Prakash Krishna, J. - (1.) The petitioners and the private respondents namely Vinod Kumar and Desh Deepak belong to same family. Late Baldev Prasad Gupta was the common ancestor of the parties. He on 19-12-1989 executed a will in respect of his movable and immovable properties situate in village Bhikhampur, Samrathpur and Mohalla Nevilganj, Auraiya, Pargana Auraiya, District Etawah in favour of his wife Smt. Gargi Devi and sons Vinod Chandra, Desh Deepak, Avinash Chandra and unmarried son Nirmal Chandra. Nirmal Chandra married to Smt. Manju Gupta, the petitioner no. 1 herein. The petitioner no. 2 is minor son of this wedlock.
(2.) A suit for partition under Section 176 of U.P.Z.A. & L.R. Act -Vinod Chandra v. Desh Deepak was filed in the court of Sub Divisional Officer, Auraiya claiming 1/4th share in khata no. 69 consisting of eight plots wherein on 16-6-2007 the trial court passed a preliminary decree holding that the plaintiff has got 1/4th share, the petitioner nos. 1 and 2 have got 1/4th share and share of the petitioner no. 3 as 1/8th share. The case of the petitioners is that the said preliminary decree was passed without any information or notice to them. Further case is that in pursuance of the preliminary decree, proceedings for preparation of final decree were taken out, at the instance of plaintiff Vinod Chandra. No notice for preparation of final decree was served on the petitioners. However, the court passed a final decree carving out the kurras of the parties. On coming to know about the exparte decree, the petitioner no. 1 filed an application dated 11-6-2008 praying that she should also be allotted some road side land. The kurras were carved out without giving any information either to her or to her minor son. It was further pleaded that she has been allotted small parcels of land at several places which may create trouble in future. The said application was rejected by the order dated 21-7-2008 by the trial court and the order of the trial court has been confirmed in appeal no. 36 of 2008 by judgement dated 25-2-2009. The said order has been further confirmed in second appeal by the Board of Revenue, vide order dated 26-5-2009. Challenging these orders, the present petition has been filed.
(3.) In the counter affidavit, it has been pleaded that the notice was given to the petitioners and they had knowledge of partition case and the proceedings; they appeared before the trial court and no illegality has been committed in carving out the kurras. Further case is that all the four co-sharers, who are parties to the partition suit, were allotted their kurras on both sides of main road and have been given appropriate areas as per their share. The final decree has been passed by the trial court in accordance with law within the knowledge and notice of the petitioners and other co-sharers and they have made no objection regarding the kurras allotted to them. The writ petition is concluded by findings of fact. The allegation that the road side land has not been allotted to the petitioners has been denied. The allegation that there is water logging in the land which fell in the share of the petitioners has also been denied.;