Allahabad High Court | Primacy Must Be Given to Family Settlements Acted Upon by Co-Tenure Holders in Partition Disputes | Recognition Under U.P. Revenue Code, 2006
Sanchayita Lahkar
The High Court of Judicature at Allahabad, Single Bench of Justice Alok Mathur has held that in partition disputes under the U.P. Revenue Code, 2006, primacy must be given to family settlements that have been duly acted upon by co-tenure holders. Allowing a writ petition against an order of the Uttar Pradesh Board of Revenue, the Court set aside the remand of the matter for fresh adjudication and restored the findings of the Sub-Divisional Magistrate and the Additional Commissioner, which had recognised an oral family partition (Vahami Batwara) as valid under Rule 109(5)(g) of the 2016 Rules
The matter arose out of a dispute concerning partition of agricultural land recorded in the name of one Razaq, who passed away in 1960. He was survived by three sons, Jumai, Siddiqui, and Birahim. Jumai had three sons, namely Rajjab Ali, Abdul Hasan, and Taami. Siddiqui had three sons, Jalil alias Jami Ahmad, Poosu, and Ali Hasan. Birahim had one son, Shahadat Ali, the petitioner. The second petitioner is his wife.
On 26 October 2015, Rajjab Ali instituted a suit before the Sub-Divisional Magistrate, Mahsi, Bahraich, seeking legal partition of plot No. 572, measuring 0.617 hectares. The plaintiff claimed that the land was ancestral property and demanded allocation of land adjacent to the Bahraich–Chahlari Highway. The plaint acknowledged that oral partition had already taken place, but asserted disputes persisted over land revenue payments and specific possession.
During the proceedings, defendants admitted the occurrence of an oral partition. It was recorded that Shahadat Ali had sold a portion of his share to his wife, and petitioner No. 2 had purchased Taami’s share through a registered deed dated 7 November 2002, leading to her name being mutated. A preliminary decree dated 22 August 2016 determined shares of the parties, with petitioners jointly holding 4/9, and others holding proportional shares. A Kurra report was prepared on 14 August 2020 and objections filed by Rajjab Ali were rejected. The final decree was passed on 31 August 2020.
The Sub-Divisional Magistrate found that the request for land adjacent to the highway was untenable, as possession was based on family settlement and several parties had constructed houses. The Magistrate noted that subsequent registered sale deeds described exact boundaries, reinforcing the partition already acted upon.
Aggrieved, Rajjab Ali and others appealed to the Additional Commissioner, Devi Patan Division, Gonda, claiming violation of Rule 109(5)(c) of the U.P. Revenue Code Rules, 2016, which required proportionate distribution of land adjacent to roads. The Additional Commissioner dismissed the appeal, holding that Vahami Batwara had been admitted, parties were in settled possession, and sale deeds confirmed the arrangement.
Subsequently, a second appeal was filed before the Board of Revenue, contending that the Kurra was prepared illegally and not in compliance with Rule 109(5)(c) and (f). The Board allowed the appeal on 17 June 2025, set aside previous orders, and remanded the matter with directions to equally allot portions adjacent to the district highway.
The petitioners challenged this order before the High Court, asserting that Rule 109(5)(g) applied in cases of family settlement, overriding sub-clauses (c) and (f). They relied on sale deeds executed between 1997 and 2002, each recording metes and bounds, as evidence of partition. The respondents argued that co-tenure holders were entitled to proportionate shares of valuable land adjoining highways regardless of prior possession.
The Court observed: “The fact of Vahami Batwara has been accepted by the opposite party No. 2, namely Rajjab Ali, who initiated the present litigation… 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.”
“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.”
The Court discussed the principles of family settlement, stating: “The object of the family arrangement is to protect the family from long-drawn litigation and perpetual strife, which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family.” It further quoted Supreme Court authority: “The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds.”
Referring to Rule 109(5) of the Rules, 2016, the Court recorded: “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.” It clarified the sequence of application, giving primacy to sub-rule (g) in cases of family settlement, then sub-rule (e) in cases of separate possession, and only thereafter applying sub-rules (a) to (f).
The Court concluded: “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 taking into consideration the family settlement, which is duly recognised in sub-Rule (g).”
The Court held that the trial court had appropriately applied law by recognising the oral partition and subsequent transactions. It stated: “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.”
“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.”
Advocates Representing the Parties:
For the Petitioners: Mohammad Aslam Khan, Senior Advocate; Faiz Ahmad Khan, Advocate
For the Respondents: Dr. Krishna Singh, Standing Counsel; C.S.C.; Pankaj Gupta, Advocate; Pt. Devesh Kumar Mishra, Advocate
Case Title: Shahadat Ali and Another v. Board of Revenue, U.P. and Others
Neutral Citation: 2025: AHC-LKO:51495
Case Number: WRIT - B No. - 669 of 2025
Bench: Justice Alok Mathur
