# Shahadat Ali & Anr v. Board Of Revenue, U.P. , Lko. & Ors

- **Citation:** (2025) 8 ILRA 750
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-08-29
- **Case number:** Writ B No. 669 of 2025
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shahadat-ali-anr-v-board-of-revenue-u-p-lko-ors-53756
- **Pages:** 11

## Headnote

C.S.C., Pankaj Gupta, Pt. Devesh Kumar
Mishra

Issue for Consideration
Matter pertains to Whether, when an oral family
partition (Vahami Batwara) has already taken
place and acted upon between co-sharers, can
the property be subjected to partition afresh
under S. 117 of the U.P. Revenue Code, 2006

Headnotes
Property Law - Partition Suit - Family
Arrangement/Settlement - Oral Partition
(Vahami Batwara) - U.P. Revenue Code
Rules, 2016 - Rule 109(5)(g) vs. Rule
109(5)(c) and (f) - Applicability - primacy
has to be given to family settlement,
which has been acted upon, and the cotenure holders are in possession of their
respective shares - Lekhpal is bound to
prepare Kurra accordingly under Rule
109(5)(g) of the Rules, 2016 - Family
Arrangement - Binding Effect - Legal
Principles - family arrangement, if bona
fide
and
voluntary,
is
binding
and
enforceable
-
Interpretation
of
Rule
109(5) - Order of Preference - Where the
co-tenure
holders
are
in
separate
possession based on mutual consent or
family settlement, clause (g) of Rule
109(5) governs preparation of Kurra - if
no family settlement exists, clause (e)
applies; and only thereafter, clauses (a) to
(f) may be invoked - Error by Board of
Revenue
-
Misapplication
of
Rule
109(5)(c) & (f) -
Held: Trial court had rightly given effect to the
family settlement (Vahami Batwara) recognized
under Rule 109(5)(g) of the Rules, 2016 - The
2nd
appellate
court,
Board
of
Revenue
committed manifest error in ignoring the
admitted family arrangement and misapplying
clauses (c) and (f) - Primacy must be given to
bona fide family arrangements voluntarily
accepted and acted upon by the parties -
Petition is allowed - Judgment of the Board of
Revenue dated 17.06.2025 is set aside - Orders
of
the
Sub-Divisional
Magistrate
dated
31.08.2020 and the 1st Appellate Court dated
21.12.2021 are affirmed. (Paras
23,33,36,37,38,39,42,43) (E-7)

Case Law Cited
Ravinder Kaur Grewal v. Manjit Kaur, (2020) 9
SCC 706: 2020 SCC OnLine SC 612; Kale v.
Director of Consolidation, (1976) 3 SCC 119

List of Acts
U.P. Revenue Code, 2006; U.P. Revenue Code
Rules, 2016.

List of Keywords
Family settlement - Vahami Batwara - Kurra -
Oral partition - Tenure holder - Highway
adjacent land - Legal partition - Estoppel -
metes and bounds - joint possession - remand
order.

Case Arising From
Order of the Board of Revenue, Uttar Pradesh,
Lucknow, dated 17 June 2025 in Second Appeal,
arising
out
of
the
order
of
Additional
Commissioner, Devi Patan Division, Gonda dated
31 August 2020 and the order of Sub-Divisional
Magistrate, Mahsi, Bahraich dated 21 December

## Text

750 INDIAN LAW REPORTS ALLAHABAD SERIES

10.In
view
of
above,
therefore,
recovery is held to be bad as a consequence
to the order of pay fixation dated 13th July,
2005. This Court is also of the considered
view that such correction in pay fixation
should be within a reasonable period and
that too where employee has retired. In
service jurisprudence, the legal position has
been that employer employee relationship
exists so long as an employee is working in
the establishment as once an employee
attains the age of superannuation, this
relationship comes to an end. This is the
reason why for continuation of disciplinary
proceedings drawn prior to an employee
attaining the age of superannuation, the law
had to be made by State Government
giving special power to Governor to be
exercised
in
such
cases.
In
such
circumstances,
the
said
principle
if
borrowed here, then no such action ought
to have been taken without sanction of the
State Government even in the matter of pay
fixation . In order to arrest this situation,
State Government brought into force the
Government Order in on 16th January,
2007, which has been interpreted by the
Supreme Court in the case of Sushil
Kumar Singhal Vs. Pramukh Sachiv
Irrigation Department and others, 2014
(16) SCC 444. Hence, I consider it
appropriate to apply those principles in the
present case as well to hold that such
fixation beyond reasonable period was
certainly bad and hence the order dated
13th July, 2005 is equally liable to be held
bad on this ground.

