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SMT. SUDHA RANI W/O AJAY KUMAR & ANOTHER versus SMT.KIRAN DEVI & OTHERS

High Court of Judicature at Allahabad

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Smt. Sudha Rani W/O Ajay Kumar & Another v. Smt.Kiran Devi & Others - SECOND APPEAL No. - 1005 of 2007 [2007] RD-AH 16406 (5 October 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 27

Second Appeal No. 1005 of 2007

Smt. Sudha Rani and another Vs. Smt. Kiran Devi and others

~~~~

Hon. Dilip Gupta, J.

Defendant Nos. 3 and 4 have filed this Second Appeal for setting aside the judgment and decree dated 15.9.2007 passed by the learned Additional District Judge, Court No.12, Bulandshahr by which the Civil Appeal, that had been filed by them, was dismissed.

Original Suit No. 712 of 1997 was filed for partition by Smt. Kiran Devi with the prayer that lot of the plaintiff's 1/4th share in the property be prepared separately and the plaintiff be delivered actual and physical possession of the same. It was stated that the plaintiff and the defendants Ist set (Smt. Bina and Smt. Dipti Singhal) had purchased 3/4th share in the property through a registered sale-deed dated 9.6.1997 and, therefore, the plaintiff was a co-sharer in the said 3/4th share to the extent of 1/4th. The defendants IInd set (Vijay Kumar, Smt. Sudha Rani, Ajai Kumar, Smt. Rajbala, Smt. Sabita and Smt. Beena) had purchased the remaining 1/4th share of the property through a registered sale-deed dated 17.7.1997. The plaintiff wanted her share to be separated but as the defendants were not ready to partition the property, the suit was filed.

The suit for partition was decreed and a preliminary decree was prepared. On 9.5.2000 the plaintiff Smt. Kiran Devi filed an application for preparation of the final decree. The Amin submitted the report dated 25.7.2000 along with the map proposing the lots of the respective parties. Some of the defendants filed objections. The Executing Court, while preparing the final decree on 16.5.2001 carved out lots of the respective parties. The lot of the defendants Smt. Sudha Rani and Vijay Kumar (defendant Nos. 4 and 3 respectively) measured 3'x8" in the front and corresponding depth so as to make it 1/4th share of the entire property.

Feeling aggrieved, the said defendants filed Civil Appeal No. 149 of 2001 which was dismissed on 22.1.2002. They then filed a Second Appeal in this Court being Second Appeal No. 138 of 2002 (Smt. Sudha Rani and another Vs. Smt. Kiran Devi and others) which was partly allowed by means of the judgment and decree dated 9.7.2002. The relevant portion of the judgment is quoted below:-

" A statement has been made before me that the parties are agreeable that defendant-appellants be given frontage 5 feet 9 inches and depth of the lot of the said defendant appellants shall be correspondingly reduced so as to maintain 1/4th share in the property.

In view of the above statement made by the learned counsel for the parties, I direct the Court below to carve out lots afresh wherein lots of defendant appellant shall have 5 feet 9 inches frontage and such depth which shall make it 1/4th share of the disputed property.

It is made clear that both the parties on either side shall separately erect partition wall on the area in their share.

The impugned order is accordingly modified with a direction to reallocate shares of the parties in conformity of the direction given above."

Pursuant to the aforesaid judgment of this Court the Amin prepared a map which gave 5'x9" frontage to the lot of the appellants. This map was submitted along with the report dated 24.9.2003. The plaintiff filed objections to the said Amin's report and by the order dated 25.5.2004 the report and map were rejected and it was ordered that a fresh map be prepared in accordance with the directions contained in the order. This order was challenged by the present appellants by filing Civil Revision No. 139 of 2004 which was dismissed by the order dated 12.8.2004. The writ petition filed in this Court by Smt. Sudha Rani to challenge this order was finally disposed of by means of the judgment and order dated 15.10.2004 with the following observations:-

"The counsel for the petitioner in reply to the argument advanced by Sri R.B. Singhal has stated that since the Amin has been directed by the Judge Small Causes Court to prepare the map in accordance with direction issued on 21.5.2004 which is impugned in the present writ petition, he will have no opportunity to raise his objection. I feel that the apprehension of the counsel for the petitioner is not well founded. The parties will have ample opportunity to raise their objections even in respect of map which will be prepared on the basis of the order dated 25.5.2004. I am not inclined to interfere in the writ petition at this stage. In fact the factual matter that has been raised in the writ petition, cannot be decided in exercise of jurisdiction under Article 226 of the Constitution of India."

