# Sadaphal Singh alias Angnu Singh v. Hirday Narain Singh and another - **Citation:** (2005) 1 ILRA 326 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2005-02-28 - **Case number:** Second Appeal No. 1172 of 1996 - **Bench:** S.N. Srivastava - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sadaphal-singh-alias-angnu-singh-v-hirday-narain-singh-and-another-40445 - **Pages:** 4 ## Headnote Code of Civil Procedure- Section 100Family Partition- agricultural land- governed by the U.P. Z.A. & L.R. Act- can be accepted and proceeded by the civil court at the time of passing final decree- when the family partition by meter and bounds has been accepted and established. Held- Para 9 So far as the question whether any private partition/family settlement may take place regarding the land governed by U.P. Zamindari Abolition and Land Reforms Act, this Court is of the view that if a private partition/family settlement by meters and bounds has taken place the court may accept if it is established and final decree may be passed in terms of the same. ## Text 326 INDIAN LAW REPORTS ALLAHABAD SERIES [2005 accepted. He submitted that the appellate order has not been challenged and has become final. He submitted that the cancellation of the option application, amounts to setting aside and sitting over the appellate order, which is without jurisdiction. Learned Standing Counsel supported the order of the revising authority. 5. Having learned counsel for the parties, I am of the view that the impugn ed order can not be sustained. Section 3-B of the Act reads as follows: "3-B, Revision- The Cane Commissioner, in the case of a factory, and the Sugar Commissioner or any other officer, not below the rank of Assistant Sugar Commissioner, authorized by the Sugar Commissioner in this behalf, in the case of a unit, may, in order to satisfy himself as to the legality or propriety of any order passed by an assessing authority under this Act, call for and examine either on his own motion or on the application of the assessee or the State Government, to be made within six months of the date of the order, the record of any proceedings of assessment and pass such orde3rs as he may think fit. Provided that no such application shall be entertained at the instance of a party which has a right of appeal but does not avail of it. Provided further that no enhancement shall be made under this section unless the assessee has been afforded a reasonable opportunity of being heard against the enhancement." 6. Once the appellate authority has set aside the order passed by the assessing authority rejecting the application for option and held that application for option could not be rejected and the said order has become final, revising authority in exercise of power under Section 3-B of the U.P. Sugar Cane Khandsdari Adhiniyam, 1961 can not reject the option application. Order dated 10.2.2002 passed by the assessing authority was only a consequential order to the appellate order. Once the issue with regard to the acceptance of the option has been adjudicated and has become final from the stage of the appellate authority, it could not be cancelled by the revising authority in exercise of revisional power under section 3-B of the Act. In fact revision of order dated 10.1.2002 which was passed in pursuance of appellate order amounts of revising the appellate order, thus it is without jurisdiction. 7. In the result, writ petition is allowed. Order dated 21.06.2002 is quashed. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 28.2.2005 BEFORE THE HON'BLE S.N. SRIVASTAVA, J. Second Appeal No. 1172 of 1996 Sadaphal Singh alias Angnu Singh ...Appellant Versus Hirday Narain Singh and another ...Respondents Counsel for the Appellant: Sri V.K. Singh Counsel for the Respondents: Sri Bajrangi Misra 1 All] Sadaphal Singh alias Angnu Singh V. Hirday Narain Singh and another 327 Code of Civil Procedure- Section 100Family Partition- agricultural land- governed by the U.P. Z.A. & L.R. Act- can be accepted and proceeded by the civil court at the time of passing final decree- when the family partition by meter and bounds has been accepted and established. Held- Para 9 So far as the question whether any private partition/family settlement may take place regarding the land governed by U.P. Zamindari Abolition and Land Reforms Act, this Court is of the view that if a private partition/family settlement by meters and bounds has taken place the court may accept if it is established and final decree may be passed in terms of the same. (Delivered by Hon'ble S.N. Srivastava, J.) 1. This Second Appeal has been preferred by plaintiff- appellant against the judgment and decree dated 30.11.1996 passed in Civil Appeal No. 42 of 1995 confirming the judgment and decree dated 11.2.1994 passed by trial court in original suit no. 577 of 1990. 2. Plaintiff filed a suit for cancellation of sale deed executed by Hirday Narain Singh defendant No. 1 in favour of Shyam Narain Singh defendant no. 2 on the ground that there was a private partition between the plaintiff and defendant no. 1 in which out of land of plot no. 274 area 19 biswa and in plot no. 272 out of 2 Bigha 10 Biswa 11 Dhoor, 15 Biswa 15 door was given to defendant no. 1 and plaintiff was given remaining area of plot no. 272 1 Bigha 14 Biswa and 16 door and both are in actual possession in respect of their area, but defendant no. 1 executed sale deed in favour of defendant no. 2 on 28.6.1988 showing one half share of total area of plot no. 272 in respect of Shyam Narain Singh defendant no. 2 , the sale deed is liable to be cancelled. 3. Defendants denied plaint allegation and urged that both (defendant no. 1 and plaintiff) are real brothers and are co-tenants to the extent of one half share. They denied any private partition and also said that there is no reference of any division of holding in re venue record. Defendant no. 2 purchased 1⁄2 share of plot no 272 by defendant no. 1 on consideration, which has also been mutated in the name of defendant no. 2 in the revenue record. Various other pleas were also taken in written statement. 4. Trial court on consideration of evidence on record decreed the suit in part canceling the sale deed in respect of sale of the southern portion of plot no. 272 but maintained the sale deed in terms of decree of one half share in the property in dispute. This judgment and decree was affirmed in civil appeal referred by plaintiff. At the time of admission, this Court passed following orders regarding substantial question of law. "Heard learned Advocates appearing for the appellant. Duly considered the submission. Substantial question regarding the family partition u/s 176 of U.P.Z.A. and L.R. Act has been raised. In the circumstances, it is admitted. Heard learned counsel for the parties. 