11.In view of above, this writ petition
succeeds and is allowed. The order dated
13th July, 2025 directing for re-fixation of the
petitioner w.e.f. 1.1.2005 and consequential
recovery dated 27the September, 2005 passed
by
Superintendent
Engineer,
Minor
Irrigation,
Gorakhpur
as
well
as
Consequential Order of recovery passed by
Executive Engineer Minor Irrigation
Division Gorakhpur dated 13th September,
2005 are hereby quashed.

12.Respondent concerned is directed to
re-fix the pension and post retirement dues of
the petitioner on the basis of last pay drawn
on the date of his retirement i.e. dated 30th
June, 2005. Revised pension and post
retirement dues shall be paid to the petitioner
and recovered amount made shall also be
replaced to the petitioner within next two
months' time.

13.Entire computation shall be done
accordingly in terms of order passed by this
Court and the amount liable to be refunded to the
petitioner shall be credited into account within
the same period. Difference of arrears of pension
and other retirement dues on account of orders
impugned if set aside shall also be calculated and
the amount shall also be credited into account of
the petitioner within the same period.

14.It is made clear that if order remains
uncomplied with, the respondent shall be
liable to be payable interest @ 8 percent over
and above amount to be paid to the petitioner
upon expiry of period of two months till
actual payment is made.
----------
(2025) 8 ILRA 750
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.08.2025

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ B No. 669 of 2025

Shahadat Ali & Anr. ...Petitioners
Versus
Board Of Revenue, U.P. , Lko. & Ors.
 ...Respondents
8 All. Shahadat Ali & Anr. Vs. Board of Revenue, U.P., Lko. & Ors.
751
Counsel for the Petitioners:
Mohammad Aslam Khan, Faiz Ahmad Khan

Counsel for the Respondents:
C.S.C., Pankaj Gupta, Pt. Devesh Kumar
Mishra

Issue for Consideration
Matter pertains to Whether, when an oral family
partition (Vahami Batwara) has already taken
place and acted upon between co-sharers, can
the property be subjected to partition afresh
under S. 117 of the U.P. Revenue Code, 2006

Headnotes
Property Law - Partition Suit - Family
Arrangement/Settlement - Oral Partition
(Vahami Batwara) - U.P. Revenue Code
Rules, 2016 - Rule 109(5)(g) vs. Rule
109(5)(c) and (f) - Applicability - primacy
has to be given to family settlement,
which has been acted upon, and the cotenure holders are in possession of their
respective shares - Lekhpal is bound to
prepare Kurra accordingly under Rule
109(5)(g) of the Rules, 2016 - Family
Arrangement - Binding Effect - Legal
Principles - family arrangement, if bona
fide
and
voluntary,
is
binding
and
enforceable
-
Interpretation
of
Rule
109(5) - Order of Preference - Where the
co-tenure
holders
are
in
separate
possession based on mutual consent or
family settlement, clause (g) of Rule
109(5) governs preparation of Kurra - if
no family settlement exists, clause (e)
applies; and only thereafter, clauses (a) to
(f) may be invoked - Error by Board of
Revenue
-
Misapplication
of
Rule
109(5)(c) & (f) -
Held: Trial court had rightly given effect to the
family settlement (Vahami Batwara) recognized
under Rule 109(5)(g) of the Rules, 2016 - The
2nd
appellate
court,
Board
of
Revenue
committed manifest error in ignoring the
admitted family arrangement and misapplying
clauses (c) and (f) - Primacy must be given to
bona fide family arrangements voluntarily
accepted and acted upon by the parties -
Petition is allowed - Judgment of the Board of
Revenue dated 17.06.2025 is set aside - Orders
of
the
Sub-Divisional
Magistrate
dated
31.08.2020 and the 1st Appellate Court dated
21.12.2021 are affirmed. (Paras
23,33,36,37,38,39,42,43) (E-7)

Case Law Cited
Ravinder Kaur Grewal v. Manjit Kaur, (2020) 9
SCC 706: 2020 SCC OnLine SC 612; Kale v.
Director of Consolidation, (1976) 3 SCC 119

List of Acts
U.P. Revenue Code, 2006; U.P. Revenue Code
Rules, 2016.

