ABDUL HAI AND OTHERS Vs. MOHD. NOOR AND ANOTHER
LAWS(ALL)-1965-8-48
HIGH COURT OF ALLAHABAD
Decided on August 06,1965

Abdul Hai And Others Appellant
VERSUS
Mohd. Noor And Another Respondents

JUDGEMENT

S.N. katju, J. - (1.)This is Defendant's appeal arising out of a suit for partition. The Plaintiff Respondent alleged that he had a half share in the plots in suit. It was contended by the Appellants that the suit was not maintainable under Sec. 178(1)(b) of the UPZA and LR Act and Was also barred by limitation. The trial court decreed the suit and its decision was affirmed on appeal by the lower appellate court. It was contended that the court below had erred in holding that the ouster of the Plaintiff was not proved. The Appellants had led evidence to show that there was an attempt on the part of the Plaintiff, after he had left the village, to cultivate the holding in dispute but he was prevented from doing so by the Appellants. The court below repelled the aforesaid suggestion and held that the story as set up by the Appellants was "wholly absurd." I see no reason to disagree with the lower appellate court that the ouster of the Plaintiff from the land in suit was not proved and therefore the suit was pot barred by limitation.
(2.)Learned Counsel further contended that Sec. 178(1) of the ZA and LR operated as a bar to the Plaintiff getting the relief as prayed for by him. Learned Counsel contended that the provisions of Sec. 178 as they stood prior to the amendment by U.P. Act XX of 1954 would apply and the provisions of the Amended Sec. were not applicable.. Sec. 178(1) as it stood before the Amendment of 1954 was as fallows:
178(1) Except as provided in Sub -section (3), whenever in a suit for partition, this Court finds:

(a) that the aggregate area of the holding or holdings to be partitioned does not exceed six and a quarter acres; or (b) that the partition will result in a holding of less than six and a quarter area, the court shall, in the cases falling under Clause (a) instead of proceeding to divide the holding or holdings, direct the sale of the same and a distributing of the proceeds thereof, and pin cases falling under (b) either dismiss the suit or proceed to divide the holding in accordance with such, principles as may be prescribed.

Section 178 as now amended runs thus:

178(1) Except as provided in Sub -section (3) whenever in a suit for division a court finds that the aggregate area of the holding or holdings to be divided does not exceed three and one eight acres, the court shall instead of proceeding to divide the holding or holdings, direct the sale of same and distribution of proceeds thereof, in accordance with such principles as may be prescribed.

(3.)The area of the holding in dispute is 8.82 acres. The trial court divided it into two holdings each having an area of 4.41 acres. The lovies appellate court expressed the view that "the amended Sec. 178 must be, there, fore, construed to be applicable to all pending suits even if at the stage of appeal and the partition of the holding as made by the learned Munsif must be confirmed..." Since the area of the holdings in dispute was 8.82 acres, its partition would result in a holding of less than 6 1/4 acres. According to the provisions of the unamended Sec. 178 in such a case the court could "either dismiss the suit or proceed to divide the holding in accordance with such principles as may be prescribed". Under Rules 159 (3) of the UPZA and LR Rules, "A holding whose aggregate area does not exceed 6 1/4 acres shall be offered for sale to all the co tenure -holders, including the applicant." Illustrations 1 and 2 are as follows:
I. Area of holding -10 acres. A and B co -sharers with equal shares. A holds other land 2 acres in area. Holding to be divided into two portions, of 3 3/4 and 6 1/4 acres. 3 1/4 acres may be allotted to A. 6 1/4 acres sold with first preference to B on the highest bid obtained.

2. Area of holding -13 acres. Co sharers:

A with a share of 6 1/2 acres.

B with a share of 3 1 /4 acres,

C with a share of 3 1 /4 acres.

Holding may be divided into two portions of 6 1/2 acres each.

One portion to be allotted to A, the other portion to be offered for sale with preferences to "B and C on die highest bid obtained. If both exercise their preference then the question shall be decided by drawing lots." It would appear that according to the principles as set out in Rule 159, the holding in dispute could have been divided by offering for sale 6 174 acres of land and giving the remaining land to the other party By the provisions of the amended Sec. 178, the limit of the aggregate area has been reduced from 6 1/4 acres to 3 1/8 acres and therefore the holding of 8.82 acres could easily be divided into two holdings with an area of 4.41 acres each. The question for consideration is whether, in the present case, the court below was right in applying the provisions of the amended Sec. 178 of the Act. Learned Counsel for the Appellant argued that the provisions of the amended Sec. 178 of the Act would not apply to the suit in appeal. I see no force in the contention of the learned Counsel. Even under the provisions of Sec. 178 as they stood prior to the amendment of 1954, the right to a division of the holding existed in the present case. All that could have happened would have been that one party would have got after division of the holding an area of 6 1/4 acres by Sale and the remaining land would have been given to the other party. The right to get the holding partitioned existed at the time when the present suit was instituted. At that time there was a bar to the fragmentation of the holding below an area of 6 1/4 acres. The limit of the bar has now been reduced by the amended provision of Sec. 178 of the Act. It could not be said that the Plaintiff had no right to get a partition of his share and no relief as claimed by him could be given to hereunder the unamended provision of Sec. 178 of the Act. As mentioned above, he was entitled to a decree for partition and all that could have happened under the old law was that one party would have got an area of 6 1/4 acres by sale and the remaining land would have been given to the Other party. Thus the only distinction under the old law and the amended provisions of Sec. 178 of he Act is with regard to the manner of partition and the quantum of land which could be received by a party after division. The amended provisions of Sec. 178 of the Act have now enabled each of the partita to the suit to get half of the total area of the holding in dispute. I see no reason why the principle of dividing the holding in dispute in the suit in appeal as to provided for by the amended Sec. 178 of the Act should not be applied to the present case. The amendment makes a change in the procedure to be adopted while dividing the holding between the parties. There is no change in any substantive rule of law. Nor has any new right been created or any right taken away by the provisions of the amended Sec. 178 of the Act. The right to seek relief for partition existed in the provisions of Sec. 178 of the Act as they stood prior to its amendment and the court was empowered to give a decree for partition. Only in actually dividing the holding certain principles had to be followed Now a change has been made in the aforesaid principles and a holding with an area of 8.82 acres could be divided' into two equal lots. The change in the provision is with reference to the procedure to be adopted in dividing the holding. It would clearly be retrospective and would apply to the suit in appeal. I, therefore, agree with the decision of the court below. The appeal fails and is dismissed with costs. The order staying the operation of the final decree is vacated.

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