Deepak vs Addl. Commissioner (Admn.), Gorakhpur and Others

Prakash Krishna, J.—Heard Sri S.K.Purwar, learned counsel for the petitioner and Shri Rakesh Srivastava, learned counsel for the respondent Nos.4 and 5.

The present writ petition arises out of the proceedings of preparation of final decree in a partition suit. There is no dispute with regard to the extent of share of the parties. It has been held that each party has half share. In pursuance of the preliminary decree, Qooras were carved out. The petitioner who is a purchaser from one of the co-sharers filed objection that he should be allotted the land on which he has been found to be in actual possession. The said plea has not found favour with the Courts below.

Challenging the order passed by the Courts below, the learned counsel for the petitioner submits that since he has purchased the specified portion out of the property in question and he is in actual possession of the said portion of the land, he should have been allotted the land on which his possession has been found. In this regard, reliance has been placed on Rule 131(e) of the U.P.Z.A. & L.R. Rules. In contra, Shri Rakesh Kumar Srivastava submits that the Qooras have been rightly carved out after taking into consideration the relevant facts and circumstances of the case. He has placed reliance upon Sub-clause (e) of Rule 131 of the aforesaid Rules. He further submits that equitable consideration has been made while carving out the Qooras in as much as both the parties have been given the land along the road side in equal shares.

Considered the respective submissions of the learned counsel for the parties and perused the record. The learned counsel for the petitioner could not disclose as to when the petitioner purchased the property in dispute. It is not clear as to whether the petitioner purchased the property either before filing of the suit or during its pendency. Be that as it may, the fact remains that the petitioner is purchaser from one of the co-sharers. He cannot insist that he should be allotted a particular portion out of the property in dispute. No illegality or perversity could be pointed out by the learned counsel for the petitioner with regard to the proposed Qooras. The proposed Qooras are equitable in as much as both the parties have been granted land along the road. It is a matter of common knowledge that a land along the roadside commands higher valuation than other land. So far as the applicability of Sub-clause (e) of the Rule 131 is concerned, the said Rule talks of separate possession of a tenure holder. It also uses phrases as for as possible. It does not speak that in every case a person should be allotted the land on which he has been found in separate possession. It means that equity should also be taken into consideration while carving out the Qooras.

I find no merit in the writ petition. The writ petition is dismissed summarily.