List of Keywords
Family settlement - Vahami Batwara - Kurra -
Oral partition - Tenure holder - Highway
adjacent land - Legal partition - Estoppel -
metes and bounds - joint possession - remand
order.

Case Arising From
Order of the Board of Revenue, Uttar Pradesh,
Lucknow, dated 17 June 2025 in Second Appeal,
arising
out
of
the
order
of
Additional
Commissioner, Devi Patan Division, Gonda dated
31 August 2020 and the order of Sub-Divisional
Magistrate, Mahsi, Bahraich dated 21 December
2021.

Appearances for Parties
Advs. for the Petitioners:
Sri Mohammad Aslam Khan, Faiz Ahmad Khan.
Advs. for the Respondents:
C.S.C., Pankaj Gupta, Pt. Devesh Kumar Mishra.

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Mohammad Arif Khan,
learned Senior Advocate assisted by Sri
Mohammad Aslam Khan, learned counsel
for the petitioners as well as Dr. Krishna
Singh, learned Standing Counsel for resp.
nos. 1 and 9 and Sri Pt. Devesh Kumar
Mishra, learned counsel for respondent no.
2.

2. The petitioners have filed the
present writ petition assailing the order of
the Board of revenue dated 17/06/2025
whereby it has allowed the 2nd appeal
752 INDIAN LAW REPORTS ALLAHABAD SERIES
preferred by opposite party No. 2, and set
aside
the
1st
appellate
order
dated
31/08/2020 passed by the Additional
Commissioner,
Devi
Patan
Division,
Gonda as well as the order of the trial Court
dated 21/12/2021 passed by the Sub
Divisional Magistrate, Mahsi, Bahraich and
remanded the matter back for determination
afresh
after
following
the
directions
contained therein .

3. The property which is subject
matter of the present partition dispute was
initially recorded in the name of one Razaq
who was the recorded tenure holder of Plot
No. 572, area 0.588 hectares situated in
Village - Tajwapur, Pargana - Fakharpur,
Tehsil - Mahsi, District - Bahraich. Razaq
died in 1960, and was survived by 3 sons
namely Jumai, Siddiqui and Birahim. The
1st son Jumai, had 3 sons namely Rajjab
Ali (respondent No. 2), Abdul Hasan
(respondent No. 7) and Taami, (who was
initially made respondent No. 6 in the
present writ petition but was deleted by
order of this Court dated 24/07/2025),
while Siddiqui had 3 sons namely Jalil @
Jami Ahmad, Poosu, Ali Hasan and lastly
Birahim had one son Shahadat Ali who is
the petitioner no.1, while petition No. 2 is
the wife of petitioner no.1.

4. The suit was filed by opposite party
No. 2 on 26/10/2015 in the Court of Sub
Divisional Magistrate, Mahasi, District
Bahraich stating that property situated at
plot No. 572/0.617 hectares is the ancestral
property of petitioner no.1 and respondent
no. 2, 3, 4, 5 and 7. The 3 sons of Razaq
namely Jumai, Siddiq and Birahim had
1/3rd share each in the property, and after
their death their sons have inherited their
share of the property in equal shares to
which they were entitled. Taami son of
Jumai has sold his share in favour of
petition No. 2 while Abdul Hasan has sold
his share to respondent No. 2.

5. In the plaint preferred by opposite
party No. 2 it was clearly stated that oral
partition has already taken place between
all the tenure holders, but with regard to
payment of revenue rent and exact location
of their plots is a constant dispute occurring
between the parties and also as the
Highway having come up known as the
Bahraich - Chahlari Highway adjacent to
the disputed plot the plaintiff demanded
that he be given a share adjacent to the road
which has been denied and also that they
want legal partition due to which the suit
was being filed.

6.
In
the
suit
proceedings
the
defendants therein appeared and opposite
party No.s 3 and 4 filed joint written
statement clearly admitting the facts
pertaining to the family partition having
already taken place. It was further stated
that petitioner No.1 who has 1/3rd share,
out of which he has sold 2/3rd of his share
to his wife through registered sale deed
17.1.2007 and she is in possession of the
said land. Petitioner No.2 had also
purchased the share of Taami under
registered sale deed dated 7.11.2002 and
her name was duly mutated in pursuance of
the sale deed and she is possession over the
said land. It is in aforesaid circumstances
that preliminary decree dated 22.8.2016
were drawn up where share of all the
parties was determined. The share of the
petitioners was determined as 2/9 and
Sahadat Ali son Birahim and Smt. Jannatul
Nisan wife of Shahadat Ali were jointly
given 4/9 share while Jalil @ Jami Ahmad
son of Siddiqui were given 1/9 share each.
Pursuant to the preliminary decree kurra
was directed to be prepared in consonance
with Rule 109 (5) of U.P. Revenue Rule,
8 All. Shahadat Ali & Anr. Vs. Board of Revenue, U.P., Lko. & Ors.
753
2016. The said kurra report was submitted
on 14.8.2020 against which objections were
filed by opposite party No.2 which were
rejected and final decree was passed on
31.8.2020.

