Sanjay Bhatnagar v. Counsel

1. Heard Sri Anupam Kulshrestha, Senior Advocate assisted by Sri Umang Srivastava, learned counsel for the petitioner and the learned Standing Counsel for the respondent nos. 1, 2, 3, 28 & 29. Sri Shyam Mani Shukla has accepted notice on behalf of respondent no. 27.

2. The present petition has been filed challenging the orders passed by the respondent nos. 1, 2 & 3, dated 20.11.2018; 06.11.2017 & 27.08.2013, respectively, arising out of proceedings under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, for division of holding; and the order dated 27.08.2025, passed by the respondent no. 1, rejecting the review application filed by the petitioner for setting aside the order dated 20.11.2018.

3. The facts of the case are that a suit for division of holding was filed by the respondent nos. 4 & 5 alongwith their mother Asha Rani, who is no more. The said suit was initially dismissed as not maintainable on the ground that it is covered by construction over which no agriculture is being carried out. The matter travelled upto this Court in Writ - B No. 50889 of 2011.

4. The aforesaid writ petition was allowed setting aside the orders passed by the Board of Revenue, First Appellate Court and the Trial Court. The matter was relegated back to the Trial Court, directing to frame an issue regarding maintainability of the suit and decide the same in light of the observations made in the said judgment. 2 WRIB No. 2023 of 2026

5. Pursuant to the direction of this Court dated 29.09.2011, the respondent no. 3 by its order dated 27.08.2013, held the suit to be maintainable under Section 176 of the Act of 1950, holding that as there is no declaration under Section 143 of the Act, therefore, the land continues to be agricultural and proceeded to determine the shares of the parties to the suit. The first appeal filed by the petitioner was dismissed by the Commissioner, Bareilly Division, Bareilly, by its order dated

06.11.2017.

6. Aggrieved by the aforesaid order, the petitioner filed second appeal before the Board of Revenue, the respondent no. 1, which was dismissed by the order dated 20.11.2018. The petitioner filed a review application in the second appeal, which has been rejected by the order of the respondent no. 1, dated 27.08.2025.

7. It is contended by the learned Senior Counsel for the petitioner that all the three authorities have decided the issue regarding maintainability of the suit by recording a sole finding that there was no declaration under Section 143 of the Act of 1950, therefore, suit was maintainable. None of the authorities have considered the provisions of Section 331-A, which provides that if any issue regarding maintainability of the suit is raised on the ground of nature of the land sought to be partitioned, the Assistant Collector, Incharge of the Sub Division, has first to proceed to decide the question in accordance with the provisions of Section 143 and 144 of the Act. In support of his contention, the learned Senior Counsel has relied upon judgment of the Hon'ble Supreme Court in the case of Chandrika Singh and others Vs. Raja Vishwanath Pratap Singh and another, (1992) 3 SCC 90. Paragraph 15 of the said judgment is reproduced here under:- "15. We are unable to agree with the said sub mission of Shri Yogeshwar Prasad. In our opinion, the question as to whether a particular land is "land" under section 2(14) of which the provisions of the Act are applicable would require determination of the question whether the land is held or occupied for purposes connected with agriculture, horticulture or animal husbandry and that is a matter which has to be determined either in accordance with the provisions of Sections143 and 144 and if such a determination has not been made and such a question arises or is 3 WRIB No. 2023 of 2026 raised in a suit before a court, the procedure laid down in s.331-A must be followed by the Court. This would be so even in a case where a building exists on the land and the land is claimed to be appurtenant to the building because in such a case it will be necessary to determine the extent of the land that is appurtenant to the building, i.e. whether the entire land or only a part of it is so appurtenant to the building and for the reason is not held or occupied for purposes connected with agriculture, horticulture or animal husbandry. This determination has to be made in accordance with the provisions of Sections 143 and 144 or Section 331-A of the Act."

8. In the present case no determination as required under Section 143 of the Act was adopted, despite the fact that voluminous evidence was filed to show that the entire land is covered by construction and area appurtenant to building. No determination as required under Section 143 was undertaken by the respondent no. 3 before proceeding to decide the suit on merits. The respondent nos. 1 & 2 have erred in upholding the aforesaid findings merely on the ground that there is no declaration under Section 143.

9. Learned Senior Counsel has drawn attention of the Court to the statement of the Lekhpal, who prepared the kurra during pendency of the aforesaid proceedings which categorically states that he has prepared the kurra only pursuant to the direction of the Sub Divisional Magistrate and has not carried out any measurement or visited the spot. He has further stated that the said kurras have not been prepared on the basis of spot inspection. He further has drawn attention of the Court on the report of the Revenue Inspector, dated 02.09.2021, which states that on the spot there exist abadi roads, as such, no measurement is possible according to kurra, nor possession can be handed over to the parties.

10. I have considered the submissions made by learned Senior Counsel for the petitioner and perused the record.

11. The order of the respondent no. 3 deciding the issue regarding existence of abadi over the plot in question has not been decided according to the observations made by this Court in its judgment and 4 WRIB No. 2023 of 2026 order dated 29.09.2011, passed in Writ - B No. 50889 of 2011. The respondent no. 3 has erred in not proceeding to decide the nature of the land on the basis of the procedure prescribed under Section 143 of the Act of 1950 to come to the conclusion whether the land is covered by abadi or agriculture is possible over it. The respondent nos. 1 & 2 have erred in upholding the aforesaid findings without adverting to the observations made by this Court in the judgment and order dated 29.09.2011 and the provisions of Section 331-A of the Act. The order of the respondent nos. 1, 2 & 3 are in the teeth of the law laid down by the Supreme Court in the case of Chandrika Singh (supra).

12. Issue notice to respondent nos. 4 to 26. Steps be taken by registered/speed post, within a week.

13. All the respondents are granted six weeks' time to file counter affidavit. Rejoinder, if any, may be filed within two weeks, thereafter.

14. List thereafter.

15. In the meantime, the effect and operation of the impugned orders passed by the respondent nos. 1, 2 & 3, dated 20.11.2018;

06.11.2017 & 27.08.2013, respectively, shall remain in abeyance and the parties are directed to maintain status quo, regarding nature and possession of the land in dispute, as on today. May 6, 2026 Ranjeet Sahu (Arun Kumar,J.)