R. S. Singh, J. - (1.) :-
(2.) THE petitioners have filed this writ petition under Article 226 of the Constitution of India challenging the order of the Board of Revenue dated 31st December, 1976. The facts of the case in brief are that Smt. Kamla Devi, respondent no 3, filed a suit under Section 176 U. P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as Act) against Shankar Lal, father of the petitioners and Badri Prasad, respondent no. 4 impleading Gaon Sabha. The suit was filed on the allegation that plaintiff, Shankar Lal and Badri Prasad have got 1/3 share each in the disputed land. A preliminary decree was accordingly passed declaring all the 3 co-tenure-holders having 1 /3 share each. The preliminary decree passed on 3-2-1966 was not challenged by any of the parties to the suit and became final. On 16-3-1966, the plaintiff filed an application that the total area of the holding in dispute is less than 3 1/8 acre, therefore, the same is required to be sold and for that purpose, the valuation of the plot in dispute be obtained. On receipt of the valuation of the land in dispute, the plaintiff moved another application on 21-11-1966 to the effect that she has no other land except the land in dispute whereas the other defendants co-tenure-holders have other land as well besides the land in dispute. Therefore, the land may be given to her on the aforesaid valuation. The Sub-Divisional Officer on the same date ordered that Shankar Lal and Badri Prasad have other land. The husband of Smt. Kamla Devi had also land. Therefore, all the three are in same position and the land be sold. An appeal was filed by Smt. Kamla Devi against the order of the trial court, which was allowed and the case came back before the Sub-Divisional Officer again. This time again, by order dated 26-11-1968, the Sub-Divisional Officer decided that other land of the other two co-tenure-holders are not used for agricultural purpose, therefore, all the three tenure-holders are in the same position and all the three are entitled to participate in this sale. The plaintiff again challenged the order of the trial court in appeal. The first appellate court allowed the appeal on the finding that the land of the husband of the plaintiff cannot be taken into consideration in this case and further that other two defendant-co-tenure-holders have got other land. Therefore, the plaintiff has got a preferential right to get the land in dispute on the valuation obtained in this case. The order of the Addl. Commissioner was affirmed by the Board of Revenue and the second appeal filed by Shankar Lal was dismissed. The petitioners, who are the sons of Shankar Lal, have challenged the order of the Board of Revenue aswell as that of Addl. Commissioner in the present writ petition before this Court.
(3.) THERE is no doubt about the fact that the total area of the holding in dispute is less than 3 1/8 acre and according to the preliminary decree all the three tenure-holders have got 1/3 share each. According to the plaintiff she has got no land other than the land in dispute whereas other two co-tenure-holders have got other land as well. THEREfore, she has got preferential right of purchase. The case of the other defendant-co-tenure-holder Shankar Lal was that other land held by him had been declared to be Abadi under Section 143 of the Act whereas the husband of the plaintiff has got certain land. THEREfore, he has the preferential right of purchase and not the plaintiff. Badri Prasad, the other defendant-co-tenure-holder also put up his case for preferential right of purchase. Section 176 of the Act gives right to file a suit for division of holding or holdings to bhumidhar and sirdar impleading Gaon Sabha concerned. Section 178 provides that where the court finds the agreegate of the holding or holdings to be divide does not exceed 3 1 /8 acres, the court shall instead of proceeding to devide the holding or holdings, direct the sale of same and distribution of proceeds thereof, in accordance with such principles as may be prescribed. In case, where the area is found to be less than 3 1/8 acre, under Section 179 of the Act the Court shall order for valuation according to the rules and then the court shall offer to sell the same at the price thus ascertained to the co-sharers in the order of preference. If there is only one tenure-holder having preferential right of purchase, he is entitled to get the land on the valuation obtained and the sale proceed is to be distributed amongst other co-tenure-holders according to their respective shares in the holding in dispute. According to section 180 of the Act, if two or more co-tenure-holders having an equal preferential rights severally ask for leave to buy, the court shall order the sale of the same to such one of them as offers to pay the highest price above the price ascertained under Section 179. Rules have also been framed in this regard.;