7. While preparing final decree Sub
Divisional, Magistrate held that the request
made by the plaintiff for giving more
portion of land on the District Highway has
been rejected and the kurras have been
prepared on the basis of the actual
possession of all the parties on the basis of
family partition which has already taken
place between the respective parties who
are in possession of their respective share
on the basis of the partition and have also
constructed houses on the said lands. He
was further of the view that subsequently
some of the share holders have sold the
land by registered sale deed wherein in the
sale deed the exact location of the land has
been clearly described by clear boundary
and accordingly rejected the objections and
confirmed the kurras prepared by the
concerned Lekhpal on 17.1.2020.

8. Against the decree dated 31.8.2020
an appeal was filed by opposite party Nos.
2, 3 , 4 and 5 before Commissioner, Devi
Patan Division, Gonda.

9. The main grievance raised was that
the partition has been done in clear
violation
of
the
statutory
provisions
contained in Rule 109 (5) (c) of the U.P.
Revenue Code Rules and the appellants
claim their rights to the portion of the land
in equal share which fell adjacent to the
District highway and, therefore challenged
the validity of the Kurra dated 17.1.2020
prepared by the Lekhpal.

10. The Additional Commissioner,
duly considered the contentions of rival
parties and dismissed the appeal. While
dismissing the appeal he returned the
following findings:-

11. He held that there has been
Vahami Batwara between the parties, this
fact is admitted by all the parties and
further all the parties are in possession of
the shares allotted to them as per the said
settlement. To evidence the said fact he
took into consideration that:-

(i) Firstly, the plaintiff/appellant
had clearly stated this fact in his plaint that
a family partition/settlement had taken
place, and Birahim was allotted the plot on
the northern side. Southern side was given
to Siddique and South to Siddiqui there
existed the land Jumai and while all the
three brothers were allotted land land from
South side in equal portion to which they
are in possession. After the death of
Birahim, Siddiqui and Jumai and their sons
are in possession of the said land.

(ii) Secondly, for construction of
canal a portion of the land i.e. 0.80 acres of
land was acquired by sale deed dated
5.3.1997 which was executed in favour of
the Governor of Uttar Pradesh through
Executive Engineer, Saryu Nahar Khand,
Bahraich, which was executed by Birahim
and Jalil, Pushu and Ali Hasan sons of
Siddiqui. The land which was acquired fell
into their share. There is no dispute that
appellant
obtained
compensation/sale
consideration. In the said sale deed a chak
marg has been mentioned on the southern
side which clearly indicates that to the
South of the land of Birahim father of the
petitioner there exists a chak road.

(iii) Thirdly, Taami brother of
Rajjab Ali i.e. opposite party No.2 sold his
entire share in favour of Smt. Jannatul
754 INDIAN LAW REPORTS ALLAHABAD SERIES
Nishan wife of Shahadat Ali by means of
registered sale deed dated 7.11.2002. In the
said sale deed also the boundaries are
clearly stated and south side of the said
land, plot of the petitioner has been
described and accordingly on perusal of the
said sale deeds it was found that all the
share
holders
are
in
possession
of
respective shares and the said family
partition has been accepted by the all the
parties. He further recorded that on both
sides of Gata No.572 there existed a chak
road at the time of family settlement and it
is only after on the northern side when the
district highway was constructed that the
present litigation was initiated claiming
share and access to the said highway.

12. In the aforesaid circumstances the
appellate authority concluded that the
appellant himself has entered to a sale deed
dated 19/09/1998 where he has clearly
described the land with mets and bounds in
the plot of the appellant has been described
on the south side along with the chak marg,
and even in the sale deed executed by
Tammi brother of the appellant sold his
share to Ms Jaintulnisha the boundaries
were clearly demarcated and the plot of the
petitioner was described on the southern
side. He had also looked into the sale deed
executed by Siddiqui and Binahim in
favour of the State government for
construction of canal where also the plots
were clearly demarcated and identified and
accordingly on the faces of the aforesaid
facts he concluded that a family partition
had already taken place and the chorus
have been prepared correctly and no
interference is required in the order of the
trial
court
dated
31/08/2020
and
consequently dismissed the appeal.