A fresh map was then prepared on 3.7.2004. The appellants filed objections against the said map but these objections were rejected by the order dated 17.1.2005 and the report and the map submitted by the Amin were accepted. A decree was ordered to be prepared in accordance with the partition plan. The decree was then prepared. The present appellants filed Civil Appeal No. 72 of 2005 against the said decree which was dismissed on 15.9.2007. The present Second Appeal has been filed against the judgment and decree dated 15.9.2007.

I have heard Sri Ajit Kumar, learned counsel for the appellants and Sri M.A. Qadeer, learned counsel appearing for the plaintiff and defendants Ist set.

Learned counsel for the appellants submitted that the partition plan that has now been prepared is not in accordance with the directions issued by this Court in Second Appeal No. 138 of 2002 inasmuch as though the lot of the appellants has frontage of 5'x9" but the back portion is only 1'x9" in width. According to him the lot of the appellants should have been in a rectangular form and the depth should have been reduced so as to make his share 1/4th.

Sri M.A. Qadeer, learned counsel for the plaintiff and defendants Ist set, however, submitted that there is no infirmity in the partition plan that has now been prepared as it is in conformity with the directions issued by this Court in the aforesaid Second Appeal on 9.5.2002.

I have carefully considered the submissions advanced by the learned counsel for the parties.

The property in dispute bounded by ABCD is not in a rectangular form. The plaintiff Smt. Kiran Devi along with defendants Ist set (Smt. Bina and Smt. Dipti Singhal) have 3/4th share in the property. The remaining 1/4th share is of the defendants IInd set. The plaintiff and the defendants Ist set desired that their lot may be prepared at one place. Initially the lot, that had been prepared for the appellants had a frontage of only 3'x8". In Second Appeal No. 138 of 2002 a statement was made by the parties before the Court that they were agreeable that the appellants be given frontage of 5'x9" and the depth of the lot be correspondingly reduced so as to maintain 1/4th share in the property. Under the plan that has now been prepared pursuant to the order passed by this Court in Second Appeal, the appellants have been given a frontage of 5'x9" but the back portion width is 1'x9". It is the contention of the learned counsel for the appellants that the lot should have been prepared in a rectangular form and the width should not have been gradually decreased. The Courts below have rejected this contention holding that the plan has been prepared in accordance with the directions issued by this Court in the Second Appeal. It is not in dispute that the area that has been given to the appellants is 1/4th of the entire property. The frontage remains 5'x9" but there is a gradual reduction in the width so as to make the width of the back portion only 1'x9". The total area of the plot which was to be partitioned is 34.08 sq. mts. The appellants have 1/4th share i.e. 8.52 sq. mts., while Smt. Kiran Devi, Smt. Bina and Smt. Dipti Singhal have 3/4th share i.e. 25.56 sq. mts. The appellants have been given the lot indicated by ABFE which is 8.50 sq. mts. while Smt. Kiran Devi, Smt. Bina and Smt. Dipti Singhal have been given the lot indicated by EFCD which is 25.57 sq. mts. The Courts below have rejected the objections filed by the appellants on cogent grounds. The partition plan could have been prepared in the manner prepared by the Amin or in the manner suggested by the appellants. The Courts below, in their discretion, have accepted the plan prepared by the Amin. The lot of the appellants extends up to the entire depth of the plot and if the contention of the appellants is accepted, then the lot would end before the depth of the plot so as to give certain portion to the plaintiff and defendant Ist set. This was not found to be proper and indeed it would not be proper because it may create problems when the plaintiff and defendant Ist set partition their share. In my opinion, the Courts below have committed no illegality in accepting the partition plan prepared by the Amin and it cannot be said to be contrary to the directions issued in Second Appeal on 9.5.2002.

There is, therefore, no merit in this Second Appeal as no substantial question of law arises for consideration. It is, accordingly, dismissed.

Dt/-5.10.2007

Sharma


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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