
order to demonstrate that the question
relating to the jurisdiction in respect to the
suit for partition was entertained by this
Court in exercise of jurisdiction under
Article 226 of the Constitution of India and
matter was remanded back to the trial Court
to examine the issue relating to the
jurisdiction afresh after setting aside the
earlier
orders
passed
by
the
Court
concerned. He placed reliance upon the
paragraph nos.25, 26 & 27 of the
aforementioned judgment.

6. I have considered the argument
advanced by learned counsel for the parties
and perused the records.

7. There is no dispute about the fact
that respondent no.2 filed a suit under
Section 116 of U.P. Revenue Code, 2006
for partition impleading the petitioners as
defendants in respect to plot no.1096 area
0.1010 hectare of Khata no.221. There is
926 INDIAN LAW REPORTS ALLAHABAD SERIES
also no dispute about the fact that petitioner
no.1 (Dayaram Singh) has filed his written
statement taking ground that suit is not
maintainable in respect to plot no.1906 as
the same is abadi. There is also no dispute
about the fact that respondent no.4 / SubDivisional
Officer
has
passed
the
preliminary
decree
dated
13.12.2022,
which was maintained in appeal by the
Commissioner vide order dated 10.7.2023.

8. In order to appreciate the
controversy involved in the matter, perusal
of Sections 116 & 117 of U.P. Revenue
Code, 2006 will be relevant, which are as
under:

"116.
Suit
for
division
of
holding.?(1) A bhumidhar may sue for the
division of the holding of which he is a cosharer.

[(2) In every such suit, the Court
may also divide the trees, wells and other
improvements existing on such holding but
where such division is not possible, the
trees, wells and other improvements
aforesaid and valuation thereof shall be
divided and adjusted in the manner
prescribed.]

(3) One suit may be instituted for
the division of more holdings than one
where all the parties to the suit other than
the
[Gram
Panchayat]
are,
jointly
interested in each of the holdings.

(4) To every suit under this
section, the [Gram Panchayat] concerned
shall be made a party.

117. Duty of Court in suits for
division of holding.?(1) In every suit for
division of holding under Section 116 the
Court of Assistant Collector shall?

(a) follow such procedure as may
be prescribed;

(b) apportion the land revenue
payable in respect of each such division.

(2) A division of holding referred
to in Section 116 shall not affect the joint
liability of the tenure-holders there of in
respect of the land revenue payable before
the date of the final decree."

9. Perusal of revenue records cited by
learned counsel for the parties demonstrate
that in C.H. Form 2A, 18 and C.H. Form
41, the plot no.1096 (old plot no.714 /2) is
mentioned as abadi but in the final C.H.
Form 45, the plot no.1096 area 0.1010
hectare is recorded as bhumidari plot of the
tenure holders (petitioners as well as
respondent no.2). C.H. Form 45 is final
document
prepared
under
the
U.P.
Consolidation of Holdings Act, as such, the
same cannot be ignored in the subsequent
proceeding. In the Khatauni also the plot
no.1096 area 0.1010 hectare is mentioned
as bhumidhari land of the petitioners as
well as respondent no.2. Consolidation
operation has already been concluded in the
village in question, as such, the entry made
in the C.H. Form 45 and the Khatauni
prepared accordingly, in respect to the plot
in question cannot be ignored. C.H. Form
45 although has not been annexed by the
petitioners as well as respondent no.5 but
Mr. Krishna Mohan, learned counsel for
respondent no.2 has placed the certified
copy of the C.H. Form 45 before the Court,
which is taken on record. Copy of the
Khatauni of 1429-1434 fasli has been
annexed as Annexure No.2 to the counter
affidavit although the petitioners have not
annexed the copy of the khatauni along
with
the
writ
petition,
which
also
demonstrates that plot no.1096 area 0.1010
11 All. Ram Babu Vs. State of U.P. & Ors.
927
hectare is recorded as bhumidhari plot of
both parties.

10. I have considered the case law cited
by learned counsel for the petitioners as well as
learned Additional Chief Standing Counsel for
the State-respondents and after thorough
consideration, Court is of the view that plot in
dispute is recorded as bhumidhari plot in C.H.
Form 45 as well as Khatauni prepared by the
authorities, as such, no further investigation is
required by the Court to determine whether the
plot is agricultural plot or abadi. If the entry of
C.H. Form 45 as well as Khatauni are not
correct then the petitioners should avail the
proper remedy for correcting the revenue entry
in accordance with law.

11. Considering the entire facts and
circumstances of the case, no useful purpose
will be achieved by remanding the matter to the
trial Court to re-examine the issue of
maintainability of suit on the ground of abadi
land/bhumidhari land as final revenue entry
fully demonstrate that plot in dispute is recorded
as bhumidhari of petitioners as well as
respondents.

12. Considering the entire facts and
circumstances, no interference is required in the
matter.

13. The writ petition is dismissed
accordingly. However, trial Court is directed to
conclude the proceeding of the pending suit in
accordance with law.
----------
(2023) 11 ILRA 927
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.09.2023

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Writ-C No. 29722 of 2023

Ram Babu ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vinod Kumar Patel

Counsel for the Respondents:
C.S.C

Civil Law - U.P. Panchayat Act, 1947 -
Sections 28-A & 28-B - U.P. Revenue Code,
2006 - Sections 60, 62, 72 & 73 -
Petitioner claiming to be authorised by
Gram Panchayat, filed instant writ petition
alleging that on pasture land, respondent
no. 4 started illegal construction and
despite his complaint, authorities taken no
action - Objections regarding statutory
provisions not followed for filing petition -
From perusal of specific provision, it is
clear that to file any suit or proceeding on
behalf of Gaon Sabha, Land Management
Committee must pass resolution, obtain
permission from S.D.M. or Collector and
proceed through panel lawyer under
Section 72 of Code, 2006, unless prior
written permission granted by Collector to
engage private counsel - Petitioner relied
on authority letter claiming authorization
from Land Management Committee to file
petition, said letter is vague, lacks copy of
referenced resolution, letter issued by
pradhan to himself without date, no
averment that S.D.M. or Collector ever
granted permission to file writ petition -
Petition not maintainable, dismissed -
(Para 2, 24, 37, 38)

Writ petition dismissed. (E-13)

List of Cases cited:

1. Land Management Committee Nainu Patti
through Pradhan Gaon Samaj Pergana and
District Mathura Vs Board of Revenue, U.P.
Allahabad & ors. reported in 1965 ALJ 858,
(Paras 3 to 7)