13. The petitioner being aggrieved by
the order trial Court as well as by the
appellate court for the 2nd appeal before
the Board of revenue. Before the Board of
revenue was contended that the Khurras
were prepared by the Lekhpal in his report
dated 17/01/2020 illegally and arbitrarily
and contrary to the provisions of Rule
109(c) of the U.P Revenue Court Rules,
2016 (hereinafter referred to as "the Rules,
2016").
It
was
the
case
of
the
petitioner/appellant that the Kurra should
have been prepared in according to Rule
109 (c) and (f) of the Rules, 2016 which
provides that as far as possible no party
shall be given all the inferior or all the
superior class of land, and 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
accordingly
the
property should be allotted proportionately
adjacent to the Road, Abadi or other land of
commercial value.

14. It was contended that irrespective
of the family partition, the land adjacent to
the
District
highway
should
be
proportionately and equally distributed
amongst all the shareholders, and the
Lekhpal not having followed the aforesaid
condition
had
committed
manifest
illegality, and prayed for setting aside of
the order of the trial court in the 1st
appellate court.

15. The Board of Revenue had also
held that the property was in joint
possession of all the tenure holders, and the
shares of individual tenure holders can be
determined only by a legal petition.

16. The arguments of the petitioner
found favour with the Board of revenue,
and the 2nd appeal is allowed and the order
of the trial court as well as the 1st appellate
8 All. Shahadat Ali & Anr. Vs. Board of Revenue, U.P., Lko. & Ors.
755
Court was set aside and the matter was
remitted back to the trial Court for
adjudication of fresh, after holding that all
the tenure holder is were entitled to equal
share in the property falling on the district
highway, and also passed several directions
as to how the Khurras be prepared, and
further directed that the proceedings be
concluded within 6 months.

17. The order of the Board of Revenue
dated 17/06/2025 has been challenged in
the present writ proceedings.

18. The primary issue canvassed by
the learned Senior Advocate appearing on
behalf of the petitioners is that the Khurras
were prepared by the Lekhpal by his report
dated
17/01/2020,
were
totally
in
accordance with the provisions of Rule
109(g) of the Rules, 2016 which provides
that if the court tenure holders are in
separate possession on the basis of mutual
consent or family settlement, the Khurras
shall, as far be possible, be fixed
accordingly. It was vehemently Submitted
that there was no infirmity in the order of
the trial court as well as the 1st appellate
court where the entire evidence was
considered specially the fact that that there
was a family partition on the basis of
mutual consent and all the shareholders
were in possession of the respective shares.

19. It was submitted that in case there
is a family settlement, and the tenure
holders are in separate possession, then
Rule 109(5) (g) would prevail and there
would have been no occasion to prepare the
Khurras in accordance with Rule 109(5) (c)
&(f) of the Rules, 2016.

20. Shri M.A. Khan, Senior Advocate,
argued
that
the
record
contains
overwhelming evidence confirming that all
tenure holders had mutually accepted the
family partition and were in possession of
their respective shares accordingly. He
stated that the Sub-Divisional Magistrate,
while adjudicating the suit under Section
117 of the U.P. Revenue Code, 2006 had
rightly dismissed the objections raised by
Opposite Party No. 2 against the Khurra
prepared by the Lekhpal on 17/01/2020.

21. Furthermore, it was noted that
even the co-tenure holders did not dispute
this fact, which was clearly supported by
three sale deeds:

(i)
05/03/1997:
The
State
purchased portions of the disputed land
from Birham and Siddiq for construction of
canal.

(ii) 19/09/1998: Opposite Party
No. 2 purchased his brother Abdul
Hassan?s share.

(iii) 17/11/2002: Tommi, brother
of Opposite Party No. 2, sold his share to
Smt. Jaitulnisha.

22. Each sale deed recorded the
precise boundaries of the land sold,
indicating that the transactions of sale of
disputed land were of an exact plot of land
on the basis of metes and bounds rather
than
mere
undivided
shares,
further
affirming the existence and acceptance of
the family partition.