5. Learned counsel for appellant urged that in the sale deed itself defendant Hirday Narain Singh has admitted private 328 INDIAN LAW REPORTS ALLAHABAD SERIES [2005 partition and claimed southern portion of plot no. 272. He urged that recital in the sale deed as well as other material on record, there was a private partition between the parties. Learned counsel for appellant referred certain other documents filed along with stay extension application supported by affidavit to prove that private partition was there. It was urged that the finding of courts below to the effect that there was no partition between the parties and the sale deed is valid to the extent of 1⁄2 share only is vitiated in law. 6. In reply to the same, learned counsel for the defendant-respondents urged that findings of the courts below to the effect that there was no private partition as urged by plaintiff does not suffer from any illegality and supported by evidence. 7. After consideration of arguments of learned counsel for the parties, careful consideration of judgments of courts below and material on record, I am of the view that courts below rightly held that there was no private partition/family settlement between the parties. Though both the parties claimed private partition, but they are at variance as regards to the terms of private partition. According to plaintiff, he was allotted one bigha 14 biswas 16 door in plot no. 272 and rest of land in suit that is remaining part of plot no. 272 and plot no. 274- area 19 biswas was allotted to defendant no. 1. To the contrary the defendant's case that he was given southern portion of plot no. 272 in his share. The term of partition of either party is not borne out from the record. No evidence was brought by any of the parties to show the terms of private partition /family settlement. 8. As there is no evidence of private partition, courts below rightly disbelieved the case of private partition/family settlement. Courts below rightly decreed the suit in art and cancelled sale deed for specific portion (southern portion) of plot no. 272. 9. I see no ground to interfere with the findings of fact arrived at by courts below which do not suffer from any error of law. So far as the question whether any private partition/family settlement may take place regarding the land governed by U.P. Zamindari Abolition and Land Reforms Act, this Court is of the view that if a private partition/family settlement by meters and bounds has taken place the court may accept if it is established and final decree may be passed in terms of the same. In the present case, as there is no evidence on record of private partition/family settlement , both the parties continue as co-tenants, plaintiff and defendant no. 1 were having one half share only are entitled to execute/alienate the property as regards to their respective share only. Defendant no. 1 was wholly incompetent to execute sale deed in respect of any specific area of any plot in suit and both co-tenants are entitled to continue as co tenants in accordance with law till actual partition by a decree for partition or by family settlement. In view of the above, Second appeal is dismissed. No order as to cost. --------- 1 All] Ramesh Narain Tripathi and another V. State of U.P. and others 329 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 22.2.2005 BEFORE THE HON'BLE SUNIL AMBWANI, J. Civil Misc. Writ Petition No. 5980 of 2005 Ramesh Narain Tripathi and another ...Petitioners Versus State of U.P. and others ...Respondents Counsel for the Petitioners: Sri Ashok Pandey Counsel for the Respondents: Sri C.B . Yadav, S.C. Home guard Act 1963-S-7(2)-read with U.P. Fundamental Rules as Amended 2002-Rule-56-words and phrases-civil post- whether the Home guards are within the meaning of Government Servants?- held- no- protection, rights and privilege given to holder of civil post can not be a government servantaccordingly the provisions of Rule 56 of U.P. Fundamental Rule are not applicable-for the retirement of home guard- extension of service beyond 58 years can not be given. Held- para 4 It is not necessary that a person holding civil post is a Government Servant or that the protection, rights and privileges given to a public servant makes him a government servant. The Fundamental Rules do not apply to all the holders of civil post and public servants. These are as such not applicable to the petitioner as a Home Guard. The amendments made in Rule 56 are also not applicable to Home guards giving the benefit of extension of service beyond 58 years. Case law discussed: Special Appeal No. 363/97 decided on 326.8.2004 2003 (4) ESC (Alld) 1964 W.P. No. 32279/04 de3cided on 13.8.04 W.P. No. 16093/04 decided on 22.4.04 (Delivered by Hon'ble Sunil Ambwani, J.) 1. Heard learned counsel for the petitioner and Sri C.B. Yadav, learned Chief Standing Counsel for the respondents. 2. The petitioner is serving as a Home Guard. By this writ petition, he has prayed for quashing an order dated 31.1.2005 by which he is sought to be superannuated at the age of 58 years. Learned counsel for the petitioner submits that once the petitioner is called on duty, he holds a civil post. He has relied upon a Division Bench judgment of State of U.P. Vs. Dashrath Singh Parihar in Special Appeal no. 363 of 1997 decided on 26.8.2004, in which this Court had distinguished the judgment in Riasat Ali Vs. State of U.P. and others 2003 (4) ESC (Alld), 1964 and held that when he is not enrolled under Section 7 (2) of the Home Guard Act, 1963, a Home guard can take up a private service and then he would obviously not be holding a civil post but when he was called on duty he holds a civil post and in that case explanation of Section 10 of the Act is not attracted. It was further held that in such circumstances, protection of Article 311 of the Constitution of India is applicable to the petitioner. 3. In this case we are concerned with the applicability of Fundamental Rule 56 which has been amended by U.P. Fundamental Rules, 2002, and by which the age of superannuation of a Government Servant to which these rules apply has been extended to 60 years.