Decided on March 03,1965

Mst. Kalsooman Appellant
Mst. Noori Respondents


S.N. Singh, J. - (1.)THIS is a Defendant judgment debtor's appeal arising out of a suit Under Section 176 of the U.P. ZA and LR Act. The suit giving rise to the present appeal was instituted by Smt. Noori against the Appellant and the Gram Samaj for partitioning her share in some agricultural plots with an area of 4 bighas 2 biswas. The suit was decreed declaring the Plaintiff's share as 7/16 and a preliminary decree was passed. After having passed the preliminary decree the trial court proceeded with the partition of the property as provided by Sections 178 and 182 of the UPZA and LR Act.
(2.)IT appears that the trial court without sending the record to the Collector for effecting the partition as laid down in Sections 182A and B of the UPZA and LR Act and Order 20 Rule 18 read with Section 54 Code of Civil Procedure proceeded to partition the property itself and passed a final decree though the same had been objected to by the Defendant. In the final decree the Plaintiff got the plot in suit subject to her depositing Rs. 568.58 Paise within one month of the final decree. It was thereafter that the Plaintiff put in an application for recovery of possession against the Defendant.
In this execution proceeding the Defendant judgment debtor again put in an objection to the effect that the final decree passed by the trial court was without jurisdiction. The proper course for the trial court was to have declared the shares of the parties and then should have sent the case to the Collector for effecting actual partition. It was further said that Civil Court had no jurisdiction to direct delivery of possession and that delivery of possession could not be made at the time when the application had been made. This objection of the Defendant judgment -debtor was overruled by the trial court who directed the delivery of possession. An appeal against this order of the trial court was filed by the Defendant judgment -debtor which was also dismissed.

(3.)NOW the Defendant -judgment -debtor has come up in appeal before this Court and he has reiterated his objections that he had taken at the time of the passing of the final decree, at the time of the delivery of possession and at the time of the prayer of delivery of possession by the Plaintiff. In my opinion this appeal has force and should be allowed.

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