23. It was further submitted that the
Board of Revenue has committed a
manifest error of law and fact by not
adequately considering the aspect of family
settlement, and on the other hand, relying
on provisions of Rule 109 (5)(c) and (f) of
the U.P. Revenue Code Rules, 2016 to set
aside the order of the trial Court as well as
756 INDIAN LAW REPORTS ALLAHABAD SERIES
the 1st appellate court. According to the
petitioner, if the matter falls under sub
Clause (e) of Rule 109(5) of the Rules,
2016, then it was not open for the Lekhpal
to invoke sub-Rule (c) and (f) of Rule
109(5) of the Rules, 2016.

24. Counsel for the respondents, on
the other hand, would contend that the
Board of Revenue has correctly appreciated
the entire controversy and held that the
Kurras ought to have been prepared
keeping in mind the principles enshrined in
sub Clauses (c) and (f) of Rule 109(5) of
the Rules, 2016. It was stated that
whenever an application for partition is
moved, it ought to be decided strictly in
light of provisions of Rule 109 of the
Rules, 2016, and submitted that the land
which was adjacent to the District highway
was a valuable piece of land and all the cotenure holders were entitled to an equal
share of the valuable piece of land. It was
also submitted that even if in the sale
deeds, the area of property transferred was
described by metes and bounds, it would
not affect the suit for partition in as much
as a co-tenure holder would be entitled only
to sell his share in the property and the sale
deed would be void to the extent it provides
for transfer of the properties by metes and
bounds.

25. I have heard the learned counsel
for the parties at length and perused the
record.

26. The facts in the present case are
not in dispute, inasmuch as the respondents
are seeking partition of plot No. 572, area
0.588 hectares, situated in the Village -
Tajwapur, Pargana - Fakharpur, Tehsil -
Mahsi, District - Bahraich, which was
recorded in the name of Razzaq. Razaq had 3
sons, namely Jumai, Siddique, and Birahim.
After the death of Razzaq in 1960, all three
sons succeeded to his property, receiving 1/3
share each.

27. There was a Vahami Batwara (oral
partition) between the parties, and on the
basis of the oral partition of the 3 parties were
allotted their share in the disputed property.
The northernmost plot was given to Birahim,
below that plot was the plot of Siddique, and
the southernmost plot was Jumai. The fact of
Vahami Batwara has been accepted by the
opposite party No. 2, namely Rajjab Ali, who
initiated the present litigation by filing a suit
under Section 117 of the U.P Revenue Code,
2006. In the said plaint filed before the Sub
Divisional Magistrate, the fact of family
partition was accepted, and no objection
against the said settlement was stated by him
in the entire plaint. The reason for filing the
suit for partition was said to be the dispute
over the payment of land revenue between
the co-sharers, and while accepting the
Vahami Batwara, it was stated that there was
a requirement to legally partition the said
property.

28. The suit proceedings were resisted
by the petitioners, who were made the
defendants therein, and stated that all the
tenure holders were in possession of the
respective shares after the partition and had
also made houses on the said land.

29. After the partition, 3 sale deeds
have been executed by the tenure holder is
selling their portion of the land, and
especially opposite party No. 2 was the
plaintiff, had himself purchased the entire
share of his brother Abdul Hassan by
means of a sale dated 19/09/1998. In the
sale deed, the purchase was made of the
share which was described in meats and
bounds. The details of the sale deeds are as
under:-
8 All. Shahadat Ali & Anr. Vs. Board of Revenue, U.P., Lko. & Ors.
757

(i)
05/03/1997:
The
State
purchased portions of the disputed land
from
Birham
and
Siddiqui
for
the
construction of a canal.

(ii) 19/09/1998: Opposite Party
No. 2 purchased his brother Abdul
Hassan?s share.

(iii) 17/11/2002: Tommi, brother
of Opposite Party No. 2, sold his share to
Smt. Jaitulnisha.

30. All the sale deeds were brought on
record to evidence the fact that all the
parties have entered into a sale deed by
specially describing the land in metes and
bounds, and they did not merely sell only
their share in the property.

31. On a fair consideration of the
entire facts, the question which is for
consideration before this Court is as to
whether, when a partition has already taken
place amicably between the co-sharers,
should the Court proceed to partition the
property again?

32.
The
object
of
the
family
arrangement is to protect the family from
long-drawn litigation and perpetual strife,
which mare the unity and solidarity of the
family and create hatred and bad blood
between the various members of the family.
Today, when we are striving to build up an
egalitarian society and are trying for a
complete reconstruction of the society, to
maintain and uphold the unity and
homogeneity
of
the
family,
which
ultimately results in the unification of the
society. A family arrangement by which the
property is equitably divided between the
various contenders so as to achieve an
equal distribution of wealth instead of
concentrating the same in the hands of a
few is undoubtedly a milestone in the
administrating of social justice. That is
why the term "family" has to be
understood in a wider sense so as to
include within its fold not only close
relations or legal heirs but even those
persons who may have some sort of
antecedent title, a semblance of a claim
or
even
if
they
have
a
specific
successions so that future disputes are
sealed for ever and the family instead of
fighting claims inter se and wasting
time, money and energy on such fruitless
or futile litigation is able to devote its
attention to more constructive work in
the larger interest of the country. The
Courts have, therefore, leaned in favour
of upholding a family arrangement
instead of disturbing the same on
technical or trivial grounds. Where the
Courts find that the family arrangement
suffers from a legal lacuna or a formal
defect the rule of estoppel is pressed into
service and is applied to shut out plea of
the person who being a party to family
arrangement seeks to unsettle a settled
dispute and claims to revoke the family
arrangement under which he has himself
enjoyed some material benefits.

"A family arrangement is an
agreement between members of the same
family, intended to be generally and
reasonably for the benefit of the family,
either
by
compromising
doubtful
or
disputed rights or by preserving the family
property or the peace and security of the
family by avoiding litigation or by saving
its honour.

The agreement may be implied
from a long course. Of dealing, but it is
more usual to embody or to effectuate the
agreement in a deed to which the term
"family arrangement" is applied.
758 INDIAN LAW REPORTS ALLAHABAD SERIES

Family
arrangements
are
governed by principles which are not
applicable to dealings between strangers.
The court, when deciding the rights of
parties under family arrangements or
claims
to
upset
such
arrangements,
considers what, in the broadest view of the
matter, is most for the interest of families,
and has regard to considerations which, in
dealing with transactions between persons
not members of the same family, would not
be taken into account. Matters which would
be fatal to the validity of similar
transactions between strangers are not
objections to the binding effect of family
arrangements".

33. In other words, to put the binding
effect and the essentials of a family
settlement in a concretised form, the matter
may be reduced into the form of the
following propositions:

(1) The family settlement must be
a bona fide one so as to resolve family
disputes and rival claims by a fair and
equitable division or allotment of properties
between the various members of the
family;

(2) The said settlement must be
voluntary and should not be induced by
fraud, coercion or undue influence:

(3) The family arrangement may
be even oral, in which case no registration
is necessary;

(4)
It
is
well-settled
that
registration would be necessary only if the
terms of the family arrangement are
reduced
into
writing.
Here
also,
a
distinction should be made between a
document containing the terms and recitals
of a family arrangement made under the
document
and
a
mere
memorandum
prepared after the family arrangement had
already been made, either for the purpose
of the record or for information of the court
for making necessary mutation.

34. The aforesaid principle was
affirmed by the Supreme Court in the case
of Ravinder Kaur Grewal v. Manjit Kaur,
(2020) 9 SCC 706 : 2020 SCC OnLine SC
612 at page 723

"25. Be that as it may, the High
Court has clearly misapplied the dictum in
the relied upon decisions. The settled legal
position is that when by virtue of a family
settlement or arrangement, members of a
family descending from a common ancestor
or a near relation seek to sink their
differences and disputes, settle and resolve
their conflicting claims or disputed titles
once and for all in order to buy peace of
mind and bring about complete harmony
and
goodwill
in
the
family,
such
arrangement ought to be governed by a
special equity peculiar to them and would
be enforced if honestly made. The object of
such arrangement is to protect the family
from long-drawn litigation or perpetual
strives which mar the unity and solidarity
of the family and create hatred and bad
blood between the various members of the
family, as observed in Kale [Kale v.
Director of Consolidation, (1976) 3 SCC
119] . In the said reported decision, a
three-Judge Bench of this Court had
observed thus: (Kale case [Kale v. Director
of Consolidation, (1976) 3 SCC 119] , SCC
pp. 125-26, para 9)

"9. ... A family arrangement by
which the property is equitably divided
between the various contenders so as to
achieve an equal distribution of wealth
instead of concentrating the same in the
8 All. Shahadat Ali & Anr. Vs. Board of Revenue, U.P., Lko. & Ors.
759
hands of a few is undoubtedly a milestone in the
administration of social justice. That is why the
term ?family? has to be understood in a wider
sense so as to include within its fold not only
close relations or legal heirs but even those
persons who may have some sort of antecedent
title, a semblance of a claim or even if they have
a spes successionis so that future disputes are
sealed for ever and the family instead of
fighting claims inter se and wasting time,
money and energy on such fruitless or futile
litigation is able to devote its attention to more
constructive work in the larger interest of the
country. The courts have, therefore, leaned in
favour of upholding a family arrangement
instead of disturbing the same on technical or
trivial grounds. Where the courts find that the
family arrangement suffers from a legal lacuna
or a formal defect the rule of estoppel is pressed
into service and is applied to shut out plea of
the person who being a party to family
arrangement seeks to unsettle a settled dispute
and claims to revoke the family arrangement
under which he has himself enjoyed some
material benefits."

35. In the instant case, the trial court
had correctly applied the law and decided
the matter in light of the undisputed
Vahami Batwara between the parties. Such
a partition is recognized by Rule 109(5) of
the Revenue Court Rules, 2016 (hereinafter
referred to as "the Rules, 2016"), which is
quoted herein below:-

"109 (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."

36. Accordingly, while preparing
Kurra the Lekhpal shall first enquire about
the existence of any family settlement, or in
case the poor tenure holders are in separate
possession on the basis of mutual consent,
and if it is so, we shall prepare Kurras
taking into consideration such family
settlement in accordance with sub Clause
(g) of Rule 109 (5) of the Rules, 2016.

37. In case it is found that there is no
family settlement, but the tenure holders
are in separate possession of the joint
760 INDIAN LAW REPORTS ALLAHABAD SERIES
property, then, in case they are not in
excess of their share, prepare the Kurras on
the basis of such possession as per sub Rule
(e) of Rule 109 (5) of the Rules, 2016.

38. The Lekhpal, if he finds that the
conditions contained in sub rules (g) and (e) are
not applicable shall thereafter proceed to partition
the property considering the conditions laid
down in sub Rules (a), (b), (c), (d), and (f) of rule
109 (5) of the Rules, 2016.

39. This Court, upon considering various
judgments of the Supreme Court as well as
provisions of the Revenue Court Rules, is of the
considered opinion that primacy has to be given
to family settlement, which has been acted upon,
and the co-tenure holders are in possession of
their respective shares. In case there is no dispute
between the parties with regard to the family
settlement, the Kurras has to be prepared to take
into consideration the family settlement, which is
duly recognised in sub Rule (g) of Rule 109 (5)
of the Rules, 2016.

40. Applying the aforementioned principle
to the present case, it is evident that the trial court
has appropriately taken into account the fact that
the parties are in possession of their respective
shares pursuant to a family settlement, under
which the land was equally divided among the
three sons of Razzaq. In addition, the court
noted that three sale deeds had been executed
between the parties, each describing the
disputed land with precise boundaries. This
clearly indicates that the parties were ad
idem regarding the partition of the land by
metes and bounds, and that there was no
dispute concerning the validity of the
family settlement, and therefore proceeded
to partition the property in terms of the
Vahami Batwara. It is relevant to note that
even the plaintiff at no stage had assailed
the validity or existence of the Vahami
Batwara.

41. Furthermore, the plaintiff himself had
purchased the share of his brother, Abdul
Hassan, through a registered sale deed dated
19/09/1998. The property acquired was distinctly
described with defined boundaries, further
reinforcing the conclusion that each co-tenure
holder is in possession of his respective share.

42. The 2nd appellate court, which is the
Board of Revenue, had clearly failed to
appreciate the fact of partition having already
taken place on the basis of an oral family
settlement. It further fell into error when they
found a lacuna in the judgment of the trial court,
having ignored the provisions of sub-Rules (a),
(b), (c), (d), and (f) of Rule 109 (5) of the Rules,
2016. As we have already held, in case it is
found that there has been a family settlement
between the co-tenure holder, then primacy has
to be given to such a settlement, the property
ought to be partitioned on the basis of the same,
in case the same has been arrived at bonafidely.

43. In light of the above, the writ petition is
allowed, the judgment of the Board of Revenue
dated 17/06/25 is set aside, and the judgments of
the Sub Divisional Magistrate dated 31/08/2020
and the 1st appellate Court dated 21/12/2021 are
affirmed.
----------
(2025) 8 ILRA 760
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.08.2025

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ B No. 746 of 2025

Urmila Devi ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner: